COLORADO COURT OF APPEALS                                     2017COA81


Court of Appeals No. 14CA0562
El Paso County District Court No. 13CR3349
Honorable Thomas K. Kane, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kyree Davon Howard-Walker,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division II
                         Opinion by JUDGE BERGER
                        Dailey and J. Jones, JJ., concur

                          Announced June 15, 2017


Cynthia H. Coffman, Attorney General, Matthew S. Holman, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, M. Shelby Deeney, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    A jury convicted defendant, Kyree Davon Howard-Walker, of

 first degree burglary and conspiracy to commit first degree burglary.

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

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

 allegedly discriminatory peremptory strikes; (2) admitting allegedly

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

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

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

 misconduct and that that the cumulative effect of these errors

 requires reversal.

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

 resulting from prosecutorial overreach and one instance of

 prosecutorial misconduct. Howard-Walker’s counsel objected to

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

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

 themselves, requires reversal. Moreover, these errors did not

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

 thus do not require reversal under the cumulative error doctrine.

 Therefore, we affirm the judgment.




                                    1
               I. Relevant Facts and Procedural History

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

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

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

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

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

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

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

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

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

 bedroom. Both of the men were wearing baseball caps and

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

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

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

 reported the burglary to the police.

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

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

 evidence. Near the broken window, the officer discovered footprints

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

 and took photographs of the footprints. Consistent with the police


                                   2
 department’s policy for “cold” burglaries, no crime scene

 technicians were called to the scene.

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

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

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

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

 Some of the media outlets played the video on local television

 stations and advertised the reward.

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

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

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

 committing the burglary, he recognized the hat and sunglasses that

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

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

 and sunglasses.

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

 Detective Mark Garcia, contacted Howard-Walker’s probation

 officer. He showed the probation officer several still photos derived

 from the surveillance video and asked if he recognized Howard-




                                   3
  Walker. The probation officer said that he was “ninety-five percent

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

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

  interviewed him after advising him of his Miranda rights.

  Howard-Walker consistently denied that he committed the burglary.

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

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

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

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

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

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

  refused to speak further with the police.

¶ 10   Detective Garcia then searched (under a warrant)

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

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

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

  from the surveillance video and asked if she recognized the person

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

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

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


                                     4
  and then recanted, that statement, claiming that Detective Garcia

  had intimidated her into identifying Howard-Walker.

¶ 11   Detective Garcia also compared the photographs of the

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

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

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

¶ 12   The prosecution charged Howard-Walker with first degree

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

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

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

  the burglary and that the witnesses had misidentified him from the

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

  charged, necessarily rejecting his misidentification defense. The

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

  Department of Corrections.

                         II. Batson Challenges

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

  denied his Batson challenges to the prosecutor’s peremptory strikes

  excusing three prospective jurors — one who identified himself as

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


                                    5
  Specifically, he challenges the trial court’s rulings on the third

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

  reasons for removing the jurors were not worthy of belief.

                          A. Standard of Review

¶ 15   The United States and Colorado Constitutions prohibit

  peremptory strikes to dismiss prospective jurors on the basis of

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

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

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

  evaluate claims of purposeful discrimination in jury selection.

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

  prima facie showing that the prosecutor used a peremptory strike to

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

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


  1 While Batson v. Kentucky, 476 U.S. 79 (1986), refers only to race
  as an impermissible discriminatory factor, its progeny also includes
  gender and ethnicity within Batson’s proscription. See, e.g., People
  v. Lucero, 2014 COA 53. Whereas “African-American” typically
  describes a person’s race, the term “Hispanic” is used sometimes to
  describe a person’s race and other times to describe a person’s
  ethnicity. Because it is equally impermissible to discriminate based
  on race and ethnicity, we apply those cases discussing race to the
  challenges of the two jurors who identified themselves as Hispanic.
  See, e.g., Hernandez v. New York, 500 U.S. 352, 355 (1991).

                                     6
  that the challenger “present evidence sufficient to raise an inference

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

  (Colo. 1998).

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

  the burden shifts to the prosecutor to articulate a non-

  discriminatory reason for the strike. Id.

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

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

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

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

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

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

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

  burden of persuasion regarding [discriminatory] motivation rests

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

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

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

  reasons are sufficiently incredible that the discriminatory

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




                                      7
¶ 19   We review de novo whether the parties have met their

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

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

  determination of whether the prosecutor’s strike was motivated by

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

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

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

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

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

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

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

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

  not motivated by discriminatory animus is justified only under

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

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

                 B. Analysis of the Peremptory Strikes

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

                        1. Female Hispanic Juror

¶ 21   The prosecutor exercised a peremptory strike against a female

  juror who identified herself as Hispanic on her jury questionnaire.


                                     8
  This met Howard-Walker’s minimal step one Batson burden. In

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

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

  Because the significance of the juror having filled out the

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

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

  the record resulted from a transcription error. The prosecutor also

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

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

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

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

  characterization of what was said in the questionnaire. The court

  further explained that it had observed the female juror during voir

  dire and that she “seemed disinterested.”

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

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

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

  failure to weigh the evidence.

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

  whether the objecting party proved that the striking party exercised


                                    9
  its peremptory challenges with “discriminatory animus” is “an

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

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

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

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

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

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

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

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

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

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

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

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

  who had not been directly questioned because both jurors “looked

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

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

  the juror’s level of interest in the proceedings.

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

  committed legal error in considering that the female Hispanic juror

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


                                     10
  Batson does not require that the excluded juror share the same

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

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

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

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

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

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

  races of the juror and Howard-Walker.

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

  findings with respect to the female Hispanic juror are supported by

  the record.

                     2. African-American Male Juror

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

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

  defense counsel characterized as “completely white.”

  Howard-Walker continued exercising his peremptory strikes, which

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

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

  prosecutor then exercised one of its remaining peremptory strikes

  against that juror.


                                      11
¶ 28   In response to Howard-Walker’s Batson challenge, the

  prosecutor explained that the prospective juror “seemed

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

  said that police officers often misidentify suspects and he indicated

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

  experience” with law enforcement. Howard-Walker attempted to

  rebut this explanation by noting that some unchallenged white

  jurors had expressed similar opinions about police misidentification

  and also reported negative experiences with the police.

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

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

  juror apparently believed that law enforcement officers often make

  mistakes.

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

  white juror who had discussed his negative views of police officers

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

  expressed that the police sometimes make mistakes in identifying

  suspects demonstrated that the prosecutor’s reasons for the strike

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




                                   12
  jurors, who, but for their race, have similar and allegedly

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

¶ 31   The Colorado Supreme Court in Beauvais recently clarified the

  required procedure for a Batson comparative juror analysis. While

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

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

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

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

  potential juror because she is unemployed and lacks a college

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

  college degree would not be similarly situated and not suitable for

  comparison.” Id. at ¶ 57.

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

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

  sometimes make mistakes in identifying suspects. But none of

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

  experience” with law enforcement. Moreover, the record

  demonstrates that these jurors’ statements were more limited in

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

  were broader and less deferential to the police, particularly in


                                    13
  regard to identification of a suspect in a photograph or video. For

  instance, while one of the other jurors said that misidentification

  sometimes happens, she also said that misidentification might

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

  similarly said that misidentification might occur due to any number

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

  another asserted that misidentification could occur based on a

  video or photograph if either of those mediums lacked clarity.

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

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

  video than anyone else, and that misidentification may occur unless

  the photograph or video was completely clear.

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

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

  assessment that the African-American juror seemed

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

  Additionally, we note that the prosecutor exercised a peremptory

  strike against a white juror who had similarly expressed that

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

  else.”


                                    14
¶ 35   Howard-Walker also asserts the prosecutor’s reasons for

  exercising a peremptory strike against the prospective juror were

  pretextual because, although the juror indicated on his jury

  questionnaire that he had had a negative experience with law

  enforcement, no strikes were exercised against white jurors who

  had also indicated negative experiences with law enforcement on

  their questionnaires. We reject this argument because there is no

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

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

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

  both a negative experience with law enforcement and a belief that

  police officers sometimes misidentify suspects; thus, no other juror

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

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

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

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

  court concluded that Howard-Walker had not proved purposeful

  discrimination with respect to the juror because he had not

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

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


                                     15
  discrimination,” but is not “a necessary predicate to a [Batson]

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

  Batson step three determination on whether Howard-Walker had

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

  that the juror believed that police officers frequently misidentified

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

  dispute that the juror expressed that police officers may misidentify

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

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

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

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

  that juror were credible.

                         3. Male Hispanic Juror

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

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

  panel. The prosecutor exercised his final peremptory strike against

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

  prosecutor explained that the juror had reported a bad experience

  with law enforcement on his jury questionnaire, had faced a

  criminal conviction on charges brought by the same district


                                    16
  attorney’s office, and had indicated in his responses to voir dire

  questions that he had a negative view of law enforcement.

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

  race-neutral explanation for the strike, asserting that the

  prosecutor’s peremptory strikes had shown a pattern of excusing

  “minorities” and that white jurors who had disclosed similar

  experiences and views regarding the police had not been stricken.

  The trial court denied the Batson challenge, noting that the

  prospective juror “was quite reluctant and critical of law

  enforcement generally.”

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

  questionnaire that he had had a particularly bad experience with

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

  his experiences were significantly different from that of the

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

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

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

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

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




                                    17
  negative perceptions aside. The state patrol was not involved in

  Howard-Walker’s case.

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

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

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

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

  questioning either by the court or defense counsel that would

  demonstrate that the juror could set aside his negative impressions

  of the police.

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

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

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

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

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

  nevertheless denied the Batson challenge based on the juror’s

  criticisms of law enforcement.

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

  Batson findings are supported by the record, and we reject

  Howard-Walker’s claims to the contrary.




                                    18
                III. Allegedly Improper Police Testimony2

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

  portions of Detective Garcia’s testimony constituted reversible error.

                          A. Standard of Review

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

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

  review nonconstitutional trial errors that were preserved by

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

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

  influenced the verdict or affected the fairness of the trial

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

  1986)).



  2 We observe that the defendant’s selection of small portions of two
  long days of trial testimony has an effect on the reader that is quite
  different than the effect when reading the entire trial transcript.
  When read in its entirety, the trial transcript portrays an engaged
  trial court. None of the testimony objected to for the first time on
  appeal was set off by any particular circumstances from the rest of
  the non-objected testimony. It is very easy for an appellate court to
  read a cold transcript and conclude that certain unobjected
  testimony should not have been admitted. The trial court might
  well come to the same conclusion if the court had the luxury of
  reading a transcript. But that luxury is not available to the trial
  court and that is one good reason why the standard for plain error
  is so high.

                                     19
¶ 45   When a defendant fails to object to the admission of evidence

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

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

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

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

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

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

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

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

  on the reliability of the conviction.” Id.

                    B. Testimony that the Handgun in
                    the Surveillance Video Was “Real”

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

  witness. Therefore, his opinion testimony was limited to his

  rationally based perceptions that were helpful to the jury in

  understanding the testimony or determining a fact in issue. CRE

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

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

  noted above, showed one of the perpetrators holding what appeared

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



                                     20
  you tell that’s a real handgun?” Detective Garcia answered, without

  objection by Howard-Walker, as follows:

              Well, one of the things that would make it real
              is a size of the barrel. It’s a large barrel. Air
              soft guns [sic] their muzzles have a red tip and
              small barrel for the little air soft pellet to come
              out. This is an open barrel. That’s a large
              barrel for a large projectile to exit the weapon.

¶ 48     Howard-Walker argues that this was improper expert

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

  conclude that, under the circumstances, this testimony did not

  constitute plain error.

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

  that

              [i]f the witness is not testifying as an expert,
              the witness’ testimony in the form of opinions
              or inferences is limited to those opinions or
              inferences which are (a) rationally based on the
              perception of the witness, (b) helpful to a clear
              understanding of the witness’ testimony or the
              determination of a fact in issue, and (c) not
              based on scientific, technical, or other
              specialized knowledge within the scope of Rule
              702.

  (Emphasis added.)

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

  Colorado Supreme Court clarified the standard that distinguishes


                                      21
  lay testimony from expert testimony. Marsh v. People, 2017 CO

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

             If the witness provides testimony that could be
             expected to be based on an ordinary person’s
             experiences or knowledge, then the witness is
             offering lay testimony. If, on the other hand,
             the witness provides testimony that could not
             be offered without specialized experiences,
             knowledge, or training, then the witness is
             offering expert testimony.

  Venalonzo, ¶ 2.

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

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

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

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

  based on their perceptions and experiences, officer lay testimony is

  objectionable when it requires the application of or reliance on

  specialized skills or training. Venalonzo, ¶ 19.

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

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

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

  his testimony crossed the expert line when he essentially

  reconstructed the accident by deducing matters such as the



                                    22
  vehicle’s direction, position, and speed. 55 P.3d at 124. Similarly,

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

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

  an ordinary citizen might know that Sudafed contains an ingredient

  that can be used to manufacture methamphetamine, the lay

  witness officer’s testimony that he suspected the defendant was

  manufacturing based on the amount of Sudafed in his possession

  constituted expert testimony because an ordinary citizen would

  probably not know how much Sudafed would be required for that

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

  supreme court held that an ordinary citizen could not be expected

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

¶ 53   Applying Venalonzo, we strongly doubt that ordinary citizens

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

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

  expertise beyond the ken of the ordinary citizen, and such

  testimony constituted expert testimony under CRE 702.

¶ 54   While this evidence was improperly admitted as lay opinion

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

  the latest supreme court formulation of the distinction between lay


                                    23
  and expert testimony was not decided until more than a year after

  Howard-Walker’s trial.

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

  distinction between lay and expert testimony with respect to

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

  error to be obvious, the action challenged on appeal must

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

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

  necessarily follows that any error in the admission of this brief

  testimony was not obvious and thus was not plain error.

  C. The Detective’s Testimony that the Perpetrator Would Have Used
           the Gun if He Had Encountered the Homeowner

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

  handgun being used during the burglary?” Detective Garcia

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

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

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

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

  the perpetrator regarding an event that never occurred was nothing

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



                                    24
¶ 57   Detective Garcia continued, saying:

            [The gun] is being openly displayed with the
            hand and the finger on the trigger ready to be
            utilized. Individuals going through the room
            with the gun out in a manner to me the way I
            see it is as a threatening manner whether to
            engage if a homeowner or engage by officers
            that that person is ready [sic]. If he did not
            intend it, I don’t believe the weapon would be
            presented in that manner, scanning the room
            as he is doing so as in the video.

¶ 58   Howard-Walker argues that this testimony was inadmissible

  because Detective Garcia had no personal knowledge about what

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

  encountered the homeowner and thus he was improperly

  speculating. We agree.

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

  motivation or intent only if the witness had sufficient opportunity to

  observe the person and to draw a rational conclusion about the

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

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

  speculative and therefore inadmissible. Id. Detective Garcia was

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

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



                                    25
  rational conclusion about what the perpetrator would have done

  had he encountered the homeowner or the police.

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

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

  principles of relevancy and under CRE 403. What might have

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

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

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

  was immaterial whether the perpetrator might have committed an

  additional crime had he encountered the homeowner or the police.

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

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

  had the perpetrators encountered the homeowner or the police, that

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

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

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

  that Detective Garcia testified about such an immaterial (but easily

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

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

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


                                    26
       D. The Detective’s Identification of Howard-Walker in the Video

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

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

  of the perpetrators in the video.

¶ 63     Howard-Walker argues that because Detective Garcia testified

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

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

  improper expert testimony. He also argues that the identification

  invaded the province of the jury and was substantially more

  prejudicial than probative. Following precedents from the supreme

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

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

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

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

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

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

  case here.

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

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

  nevertheless was in a better position than the jury to identify


                                      27
  Howard-Walker as one of the perpetrators in the video because he

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

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

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

  during the police interview, making Detective Garcia’s testimony

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

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

  perception was somehow tainted by the fact that he only met

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

  testimony, not its admissibility. No specialized knowledge is

  required to recognize an individual in a video.

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

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

  testimony may have been detrimental to Howard-Walker did not

  render that testimony unfairly prejudicial. Kelly v.

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

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

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

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

  admission of this testimony.


                                     28
        E. The Detective’s Testimony Regarding Probable Cause

¶ 67   The prosecutor asked Detective Garcia to describe his

  investigation. In a lengthy, narrative response, the detective

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

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

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

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

  testimony, he nevertheless argues on appeal that the trial court

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

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

  improper to present to the jury evidence about obtaining an arrest

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

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

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

  under most circumstances, irrelevant to determining whether the

  prosecution proved the commission of a crime beyond a reasonable

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

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

  should not have been admitted.




                                   29
¶ 69   Under some circumstances, police officers may testify about

  why they took certain investigative steps, even when this testimony

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

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

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

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

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

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

  testimony was relevant to the prosecutor’s explanation of the

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

  not need to describe the search and arrest warrants process to

  explain the investigation; thus, his testimony on those matters

  should not have been admitted.

¶ 70   However, because under some circumstances testimony

  regarding probable cause is admissible, and because Detective

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

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

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




                                     30
                F. Testimony Regarding the Girlfriend’s
                Reaction to Identifying Howard-Walker

¶ 71   Detective Garcia testified that when he interviewed

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

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

  surveillance video. He further testified that she “was getting

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

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

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

  prosecutor asked Detective Garcia why he thought the girlfriend

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

  mind that the detective was neither competent to undertake or to

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

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

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

¶ 72   Howard-Walker asserts that this testimony was improper

  because Detective Garcia had no personal knowledge, as required

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

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




                                    31
  admission of this evidence was erroneous, but did not constitute

  plain error.

¶ 73   Questions regarding the girlfriend’s initial identification of

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

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

  had extensive information to make its judgment on that issue.

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

  girlfriend was crying (again, another reason why this evidence

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

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

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

  Conyac, ¶ 54.

       G. The Detective’s Testimony Regarding Howard-Walker’s
       Statement About Possibly Identifying the Other Perpetrator

¶ 74   Detective Garcia testified that when he interviewed

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

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

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

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




                                    32
  [Howard-Walker] was involved and knows who the other person was

  that committed the burglary.”

¶ 75   Howard-Walker argues that this testimony was improper

  because it constituted an impermissible opinion on his guilt. A

  witness may not testify that he believes that the defendant

  committed the crime at issue. Penn, ¶ 31.

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

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

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

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

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

  fundamental fairness of the trial. Conyac, ¶ 54.

   H. Testimony About Whether Howard-Walker was Being Truthful

¶ 77   The prosecutor asked Detective Garcia whether he felt that

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

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

  Howard-Walker did not object to this testimony.

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

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

  Though a detective may testify about his assessment of an


                                   33
  interviewee’s credibility when that testimony is offered to provide

  context for the detective’s interrogation tactics and investigative

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

  for those purposes and was therefore improper.

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

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

  to support Howard-Walker’s convictions without relying on

  Detective Garcia’s improper testimony. Multiple witnesses

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

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

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

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

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

  Thus, Howard-Walker has not shown that that testimony

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

  Conyac, ¶ 54.

                      IV. Prosecutorial Misconduct

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

  three instances of reversible misconduct.




                                    34
¶ 81   We engage in a two-step analysis to review claims of

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

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

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

  Second, we decide whether any misconduct warrants reversal

  according to the proper standard of review. Id.

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

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

               A. Confronting the Girlfriend About Perjury

¶ 83   The girlfriend testified that she did not remember telling

  Detective Garcia that she had recognized Howard-Walker in the

  video. She and the prosecutor then engaged in the following

  colloquy:

              Q. All right. Now, you understand that today
              you have been sworn in under oath, right?

              A. Right.

              Q. And you understand how perjury works,
              right?

              A. Right.

              Q. You realize you have been sworn to tell the
              truth, the whole truth, and nothing but the
              truth?


                                    35
             A. Yes, I do.

             Q. And you understand that perjury is not
             telling the truth in court?

             A. Right.

             Q. And so it’s your testimony today that you
             did not identify anyone from that videotape?

             A. Right, no.

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

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

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

  permissible line in repeatedly suggesting that the girlfriend was

  committing perjury, because the prosecutor did not threaten,

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

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

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

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

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

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

  first, continued to assert that she had never identified

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

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


                                     36
  that she had told Detective Garcia that she had recognized

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

  because Detective Garcia had allegedly pressured or intimidated

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

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

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

  plain error.

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

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

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

  credible witness.”

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

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

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

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

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

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

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

  statements did exactly that and were not improper.




                                    37
¶ 88   As the prosecutor pointed out in closing argument, the

  girlfriend’s testimony conflicted with that of Detective Garcia.

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

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

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

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

  prosecutor fairly characterized this testimony as confusing and “all

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

  supported a reasonable inference that the girlfriend’s testimony was

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

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

¶ 89   The Fifth Amendment forbids comment by the prosecution on

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

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

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

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

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

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

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

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


                                     38
  location of the fruits of the burglary was Howard-Walker and “he

  won’t [testify].” We view this statement as a reference to Howard-

  Walker’s decision not to testify. U.S. Const. amend. V; Colo. Const.

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

  (1975).

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

  been admitted over objection, we would review for constitutional

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

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

  this standard, only prosecutorial misconduct which is “flagrantly,

  glaringly, or tremendously improper” warrants reversal.

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

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

  nevertheless conclude that the comment did not amount to plain

  error, for two reasons.

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

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

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

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




                                   39
¶ 94   Second, the jury was correctly instructed, several times, that

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

  adverse inference from his exercise of that right was permissible.

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

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

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

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

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

  heed this instruction.

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

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

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

  fairness of the trial, Conyac, ¶ 54.

                  V. Adequacy of the Jury Instructions

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

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

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

  concur that the jury instructions were deficient because they failed

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

  that the error was not reversible.


                                       40
¶ 97    “We review jury instructions de novo to determine whether

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

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

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

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

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

  can say with fair assurance that the error so undermined the

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

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

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

¶ 98    The United States and Colorado Constitutions require the

  prosecution to prove every element of the charged offense beyond a

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

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

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

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

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

  crime.” Ridgeway, ¶ 12.

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

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


                                     41
           the defendant;

           knowingly entered unlawfully, or remained unlawfully

             after a lawful or unlawful entry;

           in a building or occupied structure;

           with intent to commit therein a crime, other than

             trespass;

           against another person or property; and

           the defendant used a deadly weapon or possessed and

             threatened the use of a deadly weapon in effecting the

             burglary.

  § 18-4-202(1).

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

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

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

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

  counsel approved it.3 When the elemental instructional error


  3 Because Howard-Walker’s counsel affirmatively approved the jury
  instructions, there is an argument that Howard-Walker waived any
  instructional error. See United States v. Olano, 507 U.S. 725, 733
  (1993); People v. Rediger, 2015 COA 26, ¶ 64 (cert. granted Feb. 16,
  2016). The Attorney General does not argue that Howard-Walker
  waived the instructional error. Because we conclude for other

                                    42
  relates to an element that is not contested at trial, the failure to

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

  (Colo. 1987).

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

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

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

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

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

  counts, because the prosecution presented uncontested evidence

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

  deficiency in the instructions did not require reversal.

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

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

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

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

  that case, the prosecution presented uncontested evidence that the

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

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



  reasons that the deficient instructions do not require reversal, we
  do not address whether Howard-Walker waived the error.

                                     43
  property; he never contested the victim’s assertion that she had

  feared that she was in imminent danger of suffering serious bodily

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

  whether the defendant had placed the victim in fear of imminent

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

  instructional error did not constitute plain error. Id.

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

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

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

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

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

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

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

  commit any crime, without unanimously agreeing that he intended

  to commit any particular crime. We reject this argument.

¶ 104   The complaint and information alleged that Howard-Walker

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

  the surveillance video, which depicted a person (whom several

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

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


                                     44
  by the surveillance video was any crime other than theft, nor did he

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

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

  underlying crime could have been committed, other than theft.

¶ 105   Moreover, during both opening statement and closing

  argument the prosecutor asserted that Howard-Walker broke into

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

  demonstrates that the specification of the underlying crime was not

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

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

  735 P.2d at 203.

                                B. Intent

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

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

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

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

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

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

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

  defendant of burglary and conspiracy to commit burglary, the jury


                                    45
  must conclude beyond a reasonable doubt that the defendant’s

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

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

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

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

  P.3d at 7 (citation omitted).

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

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

  whether the evidence showed that the person in the video acted

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

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

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

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

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

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

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

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

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

  544.




                                       46
                          VI. Cumulative Error

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

  the trial court’s errors and prosecutorial misconduct violated his

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

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

  one instance of prosecutorial misconduct, and two instructional

  errors, we ultimately conclude that these errors, viewed

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

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

  2009).

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

  preserved error (reviewed for harmless error) and several

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

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

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

  during the burglary. The unpreserved errors were the deficient jury

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

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

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

  the police interview, and whether Howard-Walker was being


                                    47
  “truthful” during the police interview); and one instance of

  prosecutorial misconduct.

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

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

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

  was cumulative error warranting reversal. There, the Tenth Circuit

  held as follows:

             First, the preserved errors should be
             considered as a group under harmless-error
             review. If, cumulatively, they are not
             harmless, reversal is required. If, however,
             they are cumulatively harmless, the court
             should consider whether those preserved
             errors, when considered in conjunction with
             the unpreserved errors, are sufficient to
             overcome the hurdles necessary to establish
             plain error. In other words, the prejudice from
             the unpreserved error is examined in light of
             any preserved error that may have occurred.

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

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

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

  constituted plain error.

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

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



                                    48
  aggregate show the absence of a fair trial.” Munsey, 232 P.3d at

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

  446 (1962)).

¶ 113   Few Colorado cases provide meaningful guidance as to when

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

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

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

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

  67, 371 P.2d at 446.

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

  whether the total effect of errors warrants reversal based on a

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

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

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

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

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

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

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

  F. App’x 691, 692 (11th Cir. 2016).




                                    49
¶ 115   In Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), the

  Ninth Circuit recognized that habeas corpus relief may be granted

  when the otherwise harmless errors “amplify each other in relation

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

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

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

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

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

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

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

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

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

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

  same is true of the erroneous jury instructions and Detective

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

  gun had he encountered the homeowner or the police.

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

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

  interview, and that the girlfriend was upset because she had

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


                                    50
  undermine Howard-Walker’s misidentification defense. But each of

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

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

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

  prejudicial to Howard-Walker. People v. Rodriguez, 794 P.2d 965,

  972 (Colo. 1990) (“The lack of an objection may demonstrate

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

  appearance in a cold record, was not overly damaging.”) (citation

  omitted).

¶ 118   Even when considered cumulatively, these errors were

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

  during which substantial evidence was presented — including

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

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

  which the jury reasonably could have concluded that

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

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

  evidence of the defendant’s guilt).

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

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


                                     51
                            VII. Conclusion

¶ 120   The judgment of conviction is affirmed.

        JUDGE DAILEY and JUDGE J. JONES concur.




                                   52
