     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
                                                          November 14, 2019

                               2019COA167

No. 18CA0283, People v. Payne — Criminal Law — Trials —
Closing Arguments

     In the third issue of this opinion, a division of the court of

appeals considers whether a trial court erred by allowing a

prosecutor to waive the initial closing statement and then give a

rebuttal. Because Colorado law does not require a prosecutor to

give the initial closing statement, or necessitate that a prosecutor

waives rebuttal remarks by forgoing the initial closing, the division

concludes that a trial court does not abuse its discretion by

allowing the prosecutor to reserve her closing statement until

rebuttal absent prejudice to the defendant. Because the defendant

was not prejudiced here, the division affirms the judgment of

conviction.
COLORADO COURT OF APPEALS                                     2019COA167


Court of Appeals No. 18CA0283
Mesa County District Court No. 15CR653
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cameron Scott Payne,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division VII
                            Opinion by JUDGE FOX
                         J. Jones and Tow, JJ., concur

                        Announced November 14, 2019


Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Cameron Scott Payne, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of resisting

 arrest, disorderly conduct, and second degree assault while lawfully

 confined or in custody. Payne asserts that the trial court erred by

 (1) allowing lay witness testimony that usurped the jury’s role; (2)

 failing to provide a definitional jury instruction on “lawfully confined

 or in custody”; (3) allowing the prosecutor to give a rebuttal closing

 statement after waiving initial closing remarks; and (4) tolerating

 prosecutorial misconduct when the prosecutor misstated the law in

 rebuttal closing. Because none of Payne’s contentions of error

 warrant reversal, we affirm the judgment of conviction.

                           I.    Background

¶2    In May 2015, two Grand Junction police officers patrolling the

 downtown area heard a man screaming and cursing in the street.

 When the officers approached the man, later identified as Payne, he

 aggressively turned toward the officers and ignored their commands

 to stop. The officers placed him in handcuffs, called for backup,

 and were escorting Payne out of the street and toward their police

 car when he kicked one of the officers in the groin. A jury found


                                    1
 Payne guilty of all charges except for second degree assault, bodily

 injury on a peace officer. 1

                      II.   Lay Witness Testimony

¶3    Payne contends that the trial court reversibly erred by

 admitting lay witness testimony that he was “lawfully confined or in

 custody,” thereby usurping the jury’s role to decide whether he was

 confined or in custody. We disagree.

                      A.    Additional Background

¶4    At trial, Officer Jason Evans testified as a lay witness for the

 prosecution. In discussing Payne’s arrest, the following colloquy

 occurred:

             [Prosecutor]: Was . . . Payne, compliant when
             you instructed him to stop and then had to go
             and put handcuffs on him?

             [Officer Evans]: No, ma’am.

             [Prosecutor]: At this point did you consider
             that he was lawfully confined or in custody?

             [Officer Evans]: At that point he was not free to
             leave.




 1Payne was also charged with possession of drug paraphernalia,
 but the trial court dismissed the charge at trial because the
 prosecution presented no evidence to support it.
                                     2
           [Prosecutor]: Did you consider that he was
           lawfully confined or in custody?

           [Officer Evans]: Yes, ma’am.

              B.    Preservation and Standard of Review

¶5    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.

¶6    Because Payne did not preserve this issue for appeal, we apply

 plain error review. Hagos v. People, 2012 CO 63, ¶ 14. Thus, we

 reverse 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.

                        C.    Law and Analysis

¶7    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

                                   3
 determining whether witness testimony usurped the function of the

 jury, we may 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). Payne does not challenge the third factor.

¶8    While the second degree assault statute, section 18-3-

 203(1)(f), C.R.S. 2019, does not define “lawfully confined or in

 custody,” the terms have distinct meanings under Colorado law.

 See People v. Olinger, 39 Colo. App. 491, 493, 566 P.2d 1367, 1368

 (1977) (“It is apparent that the legislature intended the word

 ‘confined’ to have a meaning different from and to be more

 restrictive than ‘custody[.]’”). A person is confined when detained in

 an institution. Id. A person is in custody for section 18-3-203(1)(f)

 purposes when a police officer has “applied a level of physical

 control over the person being detained so as reasonably to ensure


                                   4
 that the person does not leave.” People v. Rawson, 97 P.3d 315,

 323 (Colo. App. 2004); see also People in Interest of D.S.L., 134 P.3d

 522, 525 (Colo. App. 2006) (To be deemed to be in custody under

 section 18-3-203(1)(f), “[a]ll that is required is that the ‘peace officer

 must have applied a level of physical control over the person being

 detained so as reasonably to ensure that the person does not

 leave.’” (quoting Rawson, 97 P.3d at 323)); People v. Ortega, 899

 P.2d 236, 238 (Colo. App. 1994) (concluding that a formal arrest

 was not required; handcuffing the defendant to a wall was sufficient

 to establish that he was in custody for purposes of section 18-3-

 203(1)(f)).

¶9     Payne argues that Officer Evans’ testimony that Payne was not

 free to leave and that he was “lawfully confined or in custody”

 improperly usurped the jury’s role. He asserts that allowing the

 testimony constituted reversible error because the testimony

 expressed a legal opinion, Payne’s counsel did not clarify the

 opinion on cross-examination, and the jury was never given a

 definition for “lawfully confined or in custody.”




                                     5
¶ 10   Although Payne’s counsel cross-examined Officer Evans, he

  did not clarify Officer Evans’ testimony that Payne was in custody

  after he was handcuffed. However, Officer Evans’ testimony fell

  short of stating that Payne committed second degree assault while

  lawfully confined or in custody. See Rector, 248 P.3d at 1203.

  Rather, he stated that, in his opinion, Payne was not free to leave

  and was in custody after he was handcuffed, addressing one

  element of Payne’s second degree assault charge. See CRE 704; see

  also Ortega, 899 P.2d at 238. While the jury was not given an

  instructional definition for “lawfully confined or in custody,” that

  alone does not render Officer Evans’ testimony improper, especially

  given its brevity. See 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.”). And the jurors were

  properly instructed that they were the “sole judges of the credibility

  of each witness and the weight to be given to the witness’

  testimony,” and that they were free to “believe all of the testimony of

  a witness, part of it, or none of it.” See Rector, 248 P.3d at 1203


                                     6
  (“[T]he jury was properly instructed on the law and its ability to

  accept or reject” testimony.).

¶ 11   Whether Payne was in custody for purposes of committing

  second degree assault was a factual determination for the jury to

  decide. See People v. Armstrong, 720 P.2d 165, 169 (Colo. 1986) (“It

  is for the trier of fact to determine after the evidence has been

  presented at trial whether, under the totality of the circumstances,

  [the defendant] may be guilty of . . . second degree assault[.]”).

  Officer Evans’ description of Payne’s arrest was useful for the jury

  to determine whether Payne was in custody at the time of the

  charged assault.

¶ 12   Accordingly, the trial court did not abuse its discretion by

  allowing Officer Evans’ testimony, and thus we perceive no plain

  error. See Hagos, ¶ 14; Rector, 248 P.3d at 1203.

                          III.     Jury Instruction

¶ 13   Payne next argues that the trial court erred by failing to give a

  jury instruction defining “lawfully confined or in custody.” We

  disagree.




                                       7
                      A.    Additional Background

¶ 14   Before closing arguments, the trial court instructed the jury

  on the presumption of Payne’s innocence and that the prosecution

  had to prove every element of each charged crime beyond a

  reasonable doubt. Regarding the second degree assault charge,

  lawfully confined or in custody, the trial court stated that the

  prosecution had to prove each of the following elements beyond a

  reasonable doubt:

            (1) that the Defendant, (2) in the state of
            Colorado, at or about the date and place
            charged, (3) knowingly and violently, (4) while
            lawfully confined or in custody, (5) applied
            physical force against the person of a peace
            officer engaged in the performance of his
            duties (6) and the Defendant knew or should
            have reasonably known that the victim was a
            peace officer engaged in the performance of his
            duties. 2

¶ 15   Although the jury was provided with some definitions — for

  terms such as “voluntary act” and “bodily injury” — the jury was

  not given a definition for “lawfully confined or in custody.” Payne’s


  2Section 18-3-203(1)(f), C.R.S. 2019, provides that an individual
  commits second degree assault when, while “lawfully confined or in
  custody, he . . . knowingly and violently applies physical force
  against the person of a peace officer . . . engaged in the performance
  of his or her duties[.]”
                                     8
  counsel had no objections or requests regarding the jury

  instructions.

       B.   Standard of Review, Preservation, and Applicable Law

¶ 16   We review de novo whether jury instructions accurately

  informed the jury of the relevant governing law, People v. Carbajal,

  2014 CO 60, ¶ 10, but a trial court has substantial discretion in

  formulating jury instructions if “they are correct statements of the

  law and fairly and adequately cover the issues presented,” People v.

  Nerud, 2015 COA 27, ¶ 35 (citation omitted). Thus, we review a

  trial court’s decision to give, or not to give, a particular jury

  instruction for an abuse of discretion. Day v. Johnson, 255 P.3d

  1064, 1067 (Colo. 2011).

¶ 17   The parties agree that this issue was not preserved for appeal.

  We therefore review for plain error. See Hagos, ¶ 14.

¶ 18   A definitional instruction is not required for a term or phrase

  familiar to a reasonable person of common intelligence, especially

  when the term’s “meaning is not so technical or mysterious as to

  create confusion in jurors’ minds.” People v. Thoro Prods. Co., 45

  P.3d 737, 745 (Colo. App. 2001), aff’d, 70 P.3d 1188 (Colo. 2003).


                                      9
  When a jury indicates no confusion about the meaning of a

  statutory term, the trial court’s failure to issue such a definition

  does not require a new trial. People v. Esparza-Treto, 282 P.3d 471,

  480 (Colo. App. 2011).

                               C.    Analysis

¶ 19   Payne argues that the trial court reversibly erred by failing to

  instruct the jury on the meaning of “lawfully confined or in custody”

  because the terms have technical, specific legal meanings that the

  jury could not have understood without such an instruction.

¶ 20   The instructions the trial court gave matched Colorado’s model

  criminal jury instruction for second degree assault, lawfully

  confined or in custody. See COLJI-Crim. 3-2:13 (2018); see also

  People v. Rester, 36 P.3d 98, 102 (Colo. App. 2001) (“Pattern jury

  instructions . . . are intended as guidelines . . . [that] carry weight

  and should be considered by a trial court[.]”). We agree with Payne

  that using model instructions does not always ensure that the trial

  court avoided plain error. See Garcia v. People, 2019 CO 64, ¶ 23

  (recognizing that a jury instruction that tracked the model

  instruction wasn’t enough to avoid plain error). But here, we


                                     10
  cannot conclude that the trial court abused its discretion by failing

  to sua sponte provide a definitional jury instruction on confinement

  and custody when the terms are not defined by statute and neither

  Payne nor the jury requested such a definitional instruction.

¶ 21   Confinement and custody, for section 18-3-203(1)(f) purposes,

  lack a statutory definition. See Thoro Prods. Co., 45 P.3d at 745;

  see also People v. Harper, 205 P.3d 452, 456 (Colo. App. 2008)

  (holding that the trial court did not commit plain error by failing to

  define a statutory phrase, and instead instructing the jury to refer

  to the term’s common meaning after the jury requested a definition,

  because there was “no special statutory definition” of the phrase).

  In fact, Colorado’s model criminal jury instructions note that

  because custody and confinement have no statutory definition, a

  trial court retains its discretion to draft a supplemental definitional

  instruction. See COLJI-Crim. 3-2:13 cmt. 3 (“[A] court exercising

  its discretion to draft a supplemental definitional instruction should

  refer to precedent, which makes clear that the phrase ‘while

  lawfully confined or in custody’ encompasses confinements that

  occur in facilities, as well as custodial situations that take place in


                                     11
  the field.”); see also People v. Marquez-Lopez, 952 P.2d 788, 789-90

  (Colo. App. 1997) (rejecting defendant’s contention that section 18-

  3-203(1)(f) could not apply to him “because he was neither confined

  in an institution nor placed under arrest for a crime prior to the

  assault”). Moreover, the jury never expressed confusion about the

  meanings of confinement or custody. See Esparza-Treto, 282 P.3d

  at 480; cf. People v. Atkins, 885 P.2d 243, 245 (Colo. App. 1994)

  (holding that the trial court abused its discretion by failing to define

  custody and confinement, as used in section 18-8-208, C.R.S.

  2019, the escape statute, after the jury requested a definition,

  because the terms have specific meanings, but concluding that its

  failure to provide the requested instruction was not plain error).

  But see People v. Thornton, 929 P.2d 729, 734 (Colo. 1996)

  (disapproving of Atkins’ holding that the definition of “custody” from

  section 16-1-104(9), C.R.S. 2019, also defines “custody” as used in

  the escape statute).

¶ 22   From the evidence presented and the instructions given at

  trial, the jury was aware that whether Payne was in custody was a

  key element the prosecution had to prove. The jury was told the


                                     12
  necessary elements that the prosecution was required to prove

  beyond a reasonable doubt. See People v. Hayward, 55 P.3d 803,

  805 (Colo. App. 2002) (“Jury instructions framed in the language of

  statutes are generally adequate and proper.”); see also People v.

  Reed, 2013 COA 113, ¶ 28 (“We presume the jury followed the

  court’s instructions.”). And the jurors were instructed that they

  were free to believe or disregard witness testimony, because

  whether Payne was “lawfully confined or in custody” was a fact

  issue for their determination. See Armstrong, 720 P.2d at 169; see

  also Day, 255 P.3d at 1072 (“It is unnecessary to give an instruction

  that is encompassed in other instructions given by the court.”

  (quoting People v. Phillips, 91 P.3d 476, 483 (Colo. App. 2004)));

  Harper, 205 P.3d at 456 (recognizing that a trial court should not

  give additional instructions for “factual matters that the jury alone

  could resolve”).

¶ 23   Thus, we conclude that the trial court did not abuse its

  discretion when it did not offer, sua sponte, a supplemental

  definitional instruction for “lawfully confined or in custody.” See

  Day, 255 P.3d at 1067.


                                    13
                           IV.   Rebuttal Closing

¶ 24   Payne next argues that the trial court reversibly erred by

  allowing the prosecution to waive its initial closing statement and

  then give a rebuttal closing argument. We disagree.

                      A.     Additional Background

¶ 25   After the trial court instructed the jury, the prosecutor

  informed the trial court that she would reserve her closing

  argument time for rebuttal. Payne’s counsel did not object and gave

  his closing statement, arguing that Payne was innocent of the two

  second degree assault charges because (1) he was unable to form

  the required intent for second degree assault, bodily injury on a

  peace officer, as he was intoxicated; and (2) he was neither confined

  nor in custody when he kicked Officer Evans. Regarding the second

  degree assault charge, lawfully confined or in custody, Payne’s

  counsel argued that Payne was not confined because he was not in

  jail. And while Payne was in handcuffs, his counsel argued that

  Payne was not yet in custody because multiple officers were needed

  to complete the arrest before he bent down and kicked Officer

  Evans.


                                     14
¶ 26   In her rebuttal closing statement, the prosecutor reminded the

  jury that “neither what [Payne’s counsel] nor I say right now is

  ultimately evidence. You decide what the evidence in this case has

  shown.”

                B.    Standard of Review and Preservation

¶ 27   Trial courts are afforded broad discretion over the presentation

  of closing arguments and in determining whether closing arguments

  are improper. People v. Brown, 218 P.3d 733, 740 (Colo. App.

  2009), aff’d, 239 P.3d 764 (Colo. 2010); see also People v. Motley,

  179 Colo. 77, 79, 498 P.2d 339, 340 (1972) (“It is fundamental in

  Colorado that the scope of final argument rests in the sound

  discretion of the trial court.”). “A trial court abuses its discretion if

  its decision is manifestly arbitrary, unreasonable, or unfair, or if it

  misconstrues or misapplies the law.” People v. Bohl, 2018 COA

  152, ¶ 16. However, we review de novo whether the trial court

  misapplied the law, People v. Jimenez, 217 P.3d 841, 859 (Colo.

  App. 2008), by allowing the prosecution to give a rebuttal closing

  argument after waiving initial closing.




                                      15
¶ 28   Where defense counsel failed to object at trial, as here, we

  review for plain error. See Hagos, ¶ 14.

                               C.    Analysis

¶ 29   Payne asserts that because his counsel was forced to give his

  closing statement first and was thus unable to respond to the

  prosecutor’s closing remarks, his constitutional right to a fair trial

  and to present a complete defense was violated. We disagree.

¶ 30   First, whether the trial court erred here — by allowing the

  prosecutor to delay her closing statement until rebuttal — did not

  implicate Payne’s constitutional right to a fair trial. 3 See People v.

  Flockhart, 2013 CO 42, ¶ 20 (“Only those errors ‘that specifically

  and directly offend a defendant’s constitutional rights are

  “constitutional” in nature.’”) (citations omitted); People v. Davis, 280

  P.3d 51, 53 (Colo. App. 2011) (observing that closing argument “is

  broadly accepted as being subject to the discretion of the trial court,




  3 Further, because closing statements are not evidence, but merely
  allow counsel to highlight the significance of evidence, we also reject
  Payne’s suggestion that the order of closing arguments affected his
  right to present a defense. See People v. Rhea, 2014 COA 60, ¶ 68
  (recognizing that closing argument is not evidence).
                                     16
  and does not rise to the level of constitutional error”) (citation

  omitted).

¶ 31   Second, Colorado procedure does not dictate a specific order

  for closing arguments. Crim. P. 30 requires that a trial court

  instruct the jury before closing arguments to allow counsel to

  comment on instructions during closing but is silent regarding the

  order for closing arguments. See also People v. Bastin, 937 P.2d

  761, 764 (Colo. App. 1996). And we will not read requirements into

  our procedural rules that are not there. See People v. Greer, 262

  P.3d 920, 930 (Colo. App. 2011) (“[W]e are not free to depart from

  the plain language of a supreme court rule.”); see also Humane

  Soc’y of Pikes Peak Region v. Indus. Claim Appeals Office, 26 P.3d

  546, 549 (Colo. App. 2001) (“[W]e may not read a nonexistent

  provision into the statute.”). Because the trial court could not have

  violated a nonexistent rule, it could not have misapplied the law in

  allowing the prosecutor to conduct rebuttal closing after she waived

  initial closing. Our conclusion is consistent with the broad

  discretion trial courts are afforded in presiding over closing




                                     17
  argument. See Motley, 179 Colo. at 79, 498 P.2d at 340; Brown,

  218 P.3d at 740.

¶ 32   While Payne relies on Fed. R. Crim. P. 29.1 — which dictates

  the order of closing arguments as follows: the government argues,

  then the defense, and then the government rebuts — Colorado has

  not adopted any similar rule. 4 And, even where the rule applies, a

  defendant’s right to not give the initial closing statement under Fed.

  R. Crim. P. 29.1 has not been interpreted as a constitutional right.

  See, e.g., United States v. Cugno, 255 F. App’x 5, 12 (5th Cir. 2007)

  (recognizing that “allowing the government to save its core

  arguments for rebuttal may constitute an abuse of discretion” and

  looking to whether the defendant could demonstrate prejudice); see

  also Warren v. State, 636 S.E.2d 671, 673 (Ga. Ct. App. 2006) (“As



  4 Fed. R. Crim. P. 29.1 is silent on whether a prosecutor waives
  rebuttal closing if she waives her initial closing statement. Payne
  relies on Fed. R. Crim. P. 29.1’s advisory committee notes, which
  state that the “Committee is of the view that the prosecutor, when
  he waives his initial closing argument, also waives his rebuttal”
  because the “fair and effective administration of justice is best
  served if the defendant knows the arguments actually made by the
  prosecution . . . before the defendant is faced with . . . what to
  reply.” Fed. R. Crim. P. 29.1 advisory committee’s note B to 1975
  enactment.

                                    18
  construed by the federal courts, Rule 29.1 ‘does not establish a

  constitutional doctrine[.]’”) (citation omitted).

¶ 33    Because the order of closing remarks does not implicate

  Payne’s constitutional rights, and Colorado has not adopted a rule

  like Fed. R. Crim. P. 29.1, federal precedent is not particularly

  useful here. 5 See Warne v. Hall, 2016 CO 50, ¶ 17 (“[S]tate courts

  are generally free to adopt procedural rules different from those

  governing federal proceedings[.]”); cf. People v. Spykstra, 234 P.3d

  662, 666 (Colo. 2010) (recognizing that federal court decisions are

  not controlling when interpreting Colorado procedural rules, but

  noting that federal case law was helpful in interpreting Colorado

  Crim. P. 15(a) as Colorado’s rule was “patterned after the federal

  rule”).

¶ 34    While our supreme court is free to adopt a rule similar to Fed.

  R. Crim. P. 29.1, it has not done so. 6 See Strudley v. Antero Res.



  5 To the extent Payne relies on foreign precedent from states that
  have adopted a rule similar to Fed. R. Crim. P. 29.1, such case law
  is also inapplicable here.
  6 When Colorado’s criminal rules were first adopted in 1961, they

  often paralleled the federal rules, with some deviations. See Civil
  Rules Committee and the Rules of Criminal Procedure Committee, 33

                                      19
  Corp., 2013 COA 106, ¶ 34 (recognizing that if our supreme court

  had “intended to adopt a standard similar to that in the federal

  rules, it could have done so by patterning C.R.C.P. 16 after the

  federal rule”), aff’d, 2015 CO 26. Thus, we reject Payne’s argument

  that the prosecutor waived her right to rebuttal closing when she

  declined to give the initial closing statement. See People v. Rediger,

  2018 CO 32, ¶ 39 (Waiver “is ‘the intentional relinquishment of a

  known right or privilege,’” and we “indulge every reasonable

  presumption against waiver.”) (citations omitted).

¶ 35   We next address whether a trial court abuses its discretion by

  allowing a prosecutor to raise new arguments during rebuttal. See

  Motley, 179 Colo. at 79, 498 P.2d at 340; Brown, 218 P.3d at 740.

  Our supreme court has not, by procedural rules or precedent,

  explicitly required prosecutors to limit their rebuttal closing

  statements to issues that they addressed in their initial closing




  Colo. Law. 75, 77 (Aug. 2004). However, the passage, deletion, or
  modification of a federal criminal rule may, but will not necessarily,
  trigger a rule change in Colorado. Id. Fed. R. Crim. P. 29.1 was
  added in 1974 and became effective December 1, 1975. See 2A
  Charles Alan Wright et al., Federal Practice & Procedure § 476,
  Westlaw (4th ed. database updated Aug. 2019).
                                    20
  statements or that the defendant’s counsel addressed in closing.

  See People v. Allgier, 2018 COA 122, ¶ 52 (“Prosecutors also have

  considerable latitude in replying to opposing counsel’s arguments

  and in making arguments based on facts in evidence and

  reasonable inferences that can be drawn from those facts.”). But

  see People v. Gilmore, 97 P.3d 123, 131 (Colo. App. 2003) (holding

  that the prosecutor’s rebuttal closing statement did not constitute

  plain error where the comments “were in response to the defense

  challenge to the quality of the police investigation”).

¶ 36   Whether a trial court abuses its discretion by allowing a

  prosecutor to raise new arguments during rebuttal — new in the

  sense that the prosecutor did not give the initial closing statement

  or that the prosecutor’s rebuttal addressed issues not raised by

  defendant’s counsel in closing — appears to be a matter of first

  impression for our court. Accordingly, we look to other jurisdictions

  without a rule similar to Fed. R. Crim. P. 29.1 for guidance. See

  People v. Rail, 2016 COA 24, ¶ 22 (cert. granted Apr. 10, 2017); see

  also Lewis v. State, 657 S.E.2d 854, 857 (Ga. 2008) (declining to




                                     21
  adopt the federal practice and ruling that trial courts may allow the

  prosecution to waive its initial closing).

¶ 37   Some of these jurisdictions have rejected the notion that a trial

  court inherently errs by allowing the prosecution to reserve its

  closing statement until rebuttal. See Commonwealth v. Seminara,

  483 N.E.2d 92, 99 (Mass. App. Ct. 1985) (“That the drafters of the

  Federal Rules of Criminal Procedure have endorsed a different order

  of argument does not . . . compel the Massachusetts courts to do

  the same. . . . If defense counsel hears prejudicial error in the

  prosecutor’s closing, there is an opportunity to object, request

  curative instructions, or move for a mistrial.”); Margraves v. State,

  56 S.W.3d 673, 684 (Tex. App. 2001) (rejecting defendant’s

  contention that the trial court erred in allowing the State to reserve

  its entire closing argument for rebuttal and noting that if “the

  legislature intended the State to be required to open the closing

  arguments, it could have easily indicated that intention [in the

  Texas Code of Criminal Procedure]”); see also Porter v. United

  States, 826 A.2d 398, 409 (D.C. 2003) (recognizing that while the

  prosecutor should not develop new arguments on rebuttal, it “is not


                                     22
  an inflexible rule, leaving to the trial court to determine, in its

  discretion, how far the rebuttal may extend”); State v. Martinez, 651

  A.2d 1189, 1195-96 (R.I. 1994) (“[T]he order of argument in a

  criminal case lies within the sound discretion of the trial justice and

  is subject to review only for abuse of that discretion.”).

¶ 38   Other jurisdictions often look to whether a defendant was

  prejudiced. See Bailey v. State, 440 A.2d 997, 1001 (Del. 1982)

  (holding that the trial court abused its discretion in allowing the

  prosecution, during its rebuttal, to discuss testimony not

  mentioned by the defense or by the prosecution in its opening

  closing statement); Presi v. State, 534 A.2d 370, 371 (Md. Ct. Spec.

  App. 1987) (holding that the trial court abused its discretion in

  allowing the prosecution to raise a new issue in its rebuttal because

  the defendant was prejudiced by having no “opportunity to rebut

  the State’s new argument”); State v. Hughes, 796 S.E.2d 174, 181

  (S.C. Ct. App. 2017) (holding that the defendant failed to

  demonstrate prejudicial error, where the trial court allowed the

  prosecutor to delay most of his closing remarks until rebuttal,

  because the prosecutor’s rebuttal closing “was confined to content


                                     23
  that had already been raised in Hughes’s closing argument”). Given

  that trial courts enjoy broad discretion concerning the scope of final

  argument, see Motley, 179 Colo. at 79, 498 P.2d at 340, it is equally

  reasonable to vest trial courts with discretion over the order of final

  argument, see Martinez, 651 A.2d at 1195-96.

¶ 39   We adopt the prejudice approach and conclude that because

  Colorado law does not require the prosecutor to give the initial

  closing statement, and a prosecutor does not waive rebuttal

  remarks by forgoing the initial closing, a trial court abuses its

  discretion by allowing the prosecutor to reserve her closing

  statement until rebuttal only when the prosecutor’s rebuttal

  remarks prejudice the defendant, and the court fails to remedy

  such prejudice, such as by striking the argument or allowing

  surrebuttal by the defense. We perceive no such prejudice here.

¶ 40   During the prosecutor’s rebuttal statement, she responded

  only to Payne’s counsel’s closing arguments. Specifically, her

  statements disputed Payne’s counsel’s argument that Payne was

  not confined or in custody. Further, the prosecutor’s rebuttal

  remarks were tied to evidence admitted during trial or to reasonable


                                    24
inferences from admitted evidence. See Martinez v. People, 244 P.3d

135, 142 (Colo. 2010) (“[W]e do not require prosecutors to follow a

rigid or formulaic method when referencing evidence in the record.

The prosecutor must nonetheless make some reference to evidence

[admitted at trial.]”). Accordingly, although Payne’s counsel was

unable to respond to the prosecutor’s closing remarks, Payne was

not prejudiced by them. See Bailey, 440 A.2d at 1001; Presi, 534

A.2d at 371; Hughes, 796 S.E.2d at 181; see also Motley, 179 Colo.

at 79, 498 P.2d at 340. If Payne’s counsel believed the prosecutor’s

rebuttal argument exceeded the scope of defense’s closing, he could

have objected, requested surrebuttal, requested a curative

instruction, or moved for a mistrial. 7 See Cugno, 255 F. App’x at

12; Seminara, 483 N.E.2d at 99. Moreover, we cannot say that the

prosecutor’s rebuttal statement impermissibly shifted the burden of



7 Of course, in making the tactical decision to waive initial closing,
the prosecutor risks the possibility that a defendant may also waive
closing. See, e.g., Yarborough v. Gentry, 540 U.S. 1, 6 (2003)
(acknowledging that “it might sometimes make sense [for defense
counsel] to forgo closing argument altogether”); Moore v. Reynolds,
153 F.3d 1086, 1104 (10th Cir. 1998) (concluding that defense
counsel was not ineffective by waiving closing argument because it
“was the product of a strategic decision . . . designed to prevent the
district attorney from giving a second summation”).
                                  25
  proof to Payne where (1) the prosecutor’s rebuttal remarks did not

  exceed the scope of Payne’s counsel’s closing argument, and (2) the

  prosecutor reminded the jury that closing statements are not

  evidence.

¶ 41   For the same reasons — that the prosecutor’s rebuttal

  remarks did not exceed the scope of Payne’s counsel’s closing

  remarks and the prosecutor properly reminded the jury that closing

  arguments did not constitute evidence, see People v. Trujillo, 2018

  COA 12, ¶ 40 — and because Payne’s counsel failed to object to the

  prosecution reserving its closing statement until rebuttal, see

  People v. Lovato, 2014 COA 113, ¶ 65, we conclude that Payne was

  not prejudiced, see Bailey, 440 A.2d at 1001; Presi, 534 A.2d at

  371; Hughes, 796 S.E.2d at 181. Therefore, under the facts of this

  case, the trial court did not abuse its discretion by allowing the

  prosecutor to reserve her closing statement until rebuttal. See

  Bohl, ¶ 16; People v. Krueger, 2012 COA 80, ¶ 51.




                                    26
                       V.    Prosecutorial Misconduct

¶ 42   Payne last argues that the trial court reversibly erred by

  allowing the prosecutor to misstate the custody and confinement

  law during closing. We disagree.

                        A.    Additional Background

¶ 43   Regarding whether Payne was confined or in custody, the

  prosecutor stated,

            What does your reason and common sense tell
            you about custody or confinement. . . . [Y]ou
            see someone being approached on the street.
            That person is told by law enforcement,
            “Police, stop.” They . . . are handcuffed,
            detained, not free to leave, as the officer
            testified, an officer on each hand and they’re
            being walked to sit down while they’re giving
            identifying information about themselves.
            Handcuffed, ordered to stop, two police officers
            hands on with them. I would argue to you
            your reason and common sense is fairly clear.
            That person is clearly in custody or
            confinement. Now [Payne’s counsel] would ask
            you to believe that confinement must refer to
            only someone who was in a detention facility.
            That’s not in the jury instructions. That’s not
            the law the judge has given to you. Custody or
            confinement means what your reason and
            common sense tells you those words mean.




                                     27
               B.      Standard of Review and Preservation

¶ 44   Our review of a prosecutorial misconduct claim involves a two-

  step analysis. First, we determine whether the prosecutor’s

  conduct was improper based on the totality of the circumstances;

  second, we determine whether the conduct warrants reversal under

  the proper standard of review. Wend v. People, 235 P.3d 1089,

  1096 (Colo. 2010).

¶ 45   “We review the district court’s determination whether a

  prosecutor engaged in misconduct for an abuse of discretion. We

  will not disturb the court’s ruling absent a showing of a gross abuse

  of discretion resulting in prejudice and a denial of justice.” Krueger,

  ¶ 51 (citations omitted). Where defense counsel failed to object at

  trial, as here, we review for plain error. See Hagos, ¶ 14. “To

  constitute plain error, prosecutorial misconduct must be flagrant or

  glaringly or tremendously improper, and it must so undermine the

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

  reliability of the judgment of conviction.” People v. McMinn, 2013

  COA 94, ¶ 58.




                                    28
                           C.   Applicable Law

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

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

  People v. Conyac, 2014 COA 8M, ¶ 132. During closing remarks,

  prosecutors have wide latitude in the language and style they

  choose to employ. Domingo-Gomez v. People, 125 P.3d 1043, 1048

  (Colo. 2005). 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. However, a prosecutor may not misstate the evidence or the

  law. People v. Robles, 302 P.3d 269, 279 (Colo. App. 2011), aff’d,

  2013 CO 24.

¶ 47   In determining whether a closing argument was improper, we

  may consider the language used, the context of the statements, the

  strength of the evidence, and whether the prosecutor repeated the

  misconduct. Lovato, ¶ 64; see also Trujillo, ¶ 40 (A “reviewing court

  may consider whether proper jury instructions mitigated the

  prejudicial effect of prosecutorial misconduct.”). Defense counsel’s


                                    29
  failure to object is also a factor that we may consider when

  examining the impact of a prosecutor’s argument, as it may

  “demonstrate defense counsel’s belief that the live argument,

  despite its appearance in a cold record, was not overly damaging.”

  Lovato, ¶ 65 (quoting People v. Wallace, 97 P.3d 262, 269 (Colo.

  App. 2004)).

                              D.   Analysis

¶ 48   Payne asserts that the prosecutor’s rebuttal statement

  misstated the law, lowered the burden of proof, and misled the jury

  by implying that Payne’s counsel wrongly stated that confinement

  refers only to someone in a detention facility and that confinement

  and custody have a broader meaning rather than a specific, legal

  definition. We disagree.

¶ 49   When viewed in context, the prosecutor’s remarks did not

  constitute plain error. Although the prosecutor wrongly suggested

  that confinement was not limited to someone in a detention facility,

  the jury could properly find Payne guilty of second degree assault if

  it found confinement or custody. See Marquez-Lopez, 952 P.2d at

  789-90 (rejecting defendant’s contention that section 18-3-203(1)(f)


                                   30
  could not apply to him “because he was neither confined in an

  institution nor placed under arrest for a crime prior to the assault”);

  see also Ortega, 899 P.2d at 238. And while divisions of this court

  have interpreted custody to mean some exercise of physical control

  to reasonably ensure that a person is unable to leave, the

  prosecutor’s statement that custody means “what your reason and

  common sense tells you” merely invited the jury to decide whether,

  here, the level of control applied to Payne amounted to custody.

  See Armstrong, 720 P.2d at 169. Thus, while the prosecutor’s

  statement regarding confinement may have been ambiguous or

  inartful, see Samson, ¶ 30, we cannot conclude that the prosecutor

  misstated the law regarding second degree assault, lawfully

  confined or in custody. Nor can we conclude that the prosecutor

  lowered the burden of proof given that the jury was properly

  instructed that the prosecutor’s closing statement did not

  constitute evidence and was instructed that the prosecution had to

  prove every element beyond a reasonable doubt. See Trujillo, ¶ 40.

¶ 50   Ultimately, given that (1) the prosecutor’s confinement

  statement was brief, see Lovato, ¶ 64; (2) Payne’s counsel did not


                                    31
  object, see Trujillo, ¶ 65; and (3) the prosecutor had wide latitude to

  respond to Payne’s counsel’s arguments that Payne was not

  “lawfully confined or in custody,” see Domingo-Gomez, 125 P.3d at

  1048, we conclude that allowing the prosecutor’s statements did

  not constitute plain error, see id. at 1053; McMinn, ¶ 58.

                             VI.   Conclusion

¶ 51   We affirm the judgment of conviction.

       JUDGE J. JONES and JUDGE TOW concur.




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