SUMMARY 

August 23, 2018 

2018COA122

No. 16CA1801 People v. Allgier — Evidence — Relevancy and 

its Limits — Exclusion of Relevant Evidence on Grounds of 

Prejudice, Confusion, or Waste of Time; Crimes — Possession of 

Weapons by Previous Offenders 

In this case, a division of the court of appeals rejects a plain 

error assertion based on CRE 403 and upholds the trial court’s 

admission of firearms that were the instrumentality of the crime 

(POWPO), although photographs of them had already been 

introduced. 

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 2018COA122

Court of Appeals No. 16CA1801 

El Paso County District Court No. 15CR6162 

Honorable Richard Hall, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Cameron Douglas Allgier, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division III 

Opinion by JUDGE WEBB 

Fox, J., concurs 

Nieto*, J., specially concurs 

Announced August 23, 2018 

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Anne Parker, Alternate Defense Counsel, Denver, Colorado, for DefendantAppellant 

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

VI, § 5(3), and § 24-51-1105, C.R.S. 2017. 
1 

¶ 1 A jury convicted Cameron Douglas Allgier of possession of a 

weapon by a previous offender (POWPO). He seeks a new trial on 

four grounds: 

 the trial court plainly erred in admitting into evidence the 

three firearms that were the basis for the POWPO charge, in 

addition to photographs of them; 

 the trial court erred in admitting hearsay statements of a 

witness, which improperly bolstered that witness’s testimony; 

 the trial court plainly erred in allowing the prosecutor to 

mischaracterize the evidence and the law during closing 

argument; and 

 the cumulative effect of these errors was prejudicial. 

The possible prejudice from admitting firearms into evidence has 

not been addressed in Colorado. 

¶ 2 We affirm. 

I. Background 

¶ 3 During a burglary, several firearms were stolen. M.S., a 

suspect in the burglary, told police that he had seen defendant — a 

previous offender but not one of the burglars — in the back seat of 

a vehicle next to a box containing some of the stolen firearms. M.S. 
2 

also said that the firearms might be found at an apartment in 

Arvada associated with defendant. The police went to the 

apartment, seized three of the stolen firearms, and arrested 

defendant. 

II. Any Error in Admitting the Firearms Was Not Plain 

¶ 4 During the prosecution’s case, a police officer identified two 

photographs depicting the firearms seized from the apartment. 

When the prosecutor offered these photographs, defense counsel 

said, “no objection.” Then the prosecutor had the officer identify 

each of the firearms, which the prosecutor separately offered into 

evidence. Again, as each of the firearms was offered, defense 

counsel said, “no objection.” No colloquy concerning any of these 

exhibits occurred. 

¶ 5 Now, defendant argues that because the firearms were unduly 

prejudicial under CRE 403, the trial court plainly erred in admitting 

them. We conclude that plain error did not occur. 

A. Waiver 

¶ 6 In the answer brief, the Attorney General argued that we 

should not review this contention for plain error because defendant 

waived it. The Attorney General relied on People v. Rediger, 2015 
3 

COA 26, ¶ 59 (Rediger I), aff’d in part and rev’d in part, 2018 CO 32 

(Rediger II). There, defense counsel told the trial court that he had 

read the jury instructions and was “satisfied.” Rediger I, ¶ 47. On 

this basis, the division concluded that instructional error had been 

waived. Id. at ¶ 64. 

¶ 7 But the supreme court reversed in part, holding that counsel’s 

colloquy with the court did not show either actual knowledge or 

intentional relinquishment of the defendant’s right to have the jury 

correctly instructed on the elements of the offense charged in the 

indictment. Rediger II, ¶ 45. Because the supreme court’s decision 

was announced after briefing had closed in this case, we requested 

supplemental briefs on waiver. 

¶ 8 Defendant did not file a supplemental brief. 

¶ 9 The Attorney General’s supplemental brief seeks to distinguish 

Rediger II as follows: 

[T]he waiver issue here does not raise the 

concern regarding counsel’s possible lack of 

knowledge of the basis for making the relevant 

objection. Both Defendant and his counsel 

were clearly aware of the evidence that the 

prosecution was seeking to admit. Therefore, 

counsel’s statement that he had no objection 

to the admission of the guns into evidence 

cannot be attributable to a lack of knowledge 
4 

of the nature of the evidence or to an oversight. 

Unlike Rediger’s “general acquiescence” to the 

jury instructions as a whole, here Defendant 

stated his lack of objection to the admission of 

a very specific and obvious evidence. 

But this attempted distinction assumes something that Rediger II

does not say — exactly what “known” means in evaluating whether 

defense counsel intentionally relinquished a known right. ¶ 39. 

Nor have we found such a definition in any Colorado case 

considering waiver by counsel in the criminal context. 

¶ 10 When the prosecution offers evidence and defense counsel 

responds “no objection,” six explanations are possible.1 

 Defense counsel was uninformed of the legal basis for an 

objection. 

 Defense counsel knew of the legal basis for an objection, but 

did not recognize the factual basis for an objection. 

 Defense counsel knew of both, but failed to connect them. 

 Defense counsel was aware of both, but concluded that 

preserving an objection would be meritless. 

 

1 In identifying these possibilities, we acknowledge the “untenable 

burden” of “assessing counsel’s strategy[, which] does not fall within 

the purview of the trial court.” People v. Gross, 2012 CO 60M, ¶ 11. 
5 

 Defense counsel was aware of both, but concluded that 

admission of the evidence could be of strategic benefit to the 

defendant. 

 Defense counsel was aware of both, but concluded that 

declining to object could sow the seeds for appellate reversal 

under the plain error standard, in the event of a conviction. 

¶ 11 Where subject to any of the first three explanations, “no 

objection” will never constitute a waiver under Rediger II. The 

fourth, fifth, or sixth explanations could get over this hurdle, but 

often the record will not be adequately informative. 

¶ 12 As to the first and second explanations, in some cases defense 

counsel might embellish “no objection” with words indicating 

awareness of the legal or factual basis for an objection. See People 

v. Tee, 2018 COA 84, ¶ 37 (“Opposite to what occurred in Rediger II, 

here the dialogue between defense counsel and the trial court over 

this issue went far beyond a ‘rote statement that [counsel] is not 

objecting . . . .’” (quoting United States v. Zubia-Torres, 550 F.3d 

1202, 1207 (10th Cir. 2008))); see also People v. Kessler, 2018 COA 

60, ¶ 35 (The court declined to apply Rediger II where “defense 

counsel took the position that the tests were admissible and that 
6 

the only question was the weight to be given them.”). But here, 

counsel said only “no objection” when each firearm was offered. 

¶ 13 As to the third explanation, even absent such a statement, our 

supreme court presumes counsel has some level of legal acumen. 

See Stackhouse v. People, 2015 CO 48, ¶ 16 (“‘[W]e presume that 

attorneys know the applicable rules of procedure,’ and we thus ‘can 

infer from the failure to comply with the procedural requirements 

that the attorney made a decision not to exercise the right at 

issue.’”) (citation omitted). As well, the record may compel the 

conclusion that counsel must have been aware of the factual basis 

for an objection. See id. at ¶ 16 (“Allowing a defense attorney who 

stands silent during a known closure to then seek invalidation of an 

adverse verdict on that basis would encourage 

gamesmanship . . . .”). 

¶ 14 So, is the courtroom closure in Stackhouse, which was found 

to have been waived based only on defense counsel’s failure to 

object, different from a routine evidentiary question? Although 

Rediger II did not cite Stackhouse, we conclude that the answer is 

yes, for three reasons. 
7 

¶ 15 First, an unwarranted courtroom closure is structural error, 

while improper admission of evidence is trial error. Compare 

Stackhouse, ¶ 7 (“Such a violation is structural error that requires 

automatic reversal without individualized prejudice analysis.”), with 

People v. Summitt, 132 P.3d 320, 327 (Colo. 2006) (subjecting 

“evidentiary trial error” to “harmless error analysis”). The 

magnitude of the error supports the presumption in Stackhouse

that counsel must have known of the proper legal procedure. ¶ 16. 

¶ 16 Second, and because of the structural error dimension, a 

complete courtroom closure, as in Stackhouse, rarely occurs. In 

contrast, the offer of physical evidence that represents the fruit or 

instrumentality of the crime, sometimes referred to as the “corpus 

delicti” — such as the firearms in this case, or drugs or stolen 

property in other cases — is routine, even if cumulative of other 

evidence or testimony. See State v. Smith, 181 So. 3d 111, 116 (La. 

Ct. App. 2015) (“Fruits and physical evidence of a crime as well as 

weapons used to commit a crime are relevant to show the 

commission of such crime and are therefore generally admissible at 

trial.”). The infrequency of complete courtroom closures supports 
8 

the presumption in Stackhouse that counsel could not have 

overlooked what was happening. 

¶ 17 Third, a courtroom closure requires specific findings, even 

absent any objection by the parties. See People v. Hassen, 2015 CO 

49, ¶ 9 (“[T]rial courts are obligated to take every reasonable 

measure to accommodate public attendance at criminal trials” and 

“must make findings adequate to support the closure.” (first quoting 

Presley v. Georgia, 558 U.S. 209, 215 (2010) (per curiam); then 

quoting Waller v. Georgia, 467 U.S. 39, 45 (2015))). But the trial 

court need not make findings before admitting fruit or 

instrumentality evidence. And the absence of any specific findings 

when the prosecutor offered the firearms into evidence could have 

lulled defense counsel into making a rote “no objection” response. 

¶ 18 These three observations show that the waiver analysis in 

Stackhouse involved a two-step process — the legal requirement of a 

public trial, subject to very limited exceptions, and a courtroom 

closure. But the waiver analysis in Rediger II involved a three-step 

process — the legal requirement that the elemental instruction 

track the charged offense, the elemental instruction that did not 

satisfy this requirement, and defense counsel’s actual recognition of 
9 

the deficiency in the instruction. Still, declining to follow Rediger II

here based on Stackhouse does not end the inquiry. So, we take up 

the fourth, fifth, and sixth explanations for why counsel might have 

foregone an objection. 

¶ 19 As to the fourth explanation — choosing not to make a 

meritless objection — “counsel’s failure to argue the issues in 

summation or to object to the patent omission in the charge implies 

that the issues in question were not thought worth contesting; and 

to reverse on this ground would enhance the opportunities for 

‘sandbagging’ the district judge.” United States v. Whiting, 28 F.3d 

1296, 1309-10 (1st Cir. 1994). To be sure, “[t]he sixth amendment 

right to effective assistance of counsel does not require counsel to 

raise every objection without regard to its merits.” Palmes v. 

Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984). Still, the record 

would rarely explain that counsel — despite actual recognition — 

chose not to raise an objection because it was meritless. 

¶ 20 An appellate court could infer such a conscious choice only by 

examining the evidence and concluding that any objection would 

not have had any obvious purpose. Because at that point the 

waiver inquiry would be the converse of the plain error inquiry 
10 

mandated by Rediger II, ¶ 48 (“An error is plain if it is obvious . . . 

.”), we discern no judicial economy in undertaking it. 

¶ 21 Turning to the fifth explanation, the record could support the 

inference of a strategic calculation to benefit the defense based on 

defense counsel’s later use of the evidence. See United States v. 

Smith, 531 F.3d 1261, 1267 (10th Cir. 2008) (finding waiver where 

counsel not only represented that he had no objection to the 

admission of certain evidence but also relied on the evidence); 

People v. Bondsteel, 2015 COA 165, ¶ 130 (“We decline to review the 

[DNA] match statements for plain error because . . . the record 

creates a strong inference that defense counsel did not object to 

these statements as a matter of strategy rather than due to 

inadvertence.”) (cert. granted Oct. 31, 2016). But here, defense 

counsel did not seek to obtain any benefits from the firearms. Nor, 

for that matter, do we see how counsel could have done so. 

¶ 22 Finally, as to the sixth explanation, the possibility that defense 

counsel did not object “because [counsel] perceives some slightly 

expanded chance to argue for ‘plain error’ later,” Henderson v. 

United States, 568 U.S. 266, 276 (2013) (emphasis in original), is 

most troublesome yet hardest to discern. True, “plain error review 
11 

provides a strategic hedge against potentially risky litigation 

decisions, and encourages defense counsel not to object to 

inadmissible evidence — at least at the margins.” United States v. 

Smith, 459 F.3d 1276, 1302-03 (11th Cir. 2006) (Tjoflat, J., 

specially concurring). But despite extensive recognition by both 

state and federal courts of the sandbagging problem, we have not 

found a test for detecting it as a basis for finding a waiver. 

¶ 23 Of course, an appellate court would be justifiably suspicious 

of sandbagging if the objection was obviously meritorious, 

admission of the evidence would clearly prejudice the defendant, 

and defense counsel was experienced. But because “appellate 

courts are poorly situated to discern litigation strategy,” id., 

drawing the sandbagging inference on direct appeal would be 

speculative.2 And in any event, the “limited scope of [plain error] 

review discourages a defense counsel from sandbagging a district 

judge by holding in his pocket a legal argument.” United States v. 

 

2 “Only after a hearing in which evidence was offered could this 

Court have known why the appellant’s counsel failed to object. 

Perhaps counsel had a certain strategy in mind. Perhaps counsel 

was sandbagging the State. Perhaps counsel was seeking an 

advantage on direct appeal.” State v. Bolen, 632 S.E.2d 922, 930 

(W. Va. 2006) (Maynard, J., dissenting). 
12 

Redrick, 841 F.3d 478, 481 (D.C. Cir. 2016). As well, in the heat of 

battle, even the best lawyers simply make mistakes. See People v. 

Weathers, 338 N.E.2d 880, 883 (Ill. 1975). For these reasons, we 

cannot conclude that defense counsel said “no objection” — not 

once but three times — to feather defendant’s appellate nest. 

¶ 24 As the special concurrence ably points out, the waiver 

question is by no means free of doubt. In the view of some courts, 

“[t]hough a party’s failure to object usually results in a forfeiture 

subject to plain-error review, when the ‘subject matter [is] 

unmistakably on the table, and the defense’s silence is reasonably 

understood only as signifying agreement that there was nothing 

objectionable,’ the issue is waived on appeal.” United States v. Soto, 

799 F.3d 68, 96 (1st Cir. 2015) (quoting United States v. Christi, 682 

F.3d 138, 142 (1st Cir. 2012)). 

¶ 25 But a closer look at some such cases shows that defense 

counsel had earlier recognized the possible need for an objection. 

See United States v. Comstock, 531 F.3d 667, 675 (8th Cir. 2008) 

(“[T]his Court has ‘found pretrial objections waived when an 

appellant’s counsel affirmatively stated “no objection” at trial to the 

admission of evidence previously sought to be suppressed.’” 
13 

(quoting United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 

(8th Cir. 2001))); United States v. Cunningham, 405 F.3d 497, 502 

(7th Cir. 2005) (“Although Cunningham’s trial counsel initially 

objected to admission of the pictures, he later explicitly withdrew 

his objection and furthermore failed to make any additional 

objections in the proceedings below to their admission.”). We 

decline to take this path based on defense counsel’s voir dire 

questions about prospective jurors’ attitudes toward firearms. 

Asking such general questions would be prudent in any POWPO 

case, rather than only in those cases where prejudice somehow 

inheres in the particular firearms at issue. 

¶ 26 Actual recognition seems to be what Rediger II requires to find 

a waiver. And recognition is the third step that we posit separates 

Rediger II from Stackhouse. We will assume defense counsel’s 

general familiarity with the prejudice limitation in CRE 403 and 

counsel’s awareness that if admitted, the firearms would be there 

for the jurors to see. But the third step — actual recognition that 

the firearms might create prejudice subject to CRE 403 scrutiny — 

poses the inadvertence or intentional relinquishment dilemma. See 
14 

People v. Foster, 2013 COA 85, ¶ 38 (listing “several imponderables” 

inherent in attempting to make such an assessment). 

¶ 27 In the end, “[t]he line between waiver and forfeiture is often 

blurry.” United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). 

Because “[t]he distinction is not always easy to make,” and here 

defense counsel declined to explain the decision not to object, “our 

task is to use conjecture as to whether the defendant’s failure to 

object was accidental or deliberate, and to do so, we evaluate the 

record as a whole.” Id. at 541-42. Simply put, this record does not 

foreclose the possibility that defense counsel overlooked the 

possible prejudice from having the firearms present in the 

courtroom. 

¶ 28 For these reasons, we decline the Attorney General’s invitation 

to read Rediger II narrowly on a record no more favorable to the 

prosecution than the record in that case. After all, in Rediger II

defense counsel told the court more than once that he was reading 

the prosecutor’s tendered instructions. With respect for the views 

expressed in the special concurrence, we leave to the supreme court 

excluding from the heightened waiver scrutiny in Rediger II

evidentiary issues that lack constitutional significance as well as 
15 

reconciling any discrepancy between Rediger II and Stackhouse. 

See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 

477, 484 (1989) (“If a precedent of this Court has direct application 

in a case, yet appears to rest on reasons rejected in some other line 

of decisions, the Court of Appeals should follow the case which 

directly controls, leaving to this Court the prerogative of overruling 

its own decisions.”). 

¶ 29 So, we reject waiver and take up plain error analysis. 

B. Standard of Review and Law 

¶ 30 Ordinarily, we review the district court’s evidentiary rulings for 

an abuse of discretion. People v. Faussett, 2016 COA 94M, ¶ 33. 

However, if defense counsel failed to object to the admission of 

evidence, we reverse only if the admission of the evidence went 

beyond an abuse of discretion and rose to the level of plain error. 

Hagos v. People, 2012 CO 63, ¶ 14. An error is plain where it is 

obvious and substantial, and casts serious doubt on “the basic 

fairness of the trial itself” and “the reliability of the judgment of 

conviction.” Wilson v. People, 743 P.2d 415, 419-20 (Colo. 1987). 

¶ 31 “Because the balance required by CRE 403 favors admission, a 

reviewing court must afford the evidence the maximum probative 
16 

value attributable by a reasonable fact finder and the minimum 

unfair prejudice to be reasonably expected.” People v. Folsom, 2017 

COA 146M, ¶ 33 (quoting People v. Elmarr, 2015 CO 53, ¶ 44). 

“Consistent with this preference for admission, evidence is not 

unfairly prejudicial merely because it damages the defendant’s 

case.” People v. Valdez, 2017 COA 41, ¶ 37. And evidence is 

unfairly prejudicial only if it has an “undue tendency to suggest a 

decision on an improper basis, commonly but not necessarily an 

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

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

C. Analysis 

¶ 32 Defendant argues that because “[s]howing someone a gun, a 

[AR 15] style rifle for that matter, evokes a very different response 

than a picture, or even showing them a scope or other item,” 

admission of the firearms — in addition to the photographs — was 

plain error. The three firearms were an AR 15 rifle,3 a 9mm highpoint assault rifle, and a 12-gauge shotgun. 

 

3 “An ‘AR 15 is the civilian version of the military’s M4 carbine. 

Contrary to what most people believe AR doesn’t stand for assault 

rifle, rather it stands for the original manufacturer Armalite Rifle. 

AR 15 is semiautomatic and doesn’t meet Federal requirements to 
17 

¶ 33 As to prejudice, defendant cites no legal authority, nor have we 

found any in Colorado, holding that admission of firearms 

connected to a crime is unduly prejudicial. Cf. People v. Watson, 

650 P.2d 1340, 1343 (Colo. App. 1982) (“As for the revolvers, it has 

been consistently held that weapons found during a search are 

admissible as a part of the history of the arrest . . . .”). Defendant 

does not suggest how the nature of these three firearms was 

somehow particularly likely to evoke prejudice. Nor does he point 

to any testimony concerning their capabilities that might have done 

so. 

¶ 34 Still, a closer look shows that at least one court has expressed 

concern about juror attitudes about firearms: 

Personal reactions to the ownership of guns 

vary greatly. Many individuals view guns with 

great abhorrence and fear. Still others may 

consider certain weapons as acceptable but 

others as “dangerous.” A third type may react 

solely to the fact that someone who has 

committed a crime has such weapons. Any or 

all of these individuals might believe that 

 

be classified as an assault rifle.’” State v. Schroeder, No. 16-1786, 

2018 WL 2230542, at *2 n.2 (Iowa Ct. App. May 16, 

2018) (unpublished table decision) (quoting AR 15, Urban 

Dictionary, 

https://www.urbandictionary.com/define.php?term=AR%2015 (last 

visited Apr. 24, 2018)). 
18 

defendant was a dangerous individual . . . just 

because he owned guns. 

State v. Rupe, 683 P.2d 571, 597 (Wash. 1984). Concern has also 

arisen from the number of firearms involved: 

Two dozen guns in a courtroom is undoubtedly 

an alarming sight. The prosecutor’s repeated 

assurances that the weapons were not loaded 

and that all were examined multiple times to 

verify that they were secure demonstrated an 

awareness that jurors would be apprehensive 

in the presence of this much weaponry. 

United States v. Klebig, 600 F.3d 700, 715 (7th Cir. 2009). 

¶ 35 Unlike in Klebig, here only three firearms were admitted. Still, 

somewhat like in that case, the trial court wondered aloud what 

should be done with those three firearms, after they had been 

admitted: 

The Court now directs that the weapons be 

taken somewhere and locked up. The Court 

doesn’t anticipate bringing them back and 

giving them to the jury to deliberate because 

the Court sees no evidentiary purpose to that. 

Although some questions about attitudes toward firearms were 

asked during voir dire, the responses from the seated jurors afford 

little insight into all of their attitudes. So, recognizing at least some 
19 

possibility of prejudice, the balancing process must turn to 

probative value. 

¶ 36 Directly contrary to defendant’s argument, “[r]eal evidence is 

relevant and therefore admissible if it is connected in some manner 

with either the accused, the victim, or the crime.” People v. Garcia, 

784 P.2d 823, 826 (Colo. App. 1989). In other words, “[e]vidence 

that defendant may have possessed an instrument which could 

have been used in the commission of the crime is admissible, 

provided a proper foundation is laid.” Id.; see also United States v. 

Moreno, 933 F.2d 362, 375 (6th Cir. 1991) (“[T]he probative value of 

the presence of the actual firearms in the courtroom was not 

‘substantially outweighed by the danger of unfair prejudice’ . . . .” 

(quoting Fed. R. Evid. 403)); United States v. Wiener, 534 F.2d 15, 

18 (2d Cir. 1976) (“We hold that the gun was relevant to the issues 

upon which Wiener was tried and that the court did not abuse its 

discretion in holding that its probative weight was not overbalanced 

by the inflammatory tendency of the gun as evidence.”) (collecting 

cases). 

¶ 37 These authorities have particular weight in this case because 

the firearms were the instrumentality whereby defendant committed 
20 

POWPO. See State v. Solomon, 91 A.3d 523, 528 (Conn. App. Ct. 

2014) (“[T]he revolver was relevant to show that the defendant 

possessed the means to commit the crime of criminal possession of 

a firearm,” and its admission “cannot be considered unduly 

prejudicial . . . when offered for this limited purpose because mere 

possession of the means to commit a crime, without more, does not 

establish that the defendant had bad character or a propensity for 

violence.”). Likewise, in Moreno, 933 F.2d at 375, “[t]he probative 

value of the firearms is clear, since they are the basis for Count 13 

of the indictment.” In contrast, the numerous firearms admitted in 

Klebig were offered only to show that because the defendant owned 

so many lawful firearms, his mistake defense to having purchased 

an unlawful gun lacked credibility. 

¶ 38 True, the three firearms were accurately described in the 

photographs admitted into evidence. But defense counsel did not 

propose any stipulation concerning the firearms, in lieu of their 

admission. And even had counsel done so, “[t]he prosecution is 

generally entitled to prove the elements of its case against a 

defendant by evidence of its own choice.” People v. Morales, 2012 

COA 2, ¶ 9. 
21 

¶ 39 For these reasons, we discern no error, and therefore do not 

proceed further along the plain error path, in admitting the firearms 

as the instrumentality of the crime. 

III. Admission of the Detective’s Testimony About Statements of 

M.S. Does Not Warrant Reversal 

¶ 40 After M.S. testified as a prosecution witness, the prosecutor 

called the detective who had interviewed him about the burglary, 

Sergeant Vidmar. When the sergeant began to recount M.S.’s 

statements during that interview, defense counsel objected based 

on “[h]earsay, improper impeachment.” The trial court allowed the 

sergeant to continue. 

¶ 41 Later, defense counsel renewed the objection. After hearing 

argument outside the jury’s presence, the court ruled that the 

sergeant could testify as to whether M.S. had “changed his story” 

and “if the interview led this witness to do something else, like drive 

[the burglar] around to a location.” However, “just to have this 

witness say that [the burglar] told him the same thing [the burglar] 

told the jury yesterday, is just bolstering the testimony, which is 

generally not allowed.” 
22 

¶ 42 Defense counsel did not ask that the prior testimony be 

stricken or request a cautionary instruction; nor, when the jury 

returned, did the court give one sua sponte. Direct examination 

resumed. The sergeant was asked only whether M.S. had changed 

his story — the answer was “no” — and to explain how the interview 

had led the officers to the apartment where the firearms were 

seized, which he did, albeit briefly. 

A. Standard of Review and Law 

¶ 43 A trial court has substantial discretion in deciding questions 

concerning the admissibility of evidence. People v. Elie, 148 P.3d 

359, 362 (Colo. App. 2006). Where the issue is preserved, we 

reverse a trial court’s evidentiary ruling only if the trial court 

abused that discretion and the error is not harmless. Id. A trial 

court abuses its discretion when its ruling is manifestly arbitrary, 

unreasonable, or unfair, or when it is based on an erroneous 

understanding or application of the law. People v. Jackson, 2018 

COA 79, ¶ 37. 

¶ 44 On the one hand, “out-of-court statements cannot be used to 

bolster the trial testimony of witnesses.” People v. Johnson, 987 

P.2d 855, 860 (Colo. App. 1998). On the other, “a witness’s prior 
23 

consistent statements are admissible under two distinct theories.” 

People v. Clark, 2015 COA 44, ¶ 124. They may be admitted under 

CRE 801(d)(1)(B) as substantive evidence or, as pertinent here, they 

are sometimes admissible outside of the rule to rehabilitate a 

witness’s credibility. People v. Eppens, 979 P.2d 14, 19-21 (Colo. 

1999). 

¶ 45 When a witness’s credibility has been attacked, how much of a 

prior consistent statement is admissible turns on the scope of the 

attack. Elie, 148 P.3d at 362. If the witness’s testimony is attacked 

based on specific facts, only prior consistent statements regarding 

those facts are admissible. People v. Miranda, 2014 COA 102, ¶ 16. 

But where the attack is more general, the jury may hear all relevant 

facts, including consistent and inconsistent statements. Id. 

B. Analysis 

¶ 46 Defendant argues that “[n]ot only were [the sergeant’s] 

statements not admissible under the rules of evidence, but they 

tended to improperly bolster the credibility of M.S.’s prior 

testimony.” 

¶ 47 But at trial, defense counsel generally attacked M.S.’s 

credibility. For example, during opening statement counsel said, 
24 

“You will hear that [M.S.] has not always told the same version of 

events when he talks about what happened . . . .” Then, in 

cross-examining M.S., counsel elicited details about inconsistencies 

among M.S.’s statements. Thus, the sergeant’s later testimony 

about what M.S. had told him during the interview was “relevant 

and admissible to give the jury a complete picture of [M.S.’s] 

credibility.” Miranda, ¶ 20 (quoting People v. Banks, 2012 COA 

157, ¶ 39). 

¶ 48 Further, the trial court sustained defendant’s objection to the 

sergeant’s more general statements about what M.S. had said 

during the interview, limiting the testimony to “whether M.S. 

“change[d] his story in any significant detail.” We discern no risk of 

bolstering from this limited testimony. 

¶ 49 And to the extent defendant now argues the trial court should 

have given a curative instruction as to the initial statements, he did 

not request one. See People v. Mersman, 148 P.3d 199, 203 (Colo. 

App. 2006) (“[T]o receive a curative instruction, a defendant must 

request it, and a trial court does not commit plain error if it does 

not give a curative instruction sua sponte.”). 
25 

IV. The Prosecutor’s Statements in Closing Argument Do Not 

Constitute Plain Error Warranting Reversal 

A. Standard of Review and Law 

¶ 50 Defendant points to several statements by the prosecutor that 

he argues either mischaracterized the evidence or misstated the 

law. Defendant concedes that because trial counsel did not object 

to these statements, we review only for plain error. 

¶ 51 To warrant reversal under plain error, prosecutorial 

misconduct must be flagrant or glaringly or tremendously improper 

and so undermine “the fundamental fairness of the trial as to cast 

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

People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010) (citation 

omitted). Prosecutorial misconduct in closing argument rarely 

constitutes plain error. People v. Carter, 2015 COA 24M-2, ¶ 53. 

¶ 52 We evaluate claims of improper argument in the context of the 

argument as a whole and in light of the evidence before the jury. 

People v. Samson, 2012 COA 167, ¶ 29. Prosecutors may employ 

rhetorical devices and engage in oratorical embellishment and 

metaphorical nuance. People v. Conyac, 2014 COA 8M, ¶ 132. 

Prosecutors also have considerable latitude in replying to opposing 
26 

counsel’s arguments and in making arguments based on facts in 

evidence and reasonable inferences that can be drawn from those 

facts. Id. at ¶ 133. As well, “because arguments delivered in the 

heat of trial are not always perfectly scripted, reviewing courts 

accord prosecutors the benefit of doubt where remarks are 

‘ambiguous,’ or simply ‘inartful.’” People v. McBride, 228 P.3d 216, 

221 (Colo. App. 2009) (citations omitted). 

¶ 53 Even so, prosecutors may not use closing argument to 

misstate the evidence, assert a personal opinion, or insert claims 

calculated to inflame the passions and prejudices of the jury. 

Samson, ¶ 32. In other words, a prosecutor is “free to strike hard 

blows, [but] ‘is not at liberty to strike foul ones.’” Wilson, 743 P.2d 

at 418 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). 

B. Analysis 

1. Defendant’s Statements to Lieutenant Coates 

¶ 54 Lieutenant Coates testified on direct examination that 

defendant had told him during the interview that at the Fountain 

Mesa Road house, M.S. asked defendant “if he would hold onto 

some bags for him.” Defendant had explained that firearms “were 

located inside green duffel bags” and “some of them were wrapped 
27 

up in a blanket.” M.S. did not give defendant the firearms at the 

Fountain Mesa address; rather, M.S. met up with defendant later at 

the Arvada street address. 

¶ 55 During cross-examination, the lieutenant clarified that 

defendant “never stated M.S. showed up with guns. He said that 

[M.S.] showed up with green duffel bags.” And defendant had told 

the lieutenant that he did not look into the bags or ask what was in 

them. 

¶ 56 During closing argument, the prosecutor said: 

 “We have [defendant] himself stating that M.S. shows up . . . 

and says . . . [h]ere is the duffel bag and a blanket and a 

bunch of heavy stuff there. Will you hold it for me.” 

 “[Defendant] testifies that later that evening at the Arvada 

address M.S. shows up with those guns wrapped in a blanket. 

And the bags, he takes them and he puts them into . . . [a] 

room.” 

¶ 57 Although defendant points to slight discrepancies between the 

lieutenant’s testimony and the prosecutor’s closing argument, none 

of them rises to the level of plain error. See People v. Arzabala, 

2012 COA 99, ¶¶ 68-72 (no plain error if the misstatements did not 
28 

contribute to the defendant’s conviction and the jury heard 

accurate testimony). Further, based on what defendant said had 

occurred at both the Fountain Mesa and Arvada locations, the 

prosecutor’s statements were reasonable evidentiary inferences. 

2. Sergeant Racine’s Testimony 

¶ 58 Sergeant Racine testified that during the search of the Arvada 

apartment, “the two assault weapons were located in an unclosed 

closet in the left-hand bedroom. And the shotgun was located in a 

closet in the living room.” 

¶ 59 During closing argument, the prosecutor said: 

When they conduct the search they find 

assault rifles and the shotgun in the attic. Not 

locked up in a safe. Not even wrapped up in 

blankets or some duffle bags but exposed in 

the open. One of the bedrooms that 

[defendant] himself says he put them. But 

now they are open. And a shotgun in the 

living room. 

¶ 60 While the reference to the attic was incorrect, the rest of the 

statements were based on reasonable evidentiary inferences. 

Specifically, the sergeant testified that, as to the firearms, “you 

could kind of make out there was barrels because there was an 

attempt to like cover them up . . . [but] portions of the gun [were] 
29 

exposed.” And reference to an attic — instead of an open closet — 

is not a material difference. 

3. M.S. Testimony 

¶ 61 Defendant points to the following statements by the prosecutor 

as mischaracterizing M.S.’s testimony: 

 M.S. saw “at least five weapons” in the car, whereas he 

testified that “at most there were five guns” (emphasis added); 

 M.S. gave police “two addresses” as possible locations for the 

stolen firearms, whereas he “only provided the address at 

Arvada apartment”; 

 M.S. saw the firearms in the car “the next day,” whereas he 

testified he saw them “on September 24.” 

¶ 62 But “divisions of this court have often overlooked minor 

discrepancies between the evidence and closing argument.” 

Bondsteel, ¶ 138; see also People v. Williams, 996 P.2d 237, 245 

(Colo. App. 1999) (prosecutor’s statement that forty dollars was 

found in the defendant’s pocket, while there was no testimony 

establishing the exact amount, was not “so prejudicial when 

considered in the context of the entire closing argument as to 

constitute plain error”). 
30 

4. Knowing Possession of a Firearm 

¶ 63 The trial court instructed the jury: 

“POSSESSION” as used in these instructions, 

does not necessarily mean ownership, but does 

mean the actual, physical possession, or the 

immediate and knowing dominion or control 

over the object or the thing allegedly 

possessed. “Possession” need not be exclusive, 

provided that each possessor, should there be 

more than one, actually knew of the presence 

of the object, or thing possessed and exercised 

actual physical control or immediate, knowing 

dominion or control over it. 

Defendant argues that, contrary to this instruction, the prosecutor 

“made numerous erroneous statements regarding the knowing 

possession of a firearm” that allowed the jury to convict him “if, at 

any time, the jury could determine that [he] was in the Arvada 

apartment at the same time of [sic] the guns.” 

¶ 64 For example, the prosecutor told the jury: 

 “I don’t have to prove that he owned the gun. I don’t have to 

prove that he possessed it exclusive of everyone else. 

Everybody in the room with that shotgun, under this definition 

for this crime is possessing that firearm.” 
31 

 “Possession also need not be exclusive. Provided that each 

possessor, should there be more, actually knew of the 

presence of the object.” 

 “If he knew it was there, he is guilty.” 

 “If he walked into a room, he sees a shotgun in the closet, he 

has a duty, as a convicted felon, to leave the room.” 

¶ 65 True, “‘possession,’ as it is used in [POWPO], is the actual or 

physical control of the firearm.” Beckett v. People, 800 P.2d 74, 82 

(Colo. 1990) (quoting People v. Garcia, 197 Colo. 550, 554, 595 P.2d 

228, 231 (1979)). Thus, some of the prosecutor’s statements — i.e., 

“If he knew it was there, he is guilty” — when read in isolation, do 

not accurately state the law. 

¶ 66 Still, a defendant need not have had exclusive control of the 

firearm to be found guilty of possessing it. See People v. 

Tramaglino, 791 P.2d 1171, 1172-73 (Colo. App. 1989) (evidence 

was sufficient to support POWPO conviction where eyewitness 

testified that she saw the gun in the defendant’s possession and 

police officers later discovered the gun in his automobile); People v. 

Rivera, 765 P.2d 624, 626-28 (Colo. App. 1988) (evidence was 

sufficient to support the defendant’s POWPO conviction where he 
32 

accompanied his wife and assisted her with the purchase of a 

revolver, which was within “arm’s reach” of defendant), rev’d on 

other grounds, 792 P.2d 786 (Colo. 1990). 

¶ 67 In this regard, the prosecutor also told the jury: 

 “Possession, as used in these instructions, does not 

necessarily mean ownership, but does mean actual physical 

possession or the immediate and knowing dominion or control 

over an object or thing allegedly possessed.” 

 “[I]f [defendant] knew that those were firearms, and he was 

where he could exercise control or dominion over them, he was 

in possession.” 

 “It can’t be a hot potato.” 

And the prosecutor mentioned the trial court’s instruction on 

possession. 

¶ 68 Given the prosecutor’s correct statements on possession and 

the reference to the trial court’s instruction, we conclude that any 

misstatements do not constitute plain error. See Strock, 252 P.3d 

at 1154 (no plain error where misstatements were offset by the 

prosecutor’s correct statements of law, the trial court’s correct 

instructions, and counsel’s reference to the court’s instructions 
33 

during closing); see also People v. Kyle, 111 P.3d 491, 502 (Colo. 

App. 2004) (“Even assuming the comment was improper, in light of 

the trial court’s instructions and the other proper argument by the 

prosecutor, we cannot say with fair assurance that any error so 

undermined the fundamental fairness of the trial as to cast serious 

doubt on the reliability of the judgment of conviction.”). 

¶ 69 In any event, misstatements by the prosecutor were few in 

number in an otherwise lengthy summation. See People v. Villa, 

240 P.3d 343, 357 (Colo. App. 2009) (“We note that the number of 

times the jury is confronted with a misstatement of law is relevant 

in evaluating the nature and extent of the harm. . . . Furthermore, 

the trial court’s instructions to the jury were clear . . . .”). And 

when read in conjunction with the prosecutor’s other statements, 

any error would not have been flagrant or glaring. See People v. 

Weinreich, 98 P.3d 920, 924 (Colo. App. 2004) (“This argument, 

taken in context, is not a misstatement of the law.”), aff’d, 119 P.3d 

1073 (Colo. 2005). 

V. Cumulative Error 

¶ 70 Lastly, defendant contends the aggregate impact of numerous 

errors denied his right to a fair trial. But the doctrine of cumulative 
34 

error requires that numerous errors be committed, not merely 

alleged. People v. Jones, 665 P.2d 127 (Colo. App. 1982), aff’d sub 

nom. People v. Curtis, 681 P.2d 504 (Colo. 1984). 

¶ 71 We have found only unpreserved errors that were not plain. 

Whether plain errors can even be considered for cumulative error 

purposes has not been resolved in Colorado. Compare United States 

v. Nunez, 532 F.3d 645, 655 (7th Cir. 2008) (“When an appellant 

alleges cumulative error, this Court will only consider plain errors 

and errors which were preserved for appellate review.”), with United 

States v. Delgado, 672 F.3d 320, 340 (5th Cir. 2012) (“[P]lain-error 

analysis under [Fed. R. Crim. P.] 52(b) prohibits us from basing a 

reversal on unpreserved errors that are not ‘plain’ under the second 

prong of plain-error review.”). 

¶ 72 Be that as it may, we cannot discern how any combination of 

the possible but unpreserved errors in the prosecutor’s closing 

argument — which were not plain — could have deprived defendant 

of a fair trial. See Carter, ¶ 81. 

VI. Conclusion 

¶ 73 The judgment is affirmed. 

JUDGE FOX concurs. 
35 

JUDGE NIETO specially concurs. 
36 

JUDGE NIETO, specially concurring. 

¶ 74 Although I concur with the majority’s ultimate result, I would 

conclude that defendant’s trial counsel waived any error regarding 

the admission of the firearms into evidence, and would therefore 

decline to review his contention. 

¶ 75 Our supreme court has helpfully distinguished between waiver 

and forfeiture in People v. Rediger, 2018 CO 32. Waiver requires 

“intentional relinquishment of a known right,” id. at ¶ 39 (quoting 

Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)), and 

therefore does not involve errors resulting merely from oversight. 

Moreover, such “intentional relinquishments” are not limited to 

explicit acts, but may even include mere implications, if they clearly 

manifest an intent to relinquish the issue. Id. at ¶ 42; see also 

Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002) (collecting cases); 

Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1385 

(Colo. 1998) (where defense failed to offer replacement jury 

instruction after trial court rejected its first tendered instruction, it 

waived issue). If a contention has been waived, appellate courts will 

not review it even for plain error. Rediger, ¶ 34. 
37 

¶ 76 By contrast, courts may still review an issue for plain error 

when a litigant inadvertently relinquished it below through 

apparent “oversight,” because in that case the issue was merely 

“forfeited.” Id. at ¶¶ 37, 40. Thus appellate courts will not find 

waiver where, for example, the record “bears no indication” that a 

defendant was aware at trial of a potential problem with the jury 

instructions. Id. at ¶¶ 37-38. 

¶ 77 We are thus faced with the question of whether defendant 

intentionally relinquished his right to appeal the issue of whether 

the guns should have been shown to the jury, or instead merely 

overlooked this possibility. In the context of the aforementioned 

precedent, I would conclude that defendant waived the issue. 

¶ 78 The record makes plain that defendant’s trial counsel was 

pointedly confronted with the possibility that the guns would be 

shown to the jury and expressly declined to register an objection.

 

This knowing and express acquiescence is not analogous to the 

situation in Rediger, where the supreme court saw “no evidence, 

 



 Although Horton v. Suthers, 43 P.3d 611, 619 n.9 (Colo. 2002), 

noted that it should not be read as applying invited error to a mere 

“failure to object,” here defendant’s express statement of “no 

objection” to admitting the guns goes further than a mere “failure” 

and constitutes an “affirmative[] acquiesce[nce].” Id.
38 

either express or implied” that the litigant’s counsel was even aware 

of the potential problem. Id. at ¶ 42. Here, the firearms were 

physically present before counsel and the appearance of the 

weapons was obvious. In voir dire, counsel questioned several 

prospective jurors concerning their attitudes about firearms, 

showing that he was aware of the potential for prejudice. Therefore, 

I would conclude that counsel was aware of the issue and waived 

any CRE 403 objection he might have raised. 

¶ 79 Because waiver is a harsh remedy, our supreme court has 

further clarified that it is less likely to perceive waiver when the 

abandoned issue involves constitutional rights. People v. Curtis, 

681 P.2d 504, 514 (Colo. 1984) (courts do not presume waiver of 

fundamental constitutional rights). Here, unlike in Curtis and 

Rediger, there are no constitutional rights in issue. Rather, the 

issue involves the admission of admittedly relevant evidence that 

defendant might have argued was unfairly prejudicial under CRE 

403. Therefore, the effect of a waiver here was of more modest 

consequence. 

¶ 80 Hansen, 957 P.2d at 1385, is more analogous to the situation 

here. There, after the trial court rejected the defendant’s tendered 
39 

jury instruction, it offered the defendant a chance to redraft it. The 

defendant declined to redraft the instruction, and our supreme 

court held that this declination constituted invited error. Similarly, 

here, defendant’s trial counsel was fully aware that the guns would 

be shown to the jury, and nevertheless expressly declined to object. 

¶ 81 Accordingly, I would hold that defendant waived his CRE 403 

objection to admission of the firearms, and would decline to review 

his contention.