     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.


                                                                  SUMMARY
                                                              March 19, 2020

                                2020COA42

No. 17CA1536, People v. Vialpando — Constitutional Law —
Sixth Amendment — Right to Trial by Jury; Criminal Law —
Prosecutorial Misconduct

     A division of the court of appeals considers whether a

prosecutor’s statements during closing argument that the

defendant’s “flight continues up to this moment” and that her “flight

has continued up and to this point” were prosecutorial misconduct.

     The majority concludes that those comments constituted

prosecutorial misconduct, and further, that this misconduct

requires reversal under the plain error standard.

     The majority also concludes that the prosecutor’s comments

on the defendant’s flight in combination with four other instances of

prosecutorial misconduct and one evidentiary error deprived the
defendant of her right to a fair trial under the cumulative error

doctrine. Thus, the defendant’s convictions are reversed.

     The dissent concurs with the majority’s analysis regarding

sufficiency of the evidence, suppression of an out-of-court

identification, and the trial court’s reasonable doubt illustration,

but concludes that the prosecutor’s misconduct did not constitute

plain error and would therefore affirm the judgment of conviction.
COLORADO COURT OF APPEALS                                             2020COA42


Court of Appeals No. 17CA1536
Adams County District Court No. 16CR150
Honorable Sharon Holbrook, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Yolanda Ursula Vialpando,

Defendant-Appellant.


                          JUDGMENT REVERSED AND CASE
                           REMANDED WITH DIRECTIONS

                                       Division VII
                              Opinion by JUDGE BERGER
                                  Lipinsky, J., concurs
                      Fox, J., concurs in part and dissents in part

                              Announced March 19, 2020


Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Yolanda Ursula Vialpando exercised her right to a trial by jury.

 That jury convicted her of aggravated motor vehicle theft and other

 crimes. During closing arguments, the prosecutor told the jury that

 Vialpando’s “flight continues to this moment,” and that her “flight

 has continued up and to this point.” These comments punished

 Vialpando for exercising her constitutional right to a jury trial. This

 was plain error, requiring reversal of her convictions.

¶2    Moreover, this error and five other errors that occurred over

 the course of Vialpando’s short three-day trial deprived her of her

 right to a fair trial under the cumulative error doctrine.

              I.   Relevant Facts and Procedural History

¶3    J.A.’s car was stolen from her Denver home.

¶4    Eleven days later, around five p.m., two police officers were

 sitting in their police vehicle in the parking lot of a motel. One of

 the officers testified that he saw a car, which would later be

 identified as J.A.’s, drive around the corner of the motel, reverse

 over a curb, and turn around to exit the motel parking lot. As the

 officers followed the car, they learned it was stolen. The officer who

 was driving testified that he activated his emergency lights to make

 a traffic stop, but that the car “increased its speed.” The officer said


                                    1
 that he did not pursue the car because of the police’s pursuit

 policy. Shortly after deactivating his lights, the officer “heard a loud

 bang” and later saw that the stolen car had crashed. Several

 witnesses told the officers that they saw a male and female flee the

 car after the crash.

¶5    One of the witnesses was R.H. She was in her car, stopped at

 a traffic light, when she saw the stolen car crash into another,

 injuring the other driver. After the crash, R.H. watched a man leave

 the passenger side and a woman exit the driver’s side of the stolen

 car. They ran away in different directions. R.H.’s car was two lanes

 away from the crash.

¶6    After the crash, the police found a purse in J.A.’s stolen car

 that contained Vialpando’s identification card, credit card, medical

 insurance card, and “miscellaneous female clothing,” which

 Vialpando identified at trial as her clothes.

¶7    Based on the items found in the crashed car, the police began

 investigating Vialpando. Two officers went to R.H.’s home for an

 out-of-court identification. One of the officers testified that he

 showed R.H. a series of photographs, and R.H. identified

 Vialpando’s photo thirty seconds later.


                                    2
¶8     Vialpando was charged with vehicular assault, § 18-3-

  205(1)(a), C.R.S. 2019; vehicular eluding, § 18-9-116.5, C.R.S.

  2019; aggravated motor vehicle theft in the first degree, § 18-4-

  409(2), C.R.S. 2019; and driving under restraint, § 42-2-138(1)(a),

  C.R.S. 2019.

¶9     At trial, R.H. testified that the fleeing woman was “lighter

  skinned” and had a lot of makeup on. R.H. testified further that, at

  the time of the crash, the woman was wearing a black and white

  striped shirt and skinny black jeans; was in her twenties or thirties;

  was slender; had black, wavy, long hair; and was maybe about 5

  feet 5 inches or 5 feet 6 inches tall. According to R.H., the woman’s

  makeup “made her look younger.”

¶ 10   An officer testified that some of Vialpando’s Facebook photos

  showed her with long black hair and wearing “a significant amount

  of makeup,” and that she appeared younger than she did at trial.

  He also told the jury that Vialpando’s Division of Motor Vehicles

  record stated that she was 5 feet 5 inches tall, 155 pounds, with

  brown hair and brown eyes, and her Colorado identification

  photograph depicted her with “long dark hair.”




                                    3
¶ 11   R.H. explained that, during the out-of-court identification, she

  told the officers that several of the women “were definitely not the

  person, and one . . . could be.” She told the jury that she selected

  Vialpando’s photo from the lineup and told police that “it could

  totally be possible” that she was the woman R.H. saw exit the

  crashed car. R.H. was “seventy-five percent” certain. When asked

  for an in-court identification, R.H. said that Vialpando “could be”

  the woman who had fled the stolen, crashed vehicle.

¶ 12   Vialpando explained to the jury that she was robbed of the

  personal items that were found in the stolen car — including her

  identification card, purse, insurance card, credit card, and clothing.

  In fact, Vialpando reported the robbery the day before the car chase

  and crash occurred. Testimony from a police officer supported

  Vialpando’s account; the officer testified that Vialpando came to the

  Denver police station the day before the car chase to report that she

  was robbed at gunpoint, and that several personal items had been

  stolen.

¶ 13   Vialpando was found guilty as charged and sentenced to four

  years in community corrections.




                                    4
                                II.   Analysis

¶ 14   On appeal, Vialpando asserts six claims of error:

            there was insufficient evidence to support her

             convictions;

            the prosecutor engaged in seventeen instances of

             prosecutorial misconduct;

            the lead investigating police officer impermissibly testified

             that she was the “primary suspect”;

            the cumulative effect of the errors deprived her of a fair

             trial;

            R.H.’s identification was unreliable, so it should have

             been suppressed; and

            the trial court lowered the State’s burden of proof when it

             used analogies to describe reasonable doubt.

                      A.    Sufficiency of the Evidence

¶ 15   We first address Vialpando’s sufficiency of the evidence

  arguments because a reversal due to insufficient evidence “may

  preclude retrial” on double jeopardy grounds. People v. Coahran,

  2019 COA 6, ¶ 40 (quoting People v. Marciano, 2014 COA 92M-2,

  ¶ 42).


                                      5
¶ 16   Vialpando claims that there is insufficient evidence to support

  her convictions because the prosecution failed to prove identity.

  She also claims that there is insufficient evidence to support her

  aggravated motor vehicle theft conviction because the prosecution

  failed to prove that she knowingly obtained or exercised control over

  the motor vehicle of another without authorization, or that she

  obtained or exercised control over the vehicle by threat or

  deception. Both of Vialpando’s sufficiency of the evidence

  arguments are disproved by the record.

                              1.   The Law

¶ 17   The Attorney General disputes that Vialpando fully preserved

  her sufficiency of the evidence claims for appeal. But we review the

  sufficiency of the evidence de novo, including sufficiency claims

  raised for the first time on appeal, Maestas v. People, 2019 CO 45,

  ¶ 13, to determine whether the evidence at trial was sufficient “in

  quantity and quality to sustain the defendant’s conviction.” Clark v.

  People, 232 P.3d 1287, 1291 (Colo. 2010).

¶ 18   The Due Process Clauses of the United States and Colorado

  Constitutions require proof of guilt beyond a reasonable doubt on

  every element of a crime. People v. Marko, 2015 COA 139, ¶ 233,


                                    6
  aff’d, 2018 CO 97. To resolve Vialpando’s sufficiency challenge, we

  must determine whether the direct and circumstantial evidence,

  when viewed as a whole and in the light most favorable to the

  prosecution, is sufficient to support a conclusion by a reasonable

  fact finder that Vialpando is guilty of the crimes charged beyond a

  reasonable doubt. Clark, 232 P.3d at 1291.

¶ 19   “We do not sit as a thirteenth juror to determine the weight of

  the evidence presented to the jury.” Id. at 1293. Instead, we must

  give the prosecution the benefit of every reasonable inference that

  might fairly be drawn from the evidence, and we recognize that (1)

  the jury alone resolves the difficult questions of witness credibility

  and the weight to be given to conflicting items of evidence; (2) the

  jury is not required to accept or reject a witness’s testimony in its

  entirety; (3) an actor’s state of mind is not normally subject to direct

  proof and must be inferred from her actions and surrounding

  circumstances; and (4) if there is evidence on which to reasonably

  infer an element of the crime, the evidence is sufficient to sustain

  that element. People v. Kessler, 2018 COA 60, ¶ 12.

¶ 20   As relevant here, a person commits aggravated motor vehicle

  theft in the first degree if she “knowingly obtains or exercises


                                     7
  control over the motor vehicle of another without authorization or

  by threat or deception” and one of eight specified aggravating

  factors is shown. § 18-4-409(2). Vialpando was charged with

  committing three of the aggravating factors: (1) using a motor

  vehicle in the “commission of a crime other than a traffic offense”;

  (2) causing “five hundred dollars or more [in] property damage”; and

  (3) causing “bodily injury to another person” while exercising

  control of the motor vehicle.” § 18-4-409(2)(d)–(f). “The critical

  inquiry is whether the defendant exercised dominion over a vehicle

  in a manner inconsistent with [her] authority.” People v. Harper,

  205 P.3d 452, 455 (Colo. App. 2008).

¶ 21   To commit aggravated motor vehicle theft, a person must

  knowingly steal a motor vehicle and use it in the commission of a

  crime, “regardless of the mens rea associated with the particular

  crime committed.” People v. Marquez, 107 P.3d 993, 997–98 (Colo.

  App. 2004). The culpable mental state “knowingly” applies to the

  defendant’s exercise of control over the vehicle and her awareness

  of lack of authority. People v. Stellabotte, 2016 COA 106, ¶ 20,

  aff’d, 2018 CO 66. A person acts “knowingly”




                                     8
             with respect to conduct or to a circumstance
             described by a statute defining an offense
             when [s]he is aware that h[er] conduct is of
             such nature or that such circumstance exists.
             A person acts “knowingly” . . . with respect to a
             result of h[er] conduct, when [s]he is aware
             that h[er] conduct is practically certain to
             cause the result.

  § 18-1-501(6), C.R.S. 2019.

                             2.   Application

¶ 22   Giving the prosecution the benefit of every reasonable

  inference that might fairly be drawn from the evidence, we conclude

  that there is sufficient evidence in the record to allow a reasonable

  fact finder to convict Vialpando of the crimes charged.

¶ 23   Vialpando argues that there was insufficient evidence to prove

  the charged offenses because the prosecution did not prove identity

  — that she was the one who committed the charged crimes.

  Specifically, she relies on the fact that J.A. never saw who stole her

  car, only R.H. identified her as the woman fleeing from the crashed

  vehicle, and R.H.’s initial description of the perpetrator did not

  match Vialpando’s appearance in every respect because Vialpando




                                     9
  was not in her twenties or thirties, nor did she have long, dark

  hair.1

¶ 24   But a jury could reasonably infer that Vialpando was the

  person who committed the crimes because (1) J.A. testified that her

  vehicle was taken without her consent; (2) R.H. told the jury that

  she saw a woman flee — whom she later identified as Vialpando —

  from the driver’s side of J.A.’s stolen vehicle; (3) police officers

  testified that the driver of J.A.’s stolen vehicle fled the motel parking

  lot and sped up, rather than pulling over, after the police activated

  their lights; and (4) Vialpando’s identification card and other

  belongings were found in J.A.’s stolen vehicle. See People v. Clay,

  644 P.2d 81, 82 (Colo. App. 1982) (“A jury can draw reasonable

  inferences that arise from the facts of the case.”).

¶ 25   In sum, the evidence was sufficient for the jury to conclude

  that Vialpando was driving J.A.’s stolen car, and that Vialpando did

  not have authority to do so. Harper, 205 P.3d at 455–56.

¶ 26   While Vialpando testified that her belongings had been stolen

  and that she was at the hospital with her mother on December 30,


  1At trial, Vialpando had short hair. She testified that she lost her
  hair in 2010 because she suffered from lupus.

                                      10
  2015, the jury could, and evidently did, reject her testimony. See

  Kessler, ¶ 12.

¶ 27   Nor can we conclude that the prosecution presented

  insufficient evidence that Vialpando knowingly lacked authority to

  exercise control over J.A.’s car. Vialpando relies on the fact that

  J.A. did not see who stole her car. However, evidence was

  presented that the driver of J.A.’s stolen vehicle (1) did not stop

  when the police flashed their lights; (2) fled the stolen vehicle after

  crashing it; and (3) was later identified by R.H. as Vialpando.

¶ 28   That J.A. did not see who stole her car does not preclude the

  jury from finding that Vialpando was guilty. In Harper, 205 P.3d at

  455–56, there was sufficient evidence to support the defendant’s

  conviction for first degree aggravated motor vehicle theft despite the

  “little evidence to support a finding that [the defendant] stole the

  car from its owner” because “the evidence supports a reasonable

  inference . . . that [the defendant] exercised dominion over the car

  in a manner inconsistent with his authority.” The evidence is

  sufficient to support that same inference here.

¶ 29   Also, evidence of flight to avoid arrest is admissible to show a

  culpable mental state when the defendant knew that the police were


                                     11
  seeking her. See People v. Summitt, 132 P.3d 320, 324 (Colo. 2006).

  So, even if Vialpando did not steal the car from J.A.’s home, a

  reasonable juror could infer that Vialpando was aware that she

  lacked authority to exercise control over the car when she drove

  away from the motel and crashed the car. See Kessler, ¶ 12 (“[A]n

  actor’s state of mind is normally not subject to direct proof and

  must be inferred from his or her actions and the circumstances

  surrounding the occurrence . . . .”).

¶ 30   Lastly, we reject Vialpando’s assertion that there was

  insufficient evidence to support her aggravated motor vehicle theft

  conviction because the prosecution presented no evidence that she

  used threats or deception to obtain or exercise control over the car.

  The prosecution was required to prove that Vialpando exercised

  control over the motor vehicle of another without authorization or

  by threat or deception. § 18-4-409(2). Because sufficient evidence

  was presented proving that Vialpando knowingly exercised control

  over J.A.’s stolen vehicle without authorization, the prosecution was

  not also required to prove threat or deception.




                                    12
                B.      The Prosecutor’s “Flight” Comments

¶ 31   During closing argument, the prosecutor told the jury that

  Vialpando “ran” away from the crashed car and that she “ran” away

  from the police officers in the motel parking lot. The prosecutor

  then said that “although she is seated now, that flight continues to

  this moment. But it ends today.” Then, during rebuttal closing, the

  prosecutor told the jury that Vialpando’s “flight has continued up

  and to this point.”

¶ 32   Vialpando argues that the flight comments constituted

  prosecutorial misconduct because they were a direct and critical

  comment on her right to a jury trial.

¶ 33   In reviewing a prosecutorial misconduct claim, we first

  determine whether the conduct at issue was improper based on the

  totality of the circumstances, and if there was misconduct, we

  determine whether reversal is required under the applicable

  standard. People v. McMinn, 2013 COA 94, ¶ 59.

¶ 34   Because this claim was unpreserved, we review only for plain

  error. Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010). “To

  constitute plain error, prosecutorial misconduct must be flagrant or

  glaringly or tremendously improper, and it must so undermine the


                                     13
  fundamental fairness of the trial as to cast serious doubt on the

  reliability of the judgment of conviction.” McMinn, ¶ 58.

¶ 35   Vialpando had a constitutional right to a jury trial. U.S.

  Const. amend. VI. Defendants cannot be punished for exercising a

  constitutional right. People v. Pollard, 2013 COA 31M, ¶ 25. A

  defendant’s exercise of the right to a trial by jury may not be used

  by the prosecution to infer guilt. Dunlap v. People, 173 P.3d 1054,

  1080 (Colo. 2007); People v. Rodgers, 756 P.2d 980, 983 (Colo.

  1988), overruled on other grounds by People v. Miller, 113 P.3d 743

  (Colo. 2005). So, it is obviously improper for a prosecutor to tell the

  jury that the defendant should be condemned because she had the

  temerity to require the State to prove her guilt beyond a reasonable

  doubt. Rodgers, 756 P.2d at 983.

¶ 36   But that is precisely what happened here. During closing

  argument, the prosecutor said that Vialpando’s “flight continues to

  this moment,” and that her “flight has continued up and to this

  point.” The prosecutor told the jury that Vialpando was continuing

  to run from responsibility by insisting on a jury trial. Neither the

  Attorney General nor the dissent provides any other reasonable

  meaning for these comments.


                                    14
¶ 37   It was permissible for the prosecutor to argue that fleeing the

  crime scene was evidence of guilt. Summitt, 132 P.3d at 324. But,

  when Vialpando was sitting in the courtroom, she was not fleeing

  from anything; she was facing the jury and engaging in the process

  that the United States and Colorado Constitutions demand.

¶ 38   In United States v. Hardy, 37 F.3d 753 (1st Cir. 1994), the

  United States Court of Appeals for the First Circuit demonstrated

  the seriousness with which courts must view comments that

  prejudice defendants’ exercise of their constitutional right to a jury

  trial. There, the First Circuit held that the trial court abused its

  discretion by not granting a mistrial when the prosecutor argued

  that the defendants were “still running and hiding today.” Id. at

  757, 759. The First Circuit held that a mistrial was necessary,

  despite the fact that the trial court had sustained the defendant’s

  objection to the comment and had given the jury an instruction to

  disregard the comment. Id. at 757.

¶ 39   The misconduct perceived by the First Circuit in Hardy

  involved the right to remain silent under the Fifth Amendment, but

  the remark was equally prejudicial to the defendant’s right to a fair

  jury trial under the Sixth Amendment. Also similar is the recent


                                     15
  Colorado Supreme Court case Howard-Walker v. People, which

  concluded that the prosecutor’s remark that was “‘intended’ to

  emphasize [the defendant’s] decision to remain silent” was “the

  most serious error [that] occurred.” 2019 CO 69, ¶ 44 (citation

  omitted).

¶ 40   Thus, while Vialpando testified on her own behalf, that

  testimony did nothing to dispel the prejudicial effect of commenting

  on her right to a trial by jury. A prosecutor may not use the

  invocation of either right to infer the defendant’s guilt. Dunlap, 173

  P.3d at 1080. The supreme court has held that “there is ‘no

  significant difference between the impropriety of a prosecutor’s

  comments on a defendant’s exercise of his right to remain silent

  and a prosecutor’s comments on a defendant’s exercise of his

  equally fundamental right to a jury trial.’” Rodgers, 756 P.2d at 983

  (emphasis added) (quoting People v. Rodgers, 734 P.2d 145, 146

  (Colo. App. 1986)). If anything, the right to a jury trial is among the

  most basic rights guaranteed to criminal defendants by both the

  Colorado and the United States Constitutions.

¶ 41   We conclude that the prosecutor here, like the prosecutors in

  Hardy and Howard-Walker, criticized the defendant for exercising


                                    16
  her constitutional right and unfairly prejudiced her in the eyes of

  the jury. This misconduct was flagrant, glaring, and tremendously

  improper.

¶ 42   The next question is whether this error requires reversal

  because it undermined the fundamental fairness of the trial, casting

  serious doubt on the reliability of the conviction. McMinn, ¶ 59.

¶ 43   One of the critical determinants of whether unpreserved errors

  require reversal is an evaluation of the quantity of the evidence of

  guilt. See Howard-Walker, ¶¶ 46–47. Logically, if the evidence is

  overwhelming, it is unlikely that even multiple instances of

  prosecutorial misconduct affected the jury’s determination of guilt.

  But if the case is close, that same prosecutorial misconduct may

  well have influenced the verdict, thereby depriving the defendant of

  a fair trial. See id. at ¶¶ 46–48. “An improper comment that may

  seem insignificant where the evidence is overwhelming can assume

  a very different aspect in a close case.” Hardy, 37 F.3d at 759.

¶ 44   The evaluation of the evidence of guilt in this case is not

  simple, even though it may appear to be at first glance. Without

  more, the discovery of multiple items belonging to Vialpando in the

  stolen car after it crashed appears to be strong evidence of guilt.


                                    17
  But Vialpando claimed, with record support from the testimony of a

  police officer, that she reported the robbery of those items prior to

  the chase and crash. The prosecution’s theory was that the alleged

  robbery and the police reports were fabricated by Vialpando in an

  attempt to explain away the discovery of her personal items in the

  car.

¶ 45     But the uncontroverted evidence is that Vialpando made the

  police report of the alleged robbery before the chase and crash. To

  credit the prosecution’s theory, the jury would have to cast

  Vialpando as a master criminal playing three-dimensional chess

  with the police, establishing her defense theory before she knew

  having one would be necessary. Of course, these factual

  determinations were, and are, for the jury.

¶ 46     But if Vialpando was robbed as she alleged, then the strength

  of the prosecution’s evidence is reduced. Apart from the evidence

  found in the crashed car, the sole evidence linking her to the

  robbery is R.H.’s testimony that she was “75% sure” that it was

  Vialpando.

¶ 47     Because the evidence of Vialpando’s guilt was not

  overwhelming, we conclude that the prosecutor’s flight comments


                                    18
  undermined the fundamental fairness of her trial so as to cast

  serious doubt on the reliability of her convictions. Thus, she must

  be given a new trial.

                          C.   Cumulative Error

¶ 48   Vialpando also argues that the aggregate impact of numerous

  errors deprived her of a fair trial. Although we reverse her

  convictions based on plain error, we also address her cumulative

  error argument because the determination of plain error is a

  difficult question on which judges may disagree.

¶ 49   We agree that cumulative error is an independent basis for

  reversing Vialpando’s convictions. The prosecutor’s flight

  comments, coupled with four other instances of prosecutorial

  misconduct and an evidentiary error, deprived her of a fair trial.

¶ 50   When reviewing for cumulative error, a court asks whether the

  identified errors, in combination, deprived the defendant of her

  constitutional right to a fair trial. Howard-Walker, ¶¶ 24–25. This

  “standard governs, regardless of whether any error was preserved or

  unpreserved.” Id. at ¶ 26.

¶ 51   “[T]he question is not whether the errors were ‘brief’ or

  ‘fleeting’ but whether, viewed in the aggregate, the errors deprived


                                    19
  the defendant of a fair trial.” Id. at ¶ 40. “[R]eversal is warranted

  when numerous errors in the aggregate show the absence of a fair

  trial, even if individually the errors were harmless or did not affect

  the defendant’s substantial rights.” Id. at ¶ 26.

¶ 52   In addition to the flight comments, we conclude that the

  prosecutor engaged in four kinds of prosecutorial misconduct, most

  of which were repeated multiple times.

            1.   Improper Illustrations of Reasonable Doubt

¶ 53   First, during voir dire, the prosecutor attempted to illustrate

  the concept of beyond a reasonable doubt, but in doing so, he

  improperly trivialized the State’s burden of proof.

¶ 54   The prosecutor asked potential jurors if they could recognize,

  “beyond a reasonable doubt,” the American flag in the courtroom

  even though it was folded and not entirely visible. They all

  responded they could. The prosecutor then asked a potential juror

  if she was on the gameshow “Who Wants to be a Millionaire”

  whether she could identify the flag for the one-million-dollar

  question. The juror responded that it was the United States flag.

¶ 55   This colloquy trivialized reasonable doubt and, thus,

  attempted to lower the prosecution’s burden of proof. See People v.


                                    20
  Camarigg, 2017 COA 115M, ¶ 45 (noting that reasonable doubt

  analogies can be inappropriate when they trivialize the State’s

  burden). If the prohibition against “trivializing” reasonable doubt is

  to mean anything, then it must apply here, where the prosecutor

  analogized finding the defendant guilty to submitting an answer on

  a game show. In a similar case, the Washington Court of Appeals

  held that the prosecutor’s remark, “[t]o be able to find reason to

  doubt, you have to fill in the blank,” was flagrant misconduct.

  State v. Johnson, 243 P.3d 936, 939–41 (Wash. Ct. App. 2010).

¶ 56   It is also improper to illustrate reasonable doubt with “iconic

  images,” like the American flag. Camarigg, ¶ 47 (citing cases

  holding that the use of the Statue of Liberty and Abraham Lincoln

  improper because they are iconic images). The danger is that, by

  using iconic, easily recognizable images, the jury may conclude that

  guilt beyond a reasonable doubt is easy to determine, and thus,

  that the reasonable doubt standard is a low burden of proof. These

  statements on reasonable doubt were improper.

              2.    Improper Statements of Personal Belief

¶ 57   Next, during the prosecutor’s opening statement, he told the

  jury, “I think you’ll agree with me at the end of testimony, that the


                                    21
  defendant is guilty of the charges,” and he later said, “I think you’ll

  agree with me that it was, in fact, the defendant who ran.” These

  two statements were clearly improper because they expressed

  “personal belief as to the guilt of the defendant by the prosecutor.”

  Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005).

¶ 58        And during closing argument, the prosecutor improperly

  expressed his personal opinion as to Vialpando’s guilt for a third

  time by attacking her credibility. He told the jury that he did not

  have to prove why Vialpando made a false report “or what we

  believe is a false report” regarding Vialpando’s reported robbery.

  (Emphasis added.)

       3.     Improper Questions About the Veracity of Another Witness

¶ 59        It was also improper for the prosecutor to repeatedly ask

  Vialpando on cross-examination whether another witness, a police

  officer, was “mistaken.” This is because it is categorically improper

  to ask a witness to opine on the veracity of another witness, and

  this prohibition includes questions asking whether another witness

  is mistaken. Liggett v. People, 135 P.3d 725, 732–35 (Colo. 2006).

  This improper question was repeated by the prosecutor four times.




                                        22
               4.   Improper Mischaracterization of the Evidence

¶ 60        Lastly, the prosecutor mischaracterized the evidence in his

  closing argument. He asked the jury “why didn’t [Vialpando] go out

  and get a new ID?” But Vialpando’s unrebutted testimony was that

  she did get a new ID. Prosecutors may not misstate the evidence.

  People v. Van Meter, 2018 COA 13, ¶ 24.

¶ 61        Although these errors are less serious than the prosecutor’s

  flight comments, “technical errors may have a significance requiring

  a reversal in a close case.” Howard-Walker, ¶ 45 (quoting Oaks v.

  People, 150 Colo. 64, 67, 371 P.2d 443, 446 (1962)). As discussed

  in Part II.B, if the evidence of the items found in the car is explained

  away, this is a close case.

       5.     Improper Testimony Identifying Vialpando as the “Primary
                                     Suspect”

¶ 62        In addition to multiple instances of prosecutorial misconduct,

  testimony given by the lead investigating officer constituted

  evidentiary error. A witness may not opine that the defendant is

  guilty or testify that he or she believes the defendant committed the

  crime. People v. Penn, 2016 CO 32, ¶ 31.




                                       23
¶ 63   But here, the lead investigating officer testified that Vialpando

  was the “primary suspect.” The Attorney General contends that the

  officer’s testimony was permissible both because police officers can

  properly explain steps they took in the course of their investigation

  and because the testimony dispelled any implication that the

  investigation was cursory.

¶ 64   But this testimony did nothing to explain the officer’s

  investigation, nor did it bolster the thoroughness of the

  investigation. In no way did the testimony dispel any purported

  implication that the investigation was not thorough because simply

  naming a suspect demonstrates nothing about the thoroughness of

  the investigation that led to that conclusion.

¶ 65   Caution is warranted when the course-of-the-investigation

  exception is used to admit otherwise inadmissible evidence. People

  v. Bobian, 2019 COA 183, ¶ 51 (Berger, J., specially concurring)

  (citing United States v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997)).

  We conclude that the exception is inapplicable here.

¶ 66   Thus, the effect of the testimony identifying Vialpando as the

  primary suspect could only have been an improper one:

  demonstrating the officer’s belief that Vialpando was guilty.


                                    24
  Although this was lay testimony, it contained an added degree of

  prejudice because the testimony was from the lead investigating

  officer in the case. Martinez v. State, 761 So. 2d 1074, 1080 (Fla.

  2000) (“[T]here is an increased danger of prejudice when the

  investigating officer is allowed to express his or her opinion about

  the defendant’s guilt.”).

                   6.   Cumulative Effect of the Errors

¶ 67   Under cumulative error review, the ultimate question is

  whether the errors deprived the defendant of a fair trial. Howard-

  Walker, ¶ 40.

¶ 68   There is no formula or algorithm into which an appellate court

  inputs errors, and then the formula spits out the result — harmless

  error or reversal. Rather, as the supreme court demonstrated in

  Howard-Walker, appellate judges must use careful judgment to

  evaluate the errors both individually and cumulatively to reach a

  conclusion whether the fairness of the trial was impaired. Not

  surprisingly, given this process, judges viewing the same evidence

  and acting entirely in good faith may come to different conclusions

  regarding harmlessness. Such is the case here.




                                    25
¶ 69   In our view, the teaching of Howard-Walker is that when there

  are multiple instances of documented (not just alleged)

  prosecutorial misconduct, an appellate court must look long and

  hard at whether the defendant received a fair trial because a fair

  trial is the only constitutional means of depriving a person of his or

  her liberty. U.S. Const. amend. XIV.

¶ 70   From voir dire to closing arguments, Vialpando’s trial was

  infected with errors. And like in Howard-Walker, these six

  identified errors occurred over the course of a relatively short trial

  — here, three days. See Howard-Walker, ¶ 3 (two days). The

  prosecutorial misconduct, in combination with the officer’s

  improper testimony that Vialpando was the primary suspect,

  deprived her of a fair trial.

                  D.    Reliability of R.H.’s Identification

¶ 71   Vialpando next argues that the trial court reversibly erred by

  denying her motion to suppress the out-of-court photo

  identification. We address this argument because it is likely to

  arise on retrial. The trial court’s findings on reliability are

  supported by the record, so we conclude that the identification was

  properly admitted.


                                     26
                               1.   The Law

¶ 72    The constitutionality of pretrial identification procedures is a

  mixed question of law and fact. Bernal v. People, 44 P.3d 184, 190

  (Colo. 2002); People v. Martinez, 2015 COA 37, ¶ 9. We defer to the

  trial court’s factual findings, but “we may give different weight to

  those facts and may reach a different conclusion in light of the legal

  standard.” Martinez, ¶ 9.

¶ 73    Vialpando objected to the out-of-court identification, so “if the

  district court erred, we apply the constitutional harmless error

  standard to determine whether reversal is required.” Id. at ¶ 10.

  “Under this standard, the prosecution must show that the error was

  harmless beyond a reasonable doubt,” and we reverse if there is a

  reasonable possibility that the error contributed to the conviction.

  Id.

¶ 74    To determine whether an out-of-court identification is

  admissible, we apply a two-part test. Bernal, 44 P.3d at 191. The

  defendant must first demonstrate that the identification was

  impermissibly suggestive. Id. If the defendant does not carry her

  burden, the inquiry is over and the identification is admissible. If

  the defendant meets this burden, the prosecution must


                                     27
  demonstrate that the identification was nevertheless reliable under

  the totality of the circumstances. Id. at 192.

¶ 75   The trial court found, with record support, that the lineup was

  impermissibly suggestive, so we proceed to the second part of the

  test and review whether the identification was nonetheless reliable.

  To determine reliability, courts consider the five Bernal factors: (1)

  the witness’s opportunity to view the suspect at the time of the

  crime; (2) the witness’s degree of attention; (3) the accuracy of the

  witness’s prior description of the suspect; (4) the level of certainty

  demonstrated by the witness at the confrontation; and (5) the

  length of time between the crime and the confrontation. People v.

  Singley, 2015 COA 78M, ¶ 15.

¶ 76   These factors, however, must sufficiently weigh against “the

  corrupting effect of the suggestive identification.” Id. (quoting

  People v. Borghesi, 66 P.3d 93, 104 (Colo. 2003)). Identification

  testimony is admissible when “the totality of the circumstances

  does not suggest a very substantial likelihood of misidentification.”

  People v. Godinez, 2018 COA 170M, ¶ 58 (quoting Borghesi, 66 P.3d

  at 104).




                                     28
                             2.    Application

¶ 77   We conclude that the evidence presented at the suppression

  hearing supports the trial court’s reliability finding.

¶ 78   As to the first factor, Vialpando argues that R.H.’s

  identification was unreliable because she saw the suspect for less

  than a minute after witnessing a highly traumatic event. But the

  trial court found, with record support, that

             [R.H.] was not . . . the direct victim of any
             crime at that point, so she wasn’t in some sort
             of fear or otherwise trying to figure out how to
             get out of a circumstance. Instead she was
             simply a perceiving witness of an unusual
             event to have occurred within her proximity.

¶ 79   As to the second Bernal factor, Vialpando asserts that R.H.’s

  attention was divided because she watched two people flee the

  crash. But R.H. gave a detailed description of the suspect’s

  clothing, indicating that R.H. had a high degree of attention. Also,

  the trial court found that she was not distracted by “other collateral

  matters, she was not listening to the radio, not on the telephone

  and was alone in the car.” Thus, the record supports the court’s

  finding that “the accident itself focused [R.H.’s] attention as did the

  conduct of the occupants of the vehicle.”



                                     29
¶ 80   On the third factor, Vialpando argues that R.H.’s description

  was significantly inconsistent with Vialpando’s appearance. But

  the record refutes this claim. R.H.’s description of the suspect’s

  height and build matched Vialpando’s height and build. And while

  Vialpando had short hair at trial, several witnesses identified her as

  having long hair, photos presented at trial depicted her with long

  hair, and Vialpando acknowledged that she sometimes wore a wig.

  (Vialpando also testified that the wig was one of the items that had

  been taken from her during the robbery.) Regarding the age

  discrepancy, the court acknowledged that R.H.’s estimated age

  differed from Vialpando’s age but recognized that an “individual

  may have difficulty estimating the age of an individual that they

  don’t know, given the fact that people display their age very

  differently.” Also, R.H. testified that the suspect was wearing a lot

  of makeup, which the court noted could have made the suspect

  appear younger than her age.

¶ 81   As to the fourth factor — the level of certainty — Vialpando

  points to R.H.’s testimony that it was only “possible” that Vialpando

  was the woman she had seen fleeing the crash and that she was

  only seventy-five percent certain. But the trial court noted that


                                    30
  R.H.’s uncertainty was driven by her desire “to be very certain

  about her identification and not overestimate.” The court found

  R.H.’s testimony credible, concluding that her identification had “a

  high level of certainty.”

¶ 82   Lastly, the court found that the length of time between the

  crime and the identification — approximately a week — was not

  “unacceptably lengthy” because what R.H. witnessed was “still

  relatively fresh in her mind.” We agree. See Bernal, 44 P.3d at 194

  (remanding to determine reliability when there was a six-week gap

  between the robbery and the photo array).

¶ 83   After weighing these factors against the suggestive

  identification procedures, we cannot conclude that the trial court

  erred in admitting the identification.

                    E.    Reasonable Doubt Analogies

¶ 84   Finally, we briefly address Vialpando’s claim regarding the

  trial court’s reasonable doubt analogies during voir dire.

¶ 85   This case is the most recent installment in what appears to be

  a never-ending series of cases involving trial judges’ well-

  intentioned but almost always misguided efforts to explain

  reasonable doubt with analogies and examples. “Since at least


                                    31
  1914, Colorado appellate courts have been discouraging trial courts

  from creating their own formulations of reasonable doubt.” People

  v. Knobee, 2020 COA 7, ¶ 28. While always admonishing, our

  published and unpublished cases have not reversed when analyzing

  these problematic statements or instructions that attempt to

  further define reasonable doubt, with only one exception.2 Compare

  Knobee, 2020 COA 7 (holding that the trial court’s reasonable doubt

  instruction constituted structural error requiring reversal), with

  People v. Tibbels, 2019 COA 175 (cataloguing, in an appendix,

  twenty-three decisions addressing reasonable doubt explanations,

  none requiring reversal).

¶ 86   We are hopeful that the Colorado Supreme Court’s recent

  decision in Johnson v. People, 2019 CO 17, will put the final nail in

  the coffin as to reasonable doubt analogies. There, the supreme

  court reasoned that the trial court’s reasonable doubt comments



  2 Judge Dailey argued in dissent in People v. Knobee that not all
  statements made by a trial court on reasonable doubt are jury
  instructions, so not all erroneous statements on reasonable doubt
  require reversal under structural error. 2020 COA 7, ¶ 72 (Dailey,
  J., concurring in part and dissenting in part). Because we reverse
  on other grounds, we do not address whether the trial court’s
  statements in this case were jury instructions.

                                    32
  were “problematic.” Id. at ¶ 17. The court also noted the United

  States Supreme Court’s admonition that attempts to further define

  reasonable doubt “do not provide clarity.” Id. at ¶ 13 (citing Holland

  v. United States, 348 U.S. 121, 140 (1954)).

¶ 87   Because we reverse Vialpando’s conviction without regard to

  the problematic analogies used by the trial court, we do not decide

  whether the use of those analogies is a separate ground for reversal,

  on the basis of structural error or otherwise. Presumably, given the

  uniform rejection of these analogies by this court, the Colorado

  Supreme Court, and the United States Supreme Court, a retrial will

  not be burdened by such analogies.

                            III.   Conclusion

¶ 88   The judgment of conviction is reversed. The case is remanded

  for a new trial.

       JUDGE LIPINSKY concurs.

       JUDGE FOX concurs in part and dissents in part.




                                    33
       JUDGE FOX, concurring in part and dissenting in part.

¶ 89   I agree with the majority’s analysis of the sufficiency of the

  evidence challenge, and I need not say more on the subject.

  Likewise, I concur with the majority’s analysis concerning

  Vialpando’s identification challenges and her attack on the trial

  court’s efforts to explain reasonable doubt. While I agree with

  significant portions of the majority’s opinion, I cannot sign on to the

  portion of the opinion that finds reversible cumulative error. I also

  would not conclude that the prosecutor’s “flight” comments

  punished Vialpando for exercising a constitutional right. In my

  view, the majority asks too much of the trial judges whose primary

  and rightful role is to neutrally administer justice, not to insert

  themselves into a trial with competent counsel on each side.

  Because, in my view, any error does not warrant reversal, I would

  affirm the judgment of conviction.

¶ 90   The majority fairly sets out the procedural history and the

  operative facts. Accordingly, I will not repeat those here except as

  necessary to explain my reasoning.




                                     34
                       I.    Prosecutorial Misconduct

¶ 91   Vialpando contends that the trial court reversibly erred by

  allowing the prosecutor to commit misconduct during voir dire,

  opening remarks, closing and rebuttal closing remarks, and her

  cross-examination. I conclude that any asserted misconduct does

  not warrant reversal.

                        A.    Additional Background

¶ 92   During voir dire, the prosecutor used two analogies to

  question potential jurors about the reasonable doubt standard.

  First, the prosecutor pointed to a folded United States flag that was

  behind the trial judge, asking a potential juror to explain how he

  could tell it was a United States flag. The following colloquy

  occurred:

              [Prosecutor]: You said it’s an American flag.
              How can you tell?

              [Potential Juror]: Because of the stars and the
              stipes and the color. . . . I don’t know how
              many stars are on it.

              ....

              [Prosecutor]: Isn’t it possible that just to trick
              [potential juror] I snuck in here last night and
              I got a different flag and I put it up there
              behind the judge and carefully arranged it . . .


                                      35
            so I could trick somebody? . . . [D]oes that
            mesh with your common sense?

            [Potential Juror]: No.

            [Prosecutor]: Okay. Would you say that that is
            speculative?

            [Potential Juror]: Yes.

            [Prosecutor]: All right. . . . If you were on Who
            Wants to be a Millionaire and the final
            question for $1 million is, What is that object?
            What would your answer be?

            [Potential Juror]: A United States flag.

            [Prosecutor]: Even though you can’t see every
            little bit of that flag?

            [Potential Juror]: Yes.

            [Prosecutor]: Now, is that based on your own
            reason and common sense?

            [Potential Juror]: Yes.

            ....

            [Prosecutor]: Would you believe that that flag
            is an American flag beyond a reasonable
            doubt?

            [Potential Juror]: Yes.

¶ 93   During the prosecutor’s opening remarks, he stated, regarding

  the evidence against Vialpando, that “I think you’ll agree with me at

  the end of testimony — that the defendant is guilty of the charges,”



                                      36
  and that “at the end of [the evidence presentation] I think you’ll

  agree with me that it was, in fact, the defendant who ran.”

¶ 94   During Vialpando’s cross-examination, the following colloquy

  occurred:

              [Prosecutor]: So if the Denver police officer had
              written that [Vialpando was transient] in his
              report, he would be mistaken?

              [Vialpando]: I didn’t become homeless until
              after this, when I had to stay and testify or do
              what I had to do to get this resolved.

              ....

              [Prosecutor]: So if the Denver police officer had
              noted that you had long brown hair in his
              report, he would be mistaken?

              [Vialpando]: Well, I did have hair, but it’s in my
              luggage, and I can wear it, so stolen. But I
              didn’t have hair that day.

              ....

              [Prosecutor]: So my question was, though,
              when you went down to the police station, if
              the Denver police officer had written that you
              had long brown hair, you would be mistaken?
              Or he would be mistaken?

              [Vialpando]: Yeah. . . .

              ....

              [Prosecutor]: I would just like you to answer
              my question. If the officer wrote that you had


                                         37
            long brown hair in his report, he would be
            mistaken?

            [Vialpando]: Could be.

¶ 95   The prosecutor later began his closing arguments with the

  following statement:

            Yolanda Vialpando, ran. A few moments
            before she had crashed a stolen 2006 Mercury
            Mariner . . . [s]he opened the driver’s-side door
            and ran. . . . Before that she had run . . . from
            the officers. . . . The defendant ran. And
            although she is seated now, that flight
            continues to this moment. But it ends today.

¶ 96   He similarly ended rebuttal closing:

            The defendant ran that day. She ran from the
            police, and she ran after she had an accident
            that left in its wake [E.H.] severely injured and
            in pain to this day. And that flight has
            continued up and to this point. And it ends
            with you. It ends when you go back to the jury
            deliberation room and you take out the most
            powerful tool in this courtroom, a pen, and you
            end her flight by signing “guilty[.]”

¶ 97   In reference to R.H.’s trial testimony, the prosecutor stated

  that R.H. was able to

            identify [Vialpando] today . . . she was able to
            identify her facial features, her body structure,
            . . . [s]he was able . . . to point the finger and
            say, yeah . . . that’s her. I’m not 100 percent
            sure because she was wearing makeup, but,
            yeah, that’s who I saw get out of the car.


                                     38
¶ 98   During defense counsel’s closing statements, the trial court

  reminded jurors that “opening statements and closing arguments

  are not evidence. The closing arguments, as I told you earlier, are

  what the attorneys themselves think the evidence has shown. And

  so I want to remind you that it is not evidence that you can

  consider other than for their argument.”

¶ 99   During rebuttal closing, the prosecutor began with an analogy:

            So far this reminds me of a story of a game
            warden who was tasked in a small town of
            policing a fishing pond. And so he went down
            there one day at about dusk, saw a guy
            walking away from that pond with . . . buckets
            full of fish. And people don’t typically have
            licenses, and so he goes up to him and he
            says, excuse me, sir, do you have a license for
            those fish? And he says, well, no, sir. These
            are my pet fish. And the game warden says,
            what do you mean, your pet fish?

            He says, well, I have my pet fish and I take
            them down to the lake every night and I dump
            them out into the lake and I let them swim
            around a little bit, and then I whistle and they
            jump back into the bucket and we go home.
            And the game warden says, well, I don’t believe
            that. But he’s intrigued at this point so he
            figures he’s got to go see this for himself. So
            he says, all right. You take me down to the
            lake and you show me. He says, all right.

            So they go down to the shore of the lake. The
            man, he dumps the fish into the lake, and they


                                   39
             swim away. They wait there for a minute. The
             game warden says, well?

             The guy says, well, what?

             Well, call them back.

             Call who back?

             The fish.

             What fish?

             Now, members of the jury, this is a “what fish”
             type of case where you have an identification
             based on a witness with no stake in this case
             from a six-pack lineup, that saw that person
             get out of the car and identify her in court
             today. And if you believe her it’s a guilty
             verdict. Stacked up against a “what fish” from
             the defendant, Ms. Vialpando.

¶ 100   Regarding Vialpando’s testimony that she was robbed, the

  prosecutor stated,

             Now, I’m not saying she has some kind of
             magic crystal ball. I’m not saying that she
             didn’t make that report. But what’s important
             isn’t whether she made the report, what’s
             important is whether or not she was robbed.
             Because if she wasn’t robbed, she still has
             those items on her for when she left them in
             the car the next day. Because let’s face it,
             there are lots of reasons people might make a
             police report. We heard the officer testify from
             Denver, the star witness for the defense, that
             there’s a lot —




                                     40
¶ 101   Defense counsel objected to the “star witness” characterization

  of Officer Iverson, and the court reminded the jurors that “this is

  not evidence, you are to consider it as argument.”

¶ 102   The prosecutor continued,

             You can go on and on and on for all the other
             reasons that she might have made this up to
             the officers, but the bottom line is it’s a red
             herring. It’s a “what fish” story. And the only
             thing we need to look at is the story itself for
             us to figure out that it doesn’t make sense. . . .
             And then we have, for lack of a better word, a
             cartoonish version of a robbery. A man stops
             you and says “stick ’em up” with a ski mask
             on? No details beyond that? Nothing to
             corroborate it?

             And then, quote, “I proceeded to walk west,” is
             what she said. And then when [defense
             counsel] pressed her on that, said, Well, why
             didn’t you run? She testified, Well, I don’t
             know why I didn’t run. And had to be
             prompted, Well wasn’t your foot hurting? Oh,
             yeah, my foot was hurting. My foot was
             injured. That’s why I didn’t run.

             I think we all saw what happened yesterday
             during her testimony. But that wasn’t the only
             prompting that Ms. Vialpando was receiving as
             she was testifying. I’m asking you to use your
             own common sense when that was occurring.

¶ 103   Regarding Vialpando’s Denver robbery police report, the

  prosecutor told the jury, “I don’t have to explain to you why the



                                     41
  defendant made that report. It’s not my burden to do that.”

  Defense counsel objected, and the court again reminded jurors that

  closing statements “are argument. You have already received all of

  the evidence that you may properly consider.” The prosecutor

  continued,

             I don’t have the burden to prove to you why
             she did what she did as far as that false report
             — or what we believe is a false report. What
             the evidence has showed is a false report.
             What I do have to show is that she was driving
             that car. And [R.H.] is the person to look to for
             that. The fact is that her purse and that all of
             her items were found in that car and not the
             car that she said the person who reputatively
             robbed her was driving.

               B.    Preservation and Standard of Review

¶ 104   In reviewing a prosecutorial misconduct claim, we first

  determine whether the conduct at issue was improper based on the

  totality of the circumstances, and if there was misconduct, we next

  determine whether the misconduct warrants reversal under the

  applicable reversal standard. People v. Galvan, 2019 COA 68, ¶ 57

  (cert. granted Jan. 13, 2020).

¶ 105   “Whether a prosecutor committed misconduct is an issue

  within the trial court’s discretion.” People v. Van Meter, 2018 COA



                                    42
  13, ¶ 25. Accordingly, we ask not “whether we would have reached

  a different result but, rather, whether the trial court’s decision fell

  within a range of reasonable options.” Id. (quoting People v. Rhea,

  2014 COA 60, ¶ 58).

¶ 106   Vialpando’s attorney generally failed to contemporaneously

  object to the prosecutor’s statements that she challenges on appeal

  except for the prosecutor’s characterization of Iverson as her “star

  witness” and the prosecutor’s statement that it was not his burden

  to explain why Vialpando filed a robbery report. I review these two

  preserved contentions for harmless error, reversing only if the error

  affected Vialpando’s substantial rights, meaning the error

  “substantially influenced the verdict or affected the fairness of the

  trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting

  Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 107   I review Vialpando’s other, unpreserved contentions for plain

  error, reversing only for an “obvious and substantial” error. Hagos,

  ¶ 14. It is rare for prosecutorial misconduct in closing argument to

  be so egregious that it constitutes plain error. Rhea, ¶ 43.




                                     43
                         C.    Law and Analysis

¶ 108   Claims of improper argument are assessed “in the context of

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

  jury.” Van Meter, ¶ 24 (citation omitted). During closing remarks,

  prosecutors have wide latitude in the language and style they

  choose to employ, especially in responding to an argument by

  defense counsel. Domingo-Gomez v. People, 125 P.3d 1043, 1048

  (Colo. 2005); People v. Perea, 126 P.3d 241, 247 (Colo. App. 2005).

  A prosecutor “may employ rhetorical devices and engage in

  oratorical embellishment and metaphorical nuance, so long as he or

  she does not thereby induce the jury to determine guilt on the basis

  of passion or prejudice, attempt to inject irrelevant issues into the

  case, or accomplish some other improper purpose.” Van Meter,

  ¶ 24 (quoting People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003)).

  Additionally, “because arguments delivered in the heat of trial are

  not always perfectly scripted, reviewing courts accord prosecutors

  the benefit of the doubt when their remarks are ambiguous or

  simply inartful.” People v. Samson, 2012 COA 167, ¶ 30.

¶ 109   However, a prosecutor may not misstate the evidence or the

  law. Van Meter, ¶ 24. Nor may a prosecutor denigrate defense


                                    44
  counsel or imply that defense counsel has presented the

  defendant’s case in bad faith. People v. Collins, 250 P.3d 668, 678

  (Colo. App. 2010). But, a prosecutor may comment on the strength

  of the defense’s theories, or the absence of evidence to support a

  defendant’s contentions, and, in doing so, does not shift the burden

  to the defense. People v. Serra, 2015 COA 130, ¶ 88; People v.

  Estes, 2012 COA 41, ¶ 28.

¶ 110   On cross-examination, a prosecutor may ask “non-prejudicial

  questions that highlight the discrepancies and later emphasize any

  conflicting accounts by juxtaposing them in closing argument.”

  Liggett v. People, 135 P.3d 725, 732 (Colo. 2006). However, when a

  prosecutor asks a witness to opine on the veracity of another

  witness, such questioning invades the province of the fact finder

  and is categorically improper. Id. And “were they lying” type

  questions — including asking a defendant whether another witness

  was “mistaken” — are improper. People v. Koper, 2018 COA 137,

  ¶ 32. But, under the plain error standard, even when a prosecutor

  asks a defendant if another witness “made up” something, to be an

  “obvious” error, the error must also be “substantial”; and reversal is




                                    45
  warranted only if the error was “seriously prejudicial.” People v.

  Kessler, 2018 COA 60, ¶¶ 47-48.

¶ 111   When determining whether a prosecutor’s statements were

  improper and whether reversal is warranted, we may consider the

  language used, the context of the statements, whether a statement

  improperly expressed the prosecutor’s personal opinion, whether

  the statement was an acceptable comment on the credibility of

  witnesses, the strength of the evidence, whether the evidence is

  conflicting or inconclusive, whether the prosecutor improperly

  appealed to the jurors’ sentiments, whether the misconduct was

  repeated, and any other relevant factors. People v. Walters, 148

  P.3d 331, 335 (Colo. App. 2006); see also People v. Strock, 252 P.3d

  1148, 1153 (Colo. App. 2010) (“To determine whether prosecutorial

  misconduct requires reversal, we must evaluate the severity and

  frequency of the misconduct, any curative measures taken by the

  trial court to alleviate the misconduct, and the likelihood that the

  misconduct constituted a material factor leading to the defendant’s

  conviction.”). And we may “consider a lack of contemporaneous

  objection by the defendant” as demonstrating the defense’s belief

  “that the live argument, despite its appearance in a cold record, was


                                    46
  not overly damaging.” Walters, 148 P.3d at 334 (quoting Domingo-

  Gomez, 125 P.3d at 1054). We also focus on the cumulative effect

  of a prosecutor’s statements, looking to the language used, the

  nature of the misconduct, the degree of prejudice to the defendant,

  the surrounding context, and the strength of the evidence against

  the defendant. People v. Nardine, 2016 COA 85, ¶ 65.

              1.   Voir Dire Reasonable Doubt Illustration

¶ 112   Vialpando first contends that the prosecutor’s use of the folded

  American flag during voir dire and asking jurors if they would

  identify it as an American flag on the gameshow “Who Wants To Be

  a Millionaire?” was improper. Specifically, she argues that it

  impermissibly (1) quantified the prosecution’s burden of proof by

  suggesting that the jurors’ ability to recognize the flag — where only

  a portion of it was visible — equaled proof beyond a reasonable

  doubt, and (2) trivialized the burden of proof by comparing the

  reasonable doubt standard to a trivia question for money.

¶ 113   Assuming the challenged conduct was improper, the trial

  court did not commit plain error absent a contemporaneous

  objection. See Van Meter, ¶ 32 (holding that the prosecutor’s puzzle

  analogy during voir dire was improper but not plain error); People v.


                                    47
  Carter, 2015 COA 24M-2, ¶ 58 (assuming that allowing the use of a

  puzzle analogy was improper and concluding that it was not

  obvious under plain error review); Walters, 148 P.3d at 334; see

  also Rhea, ¶ 43.

¶ 114   First, the trial court properly instructed the jury multiple

  times on the proper meaning of reasonable doubt, and I presume

  the jury followed the court’s instructions. See People v. Tibbels,

  2019 COA 175, ¶ 39. Second, the prosecutor’s use of the flag and

  gameshow analogy was relatively brief and isolated. See Van Meter,

  ¶ 33; Carter, ¶ 60. Indeed, the prosecutor did not reference the

  analogy in closing arguments. See Van Meter, ¶ 31 (holding that

  the prosecutor’s use of a puzzle analogy during voir dire was

  improper but not plain error where the prosecutor also showed the

  image during closing arguments). And third, the prosecutor’s

  reasonable doubt illustrations, when taken in context, were not an

  attempt to present inadmissible factual matter or to argue the

  prosecution’s case to the jury. See People v. Krueger, 2012 COA 80,

  ¶ 50 (“A prosecutor engages in prosecutorial misconduct during voir

  dire when she misstates the law or ‘intentionally use[s] the voir dire

  to present factual matter which the prosecutor knows will not be


                                     48
  admissible at trial or to argue the prosecution’s case to the jury.’”

  (quoting People v. Adams, 708 P.2d 813, 815 (Colo. App. 1985))).

¶ 115   Accordingly, any error was neither obvious nor substantial,

  and given the strength of the evidence against Vialpando, see

  Walters, 148 P.3d at 335, I cannot conclude that the prosecutor’s

  reasonable doubt analogies so undermined the fundamental

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

  judgment of conviction, see Hagos, ¶ 14.

                         2.    Opening Statement

¶ 116   Vialpando next asserts that the prosecutor’s remark during

  opening statements that he believed that she was guilty of the

  charges was an improper expression of his personal opinion of

  Vialpando’s guilt. See Krueger, ¶ 50 (“[A] prosecutor may not . . .

  offer a personal opinion as to the defendant’s guilt.”).

¶ 117   Assuming the prosecutor’s remark was improper, it did not

  amount to plain error. The comments made up a small part of the

  prosecutor’s opening argument, during which the prosecutor

  generally fairly summarized the evidence and provided evidence-

  based reasons why the jury should find Vialpando guilty. See Van

  Meter, ¶ 24. Vialpando’s counsel did not object to the statement.


                                     49
  See Walters, 148 P.3d at 334. Further, the trial court provided the

  jury with proper credibility and presumption of innocence

  instructions. See Strock, 252 P.3d at 1153. Thus, while the

  statement may have been inartful, see Samson, ¶ 30, I cannot

  conclude that it so undermined the trial’s fundamental fairness as

  to cast serious doubt on the reliability of the verdicts, see People v.

  Wilson, 2014 COA 114, ¶ 56; see also Rhea, ¶ 43.

                   3.   Vialpando’s Cross-examination

¶ 118   Vialpando argues that the prosecutor’s questions during her

  cross-examination, asking whether other witnesses were “mistaken”

  in their testimony, improperly required her to comment on witness

  veracity. I agree that asking Vialpando if other witnesses were

  “mistaken” was improper, see Koper, ¶ 32, but conclude that it did

  not amount to plain error, see id. at ¶¶ 47-48.

¶ 119   While the statements were obviously improper, and the trial

  court should have stepped in, the error was not substantial. The

  prosecutor did not comment on Vialpando’s credibility or that of the

  other witnesses, and defense counsel did not object. See Walters,

  148 P.3d at 334-35. The prosecutor’s improper line of questioning

  was also limited. See Kessler, ¶¶ 47-52 (holding that the


                                     50
  prosecutor asking the defendant whether a detective “made up”

  something was not a “substantial” error where the question was

  only a small part of the defendant’s testimony, the question was

  less damaging than explicitly asking if defendant thought the officer

  was “lying,” and the evidence against defendant was strong); cf.

  Koper, ¶ 45 (holding that the prosecutor asking the defendant

  whether another witness was lying constituted plain error because

  “[a]lmost the entirety” of the prosecutor’s cross-examination

  consisted of “impermissible questions”). Lastly, I cannot conclude

  that the error was substantial because it does not undermine my

  confidence in the jury’s verdicts. See People v. McBride, 228 P.3d

  216, 224 (Colo. App. 2009) (holding that although the prosecutor’s

  statements were obvious error, they did not constitute plain error

  because the conduct “was not sufficient to undermine our

  confidence” in the verdict).

                   4.   Closing and Rebuttal Remarks

¶ 120   Vialpando first argues that the prosecutor’s flight remarks

  during closing and rebuttal were improper because they used

  Vialpando’s exercise of her right to a jury trial to create an inference




                                     51
  of guilt and undermined her presumption of innocence, thereby

  lowering the prosecution’s burden of proof. I disagree.

¶ 121   While possibly inartful, see Samson, ¶ 30, the prosecutor’s

  flight remarks were merely examples of oratorical embellishment

  and metaphorical nuance, see Van Meter, ¶ 24. The prosecutor was

  not attempting to inject irrelevant issues into the case but rather

  was highlighting his argument, based on evidence presented, that

  Vialpando fled from the police on December 30, 2015, in the motel

  parking lot and after the car crash. See id. Moreover, I cannot

  conclude that the prosecutor lowered the burden of proof given that

  the jury was properly instructed that closing statements were not

  evidence and that the prosecution had to prove every element

  beyond a reasonable doubt. See Strock, 252 P.3d at 1153.

¶ 122   This case differs from United States v. Hardy, 37 F.3d 753 (1st

  Cir. 1994) — on which the majority relies heavily — in several

  significant ways. First, in Hardy neither of the two defendants

  testified, and the only possible connotation of the running and

  hiding statement was “that the defendants were running from the

  evidence presented against them, and hiding behind their right to

  silence during the trial.” Id. at 758. Here, unlike in Hardy,


                                    52
Vialpando did testify, so the prosecutor’s statement that her “flight

continues to this moment” was not an improper comment on

Vialpando’s exercise of her Fifth Amendment right to silence or

Sixth Amendment right to a jury trial. Rather, the prosecutor’s

language is better understood, in context, as arguing that the

evidence at trial established that Vialpando first ran away from

police in the stolen car after officers spotted the stolen car in the

motel parking lot and, later, ran away from the stolen car after she

crashed it. Second, in Hardy, the defense counsel objected

promptly and moved for a mistrial. Here, in contrast, there was no

contemporaneous objection on this basis, which perhaps

underscores the unimportance counsel attached to the now alleged

impropriety at trial. See Walters, 148 P.3d at 334; see also United

States v. Stark, 507 F.3d 512, 519-20 (7th Cir. 2007)

(distinguishing Hardy and concluding that, viewed in context, the

use of “hiding” in the prosecution’s closing was not plain error).

Finally, the evidence implicating the defendants in Hardy was not

particularly strong. 37 F.3d at 759. The evidence against

Vialpando in this case, by contrast, was significantly stronger: R.H.




                                   53
  gave eyewitness testimony and Vialpando’s belongings were found

  in J.A.’s stolen vehicle.

¶ 123   Although the Hardy decision does not control here — and I do

  not find it particularly persuasive in Vialpando’s case —

  prosecutors should recognize the hazard involved in using words

  like “run” and “flight” to characterize a defendant’s trial strategy,

  especially in a case where she does not testify. Accordingly, skilled

  and disciplined prosecutors should “resist the temptation to use

  rhetorical cliches that threaten mistrials or reversals on appeal.”

  Commonwealth v. Coyne, 686 N.E.2d 1321, 1325 (Mass. App. Ct.

  1997).

¶ 124   Second, Vialpando argues that the prosecutor’s references to

  her defense theory as a “red herring” and the “what fish” story

  improperly suggested to the jury that Vialpando’s defense was not

  asserted in good faith. She also contends that the prosecutor’s

  reference to Iverson as the defense’s “star witness” was meant to

  suggest that she made a false report to the Denver police; thus, she

  contends that these veracity comments constituted improper bad

  character arguments. I disagree.




                                     54
¶ 125   Given the prosecutor’s wide latitude in responding to defense

  counsel’s arguments in rebuttal closing, see Domingo-Gomez, 125

  P.3d at 1048; Perea, 126 P.3d at 247, including the use of oratorical

  embellishment and metaphorical nuance, see Van Meter, ¶ 24, I

  conclude that the challenged statements were not improper.

  Rather, the prosecutor was using these metaphors to argue, based

  on reasonable inferences from the evidence presented, that

  Vialpando’s defense theory was weak, pointing to the lack of

  evidence to support her robbery theory. See Serra, ¶ 88; Estes,

  ¶ 28; Walters, 148 P.3d at 334 (A prosecutor “may refer to the

  strength and significance of the evidence, conflicting evidence, and

  reasonable inferences that may be drawn from the evidence.”); see

  also Strock, 252 P.3d at 1155 (“[T]he prosecutor’s comments on the

  lack of evidence to support Strock’s defense theory that he was not

  driving at the time of the accident did not improperly shift the

  burden of proof to Strock. Thus, we conclude there was no error,

  much less plain error.”).

¶ 126   Third, Vialpando argues that the prosecutor’s statement

  during closing that defense counsel was “prompting” Vialpando to

  testify a certain way suggested that she engaged in unethical


                                    55
  conduct and implied that defense counsel did not have a good faith

  belief in Vialpando’s innocence. I again disagree.

¶ 127   When viewed in context, see Van Meter, ¶ 24, the prosecutor’s

  statement was not meant to denigrate Vialpando or her counsel.

  Rather, it was an attempt to refocus the jury’s attention on relevant

  evidence and to encourage the jury to reject Vialpando’s defense

  theory that she had been robbed. See Serra, ¶ 89 (recognizing that

  while “[r]eferences to a defendant’s or defense counsel’s diversionary

  tactics” may be improper when used to denigrate the defendant or

  defense counsel, such references are not “improper if, viewed in

  context, they are attempts to draw the jury’s focus to relevant

  evidence”); see also Wilson, ¶ 52 (“Counsel may also properly

  comment on how well and in what manner a witness’s testimony

  measures up to the tests of credibility on which the jury is

  instructed.”).

¶ 128   Nor do I agree that the prosecutor’s “prompting” statement

  was an improper attempt to imply that Vialpando’s counsel did not

  have a good faith belief in her client’s innocence. Cf. People v.

  Jones, 832 P.2d 1036, 1038-39 (Colo. App. 1991) (holding that the

  prosecutor’s statements that “defense counsel should, or did, know


                                    56
  the true facts concerning defendant’s presence upon the premises

  and that she should concede the accuracy of the prosecution’s

  testimony” improperly implied to the jurors that opposing counsel

  did not have a good faith belief in her client’s innocence).

  Accordingly, the challenged comment was merely another attempt

  by the prosecutor to highlight relevant evidence; it was not an

  attempt to divert the jury’s attention away from the facts of the case

  or make an improper emotional appeal. See Carter, ¶ 72; cf.

  Nardine, ¶ 67 (holding that the prosecutor’s misconduct constituted

  plain error where he “repeatedly diverted the jurors’ attention from

  the facts of the case,” “appealed to community sentiment,” and

  “made an emotional appeal to their religious convictions” by

  “mischaracteriz[ing] and denigrat[ing] the defense theory”).

¶ 129   Fourth, Vialpando asserts that the prosecutor impermissibly

  shifted the burden of proof by stating that it was not his burden to

  explain why Vialpando filed the Denver police report, implying that

  the defense had the burden to prove that her report was not false.

  Although the prosecutor’s statement may have been inartful, see

  Samson, ¶ 30, it was also harmless given that the court repeatedly

  properly instructed the jury — orally and in writing — on the


                                    57
  prosecution’s burden of proof and Vialpando’s presumption of

  innocence, see Hagos, ¶ 12.

¶ 130   Fifth, Vialpando contends that the prosecutor misstated the

  law on vehicular eluding and aggravated motor vehicle theft. I

  disagree.

¶ 131   When reviewing the vehicular eluding charge during closing,

  the prosecutor stated,

              Eluded or attempted to elude. When you pull
              away from the officers, when you run the stop
              lights, it doesn’t matter necessarily if they are
              pursuing you, that you are eluding or
              attempting to elude that police officer.

¶ 132   While possibly inartful, see Samson, ¶ 30, the prosecutor did

  not misstate the law. Rather, when viewed in context, see Walters,

  148 P.3d at 335, the prosecutor was attempting to explain that a

  defendant need not get away from the police in order to commit

  vehicular eluding, see § 18-9-116.5, C.R.S. 2019. The prosecutor

  followed the challenged statement by stating “that’s clearly what

  that driving behavior indicates, going on through the on ramp,” and

  noting that while J.A.’s stolen vehicle “didn’t get very far,” the driver

  was nonetheless attempting to elude the police.




                                      58
¶ 133   Regarding the aggravated motor vehicle theft charge, the

  prosecutor stated,

             The defendant does not necessarily need to be
             the person who stole the car. I want you to
             read that instruction very closely. She doesn’t
             necessarily have to be the person who took the
             car from [J.A.’s] driveway on December 19. All
             that we would have to show is that she
             exercised control over the motor vehicle of
             another without authorization. Who knows
             who owns the car that you’re driving? Well,
             you should know. A reasonable person should
             know who owns that car. It was clearly a
             stolen vehicle.

¶ 134   I also conclude that the prosecutor did not misstate the law on

  aggravated motor vehicle theft. Vialpando misstates the record in

  arguing that the prosecutor’s statement misled the jury to believe

  that the prosecution was not required to prove that Vialpando

  knowingly exercised control over the car without authorization.

  Rather, taken in context, the prosecutor was arguing that

  Vialpando knew she lacked authority to drive J.A.’s vehicle. See

  Van Meter, ¶ 24; Walters, 148 P.3d at 335. And as with the

  vehicular eluding charge, the jury was properly instructed on the

  elements of aggravated motor vehicle theft. See Strock, 252 P.3d at

  1153.



                                   59
¶ 135   Lastly, Vialpando argues that the prosecutor misstated the

  evidence by (1) stating that R.H. identified Vialpando’s “facial

  features” and that she pointed at Vialpando during trial and said

  that “that’s who I saw get out of the car”; (2) posing several

  rhetorical questions regarding Vialpando’s actions by asking if

  Vialpando was robbed, why did she not attempt to get a

  replacement identification or health insurance card or replace her

  debit card; and (3) stating that Vialpando made “further denials”

  about her 1997 felony convictions.

¶ 136   While prosecutors may not misstate the evidence, see Van

  Meter, ¶ 24, I am not aware of any Colorado law that requires a

  prosecutor to repeat witness testimony verbatim rather than

  summarize evidence in closing. And I reject Vialpando’s assertion

  that the prosecution’s rhetorical questions, referencing her defense

  theory, misstated the evidence. Rather, it was mere oratorical

  embellishment, see id., where the prosecutor was free to comment

  on the strength of Vialpando’s defense theory. See Serra, ¶ 88;

  Estes, ¶ 28. Nor did the prosecutor misstate the evidence when he

  stated that Vialpando denied her prior trespass conviction.

  Vialpando acknowledged that such a conviction was “possible,” but


                                    60
  she also testified that she did not remember being convicted of

  trespass.

¶ 137   Given the wide latitude granted prosecutors during closing,

  see Domingo-Gomez, 125 P.3d at 1048; Perea, 126 P.3d at 247, the

  benefit of the doubt afforded them when their comments are

  ambiguous, see Samson, ¶ 30, and the fact that the jury was

  repeatedly instructed that closing arguments were not evidence, I

  cannot conclude that the prosecutor misstated the evidence.

                       II.   Lay Witness Testimony

¶ 138   Vialpando next contends that the trial court reversibly erred

  by admitting lay witness testimony from Thornton Police Officer

  John Milstead that Vialpando was the primary suspect, thereby

  usurping the jury’s role to decide whether Vialpando was guilty of

  the charged crimes. I disagree.

                       A.    Additional Background

¶ 139   At trial, Milstead testified as a lay witness for the prosecution.

  In discussing Vialpando’s arrest, the following colloquy occurred:

              [Prosecutor]: Based on all of the information
              that you had received, Officer, the hard
              evidence that you collected and the witness
              statements that you had received, did you



                                     61
             identify the person who — that you believed
             had committed this offense?

             [Milstead]: Based on the facts, yes.

             [Prosecutor]: And who is that person?

             [Milstead]: The defendant.

¶ 140   Defense counsel objected, arguing such a response invaded

  the province of the jury, and the court sustained the objection. The

  prosecutor then asked Milstead whether he had identified “a

  primary suspect,” to which he replied that he had and identified

  Vialpando. Defense counsel did not object.

                B.   Preservation and Standard of Review

¶ 141   We review a trial court’s decision to admit testimony for an

  abuse of discretion. People v. Robles-Sierra, 2018 COA 28, ¶ 23.

  An abuse of discretion occurs when a trial court’s ruling is

  manifestly arbitrary, unreasonable, or unfair, or if it misapplies the

  law. People v. Casias, 2012 COA 117, ¶ 29.

¶ 142   Because Vialpando did not preserve this issue for appeal, I

  apply plain error review. Hagos, ¶ 14. Thus, reversal is warranted

  only if any error was obvious and substantial, meaning the error so

  undermined the fundamental fairness of the trial itself as to cast

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

                                    62
                          C.   Law and Analysis

¶ 143   CRE 701 governs the admission of lay witness testimony and

  provides that testimony is proper if it is “(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.”

¶ 144   A testifying witness may not usurp the jury’s factfinding role.

  Robles-Sierra, ¶ 24. However, CRE 704 provides that opinion

  testimony that is “otherwise admissible is not objectionable because

  it embraces an ultimate issue to be decided by the trier of fact.” In

  determining whether witness testimony usurped the function of the

  jury, it is useful to consider whether (1) the witness opined that the

  defendant committed or likely committed the crime; (2) the

  testimony was clarified on cross-examination; (3) the expert’s

  testimony usurped the trial court’s function by expressing an

  opinion on the applicable law or legal standard; and (4) the jury was

  properly instructed on the law and that it could accept or reject the

  witness’ opinion. People v. Rector, 248 P.3d 1196, 1203 (Colo.

  2011). Further, while a witness cannot testify as to his belief that


                                     63
  the defendant committed the charged crime, “police officers may

  testify about the reasons they took certain investigative steps, even

  where this testimony touches upon prohibited subjects.” People v.

  Penn, 2016 CO 32, ¶¶ 31-32.

¶ 145   Vialpando argues that Milstead’s testimony that she was the

  primary suspect demonstrated his belief that she was guilty of the

  charged crimes, improperly usurping the jury’s function. I disagree

  with the majority that the effect of Milstead’s testimony identifying

  Vialpando as a suspect could only have been an improper one.

¶ 146   Milstead’s statement responded to the prosecutor’s question

  regarding the then subject of the investigation. See id. It is not

  clear that the officer’s testimony amounted to an opinion that

  Vialpando was guilty of the charged crimes as opposed to explaining

  the course of his investigation. See id. at ¶¶ 29, 33 (holding that an

  officer’s statement that he had “reason to arrest” the defendant

  merely “provided context for his action and simply explained . . . the

  next step in his investigation”).

¶ 147   Nor can I conclude that Milstead’s testimony amounted to

  plain error. See Hagos, ¶ 14. The prosecutor did not dwell on his

  statement, nor did either party revisit this testimony during closing


                                      64
  argument. See Penn, ¶ 33. Further, Vialpando’s counsel had the

  opportunity to clarify Milstead’s testimony on cross-examination

  when, through questioning, the officer admitted that R.H. was not

  one hundred percent certain regarding her identification and that a

  witness told police that the man exiting J.A.’s stolen vehicle may

  have been the driver. And, the jury was properly instructed that it

  was not bound by the testimony of witnesses but could believe all,

  part, or none of their testimony. See Rector, 248 P.3d at 1203

  (holding that an expert’s testimony on an ultimate issue did not

  constitute plain error where “the jury was properly instructed on

  the law and its ability to accept or reject the expert witness

  testimony”); People v. Rivera, 56 P.3d 1155, 1164 (Colo. App. 2002)

  (Even if a “witness opines with respect to an ultimate issue, the jury

  retains its authority to determine the facts from the evidence and

  accept or reject such opinions.”).

                         III.   Cumulative Error

¶ 148   Vialpando last argues that the asserted errors, when analyzed

  in the aggregate, require reversal because they undermined the

  fundamental fairness of the proceedings. I disagree.




                                       65
¶ 149   Under the doctrine of cumulative error, reversal is required

  when numerous errors “collectively prejudice the substantial rights

  of the defendant.” Howard-Walker v. People, 2019 CO 69, ¶ 25. A

  conviction will not be reversed unless the cumulative effect of any

  errors created “cumulative prejudice” and “substantially affected

  the fairness of the trial proceedings and the integrity of the fact-

  finding process.” Id. at ¶¶ 24-25 (citation omitted).

¶ 150   I have found no errors save for the court allowing the

  prosecutor’s reasonable doubt voir dire illustration, the prosecutor’s

  brief statement during opening remarks about Vialpando’s guilt,

  and the prosecutor cross-examining Vialpando as to whether other

  witnesses were mistaken. Even considered in the aggregate, the

  prosecutor’s misconduct here does not rise to the level of plain

  error. See Domingo-Gomez, 125 P.3d at 1054 (holding that no plain

  error occurred where the prosecutor stated that “defense witnesses

  lied and made up their stories” and defense counsel failed to make

  a contemporaneous objection); People v. Ujaama, 2012 COA 36,

  ¶¶ 73-74 (holding that the prosecutor’s statement during closing

  did not constitute plain error where he undermined defendant’s

  presumption of innocence and improperly gave his personal opinion


                                     66
  on the case by stating that the defendant had “shattered his

  presumption of innocence,” and that the “only way to obtain justice

  in this courtroom, to seek what [the jury] . . . sought when [it] took

  that oath as jurors, is to find [defendant] guilty of the murder that

  he committed”) (alterations in original).

¶ 151   Because (1) the prosecutor’s misconduct does not carry

  different weight under a cumulative error analysis; (2) the

  misconduct was not overly prejudicial; and (3) the evidence against

  Vialpando was strong — R.H. gave eyewitness testimony and

  Vialpando’s belongings were found in J.A.’s stolen vehicle — I

  conclude that Vialpando was not deprived of a fair trial. Cf.

  Nardine, ¶ 68 (holding that the prosecutor’s misconduct warranted

  reversal because it was “particularly prejudicial” in a case that

  “depended almost entirely on the jurors’ assessment of [the victim’s]

  credibility, as there was no eyewitness or physical evidence to

  corroborate her claims”); Walters, 148 P.3d at 335 (Prosecutorial

  misconduct rarely requires reversal but may be warranted “when

  the evidence against a defendant is conflicting and inconclusive and

  the prosecutor continually appeals to the jurors’ sentiments.”).




                                    67
                             IV.   Conclusion

¶ 152   For all of the foregoing reasons, I would affirm the judgment of

  conviction.




                                    68
