     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
                                                         September 20, 2018

                               2018COA137

No. 15CA1912, People v. Koper — Criminal Law — Jury
Instructions — Defense of Person; Affirmative Defenses — Self-
Defense; Prosecutorial Misconduct

     A division of the court of appeals considers whether the trial

court erred in rejecting defense-tendered jury instructions on the

affirmative defense of self-defense. The defendant asserted that he

drew his weapon to defend himself against an ongoing assault by a

third party. The People charged defendant with two counts of

felony menacing, naming as victims bystanders against whom

defendant admitted he did not act in self-defense. The division

concludes that defendant was entitled to a self-defense instruction

because his intent to defend himself against the third party could

be transferred to the named victims. Because the erroneous denial
of the transferred intent self-defense instructions was not harmless,

the division reverses the felony menacing convictions.

        The division further concludes that prosecutorial misconduct

requires reversal of defendant’s prohibited possession of a weapon

conviction.

     The division also addresses, to the extent the issues are likely

to arise on remand, the defendant’s claims that the trial court erred

in rejecting a jury instruction on the presumption and inferences a

jury can draw based on blood alcohol content testing and in

precluding an expert witness from giving testimony concerning the

same.

     Accordingly, the division reverses the judgment of conviction

and remands for a new trial.
COLORADO COURT OF APPEALS                                         2018COA137


Court of Appeals No. 15CA1912
City and County of Denver District Court No. 14CR6405
Honorable Kenneth M. Laff, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Michael Koper,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division I
                        Opinion by JUDGE CASEBOLT*
                        Bernard and Welling, JJ., concur

                        Announced September 20, 2018


Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Defendant, Brian Michael Koper, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of two counts

 of felony menacing and one count of prohibited possession of a

 firearm while under the influence of intoxicating liquor. He

 contends that the trial court failed to give a self-defense instruction,

 to which he was entitled, on the felony menacing counts and plainly

 erred in allowing the prosecutor to pose at least forty-four improper

 “were they lying” type questions during cross-examination. He also

 contends that the court erred in rejecting his tendered instruction

 concerning the presumption and inferences that arise when a

 person’s blood alcohol level is less than .05 and in precluding his

 expert witness from giving testimony concerning the same. In an

 issue of first impression, we conclude that defendant was entitled to

 a self-defense instruction concerning the menacing charges based

 on the legal doctrine of transferred intent, and we further conclude

 that prosecutorial misconduct requires reversal of the prohibited

 possession of a firearm conviction. We therefore reverse and

 remand for a new trial on all counts.




                                    1
                            I. Background

¶2    While at a bar one evening, defendant saw an acquaintance he

 knew only as “Abraham” or “Abram” along with several members of

 his family. Defendant said something to Abram’s sister that

 offended Abram. Trying to make amends, defendant approached

 Abram on the bar’s patio to offer him a beer. Abram responded by

 punching defendant twice in the face. Defendant then drew his

 firearm, for which he had a concealed carry permit, and aimed it at

 Abram. After a short standoff, defendant handed the gun to his

 fiancee and the two left the bar.

¶3    The People charged defendant with two counts of felony

 menacing under section 18-3-206(1)(a), C.R.S. 2017 (proscribing

 the knowing placement of or attempt to place another person in fear

 of imminent serious bodily injury by employing any threat or

 physical action by the use of a deadly weapon). The first count

 named the alleged victim as M.B., a security guard at the bar who

 had stepped between defendant and Abram after defendant drew

 his weapon. The second count named the alleged victim as B.B.,

 another bar patron who had been sitting on the patio at a picnic

 table behind Abram. The People also charged defendant with


                                     2
 prohibited possession of a firearm under section 18-12-106(1)(d),

 C.R.S. 2017 (prohibiting “possession [of] a firearm while [a] person

 is under the influence of intoxicating liquor”). The jury found

 defendant guilty as charged.

                     II. Self-Defense Instructions

¶4    Defendant contends that the trial court erred in rejecting his

 jury instructions on the affirmative defense of self-defense. We

 agree.

                          A. Additional Facts

¶5    During trial, the defense tendered jury instructions defining

 the elements of “defense of person,” explaining “apparent necessity,”

 and raising the affirmative defense of self-defense as to the

 menacing charges. The People objected to the instructions, arguing

 that defendant had not acted in self-defense as to the named

 victims but rather in response to Abram’s actions, and no offense

 concerning Abram had been charged. In response, the defense

 argued that, though defendant “certainly . . . wasn’t defending

 himself against [M.B.] or [B.B.] . . . he pulled the weapon in defense

 of an assault that had actually occurred, and in his opinion, was

 ongoing. The jury needs to know in some way, shape, or fashion, in


                                   3
 these instructions, that he is entitled to defend himself against an

 assault.”

¶6    The trial court rejected the affirmative defense instructions.

 However, it allowed the defense to incorporate a self-defense

 argument in a theory of the case instruction that read, in relevant

 part, that defendant “drew his firearm and used it solely for the

 purposes of preventing further assault [by Abram] and holding his

 assailant at bay.” In permitting that instruction, the trial court

 stated, “[T]here was an element of self-defense in the case; it was

 not as to the people who were allegedly menaced.”

¶7    During closing argument, the prosecutor argued that “nowhere

 in the jury instructions does the word or concept ‘self-defense’ show

 up.” He also stated that when a person points a gun at another,

 whether it is in self-defense is “immaterial” because the action

 inevitably scares the person at whom the gun is pointed.

                        B. Standard of Review

¶8    If there is some credible evidence presented that a defendant

 has acted in self-defense, “the prosecution bears the burden of

 proving beyond a reasonable doubt that the defendant did not act

 in self-defense, and the trial court must instruct the jury


                                    4
  accordingly.” People v. Pickering, 276 P.3d 553, 556 (Colo. 2011).

  “The question of whether the defendant has presented ‘some

  credible evidence’ to support each element of an affirmative defense

  is a question of law,” and we therefore review the issue de novo.

  People v. Oslund, 2012 COA 62, ¶ 16.

¶9     We review preserved instructional errors for nonconstitutional

  harmless error. See Castillo v. People, 2018 CO 62, ¶¶ 55-61

  (reviewing erroneous initial aggressor instruction for harmless

  error); People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). Under that

  standard, we reverse only if the error “substantially influenced the

  verdict or affected the fairness of the trial proceedings.” Hagos v.

  People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,

  342 (Colo. 1986)).

                            C. Applicable Law

                             1. Self-Defense

¶ 10   Colorado recognizes a limited statutory right to use physical

  force in self-defense. See generally § 18-1-704, C.R.S. 2017. In

  particular, a person may use physical force on another person to

  defend himself from what “he reasonably believes to be the use or

  imminent use of unlawful physical force by that other person.”


                                     5
  § 18-1-704(1). Additionally, a person acting in self-defense may

  employ “a degree of force which he reasonably believes to be

  necessary” to defend himself. Id.

                          2. Transferred Intent

¶ 11   The doctrine of transferred intent “is a legal fiction that is used

  to hold a defendant criminally liable to the full extent of his or her

  criminal culpability.” People v. Hunt, 2016 COA 93, ¶ 24 (quoting

  State v. Fekete, 901 P.2d 708, 714 (N.M. 1995)). The doctrine is

  typically invoked when an actor intends to commit a criminal act,

  but “the actual result differs from the result designed or

  contemplated only in that a different person or property was injured

  or affected.” Id. (quoting Fekete, 901 P.2d at 714). By way of

  example, if A intends to shoot B, but misses and instead shoots and

  kills unintended victim C, A can be held criminally liable for C’s

  murder even though A did not intend to harm C. In that scenario,

  A’s criminal intent to harm B “transfers” to C. See People v.

  Jackson, 2018 COA 79, ¶ 89 (discussing transferred intent in the

  context of determining whether attempted murder after deliberation

  of one person is a lesser included offense of the murder after

  deliberation of another person).


                                      6
¶ 12    Thus, the doctrine of transferred intent is most frequently

  used as a “sword” by the prosecution to hold a defendant criminally

  liable. Nevertheless, the doctrine can also limit a defendant’s

  liability:

               There are, of course, some situations where,
               though A intentionally kills or injures B, A is
               not guilty of murder or battery. Though he
               kills B, . . . he may be guilty of no crime at all
               (e.g., when he is privileged to kill or injure B in
               self-defense, or to prevent B’s commission of a
               felony). Now suppose A shoots at B under
               these circumstances but, missing B, hits and
               kills or injures C, an innocent bystander. If A
               aims at his attacker B in proper self-defense,
               but hits C instead, he is not generally guilty of
               murder or battery of C. Once again, he is only
               as guilty as to C as he would have been had
               his aim been accurate enough to have hit B.

  1 Wayne R. LaFave, Substantive Criminal Law § 6.4(d) (3d ed. 2017)

  (footnote omitted).

¶ 13    Accordingly, several jurisdictions have embraced the concept

  of “transferred intent self-defense.” Under that concept, “the

  doctrine of self-defense is available to insulate one from criminal

  responsibility where his act, justifiably in self-defense, inadvertently

  results in the injury of an innocent bystander.” People v. Mathews,

  154 Cal. Rptr. 628, 631-32 (Cal. Ct. App. 1979); see State v. Clifton,



                                        7
  290 N.E.2d 921, 923 (Ohio Ct. App. 1972); Holloman v. State, 51

  P.3d 214, 221-22 (Wyo. 2002) (collecting cases); see also State v.

  Bellinger, 278 P.3d 975, 989-91 (Kan. Ct. App. 2012) (Atcheson, J.,

  dissenting). Colorado’s appellate courts have not addressed this

  precise issue. But see Henwood v. People, 54 Colo. 188, 194, 129 P.

  1010, 1013 (1913) (approving in dicta self-defense instruction when

  defendant unintentionally shot and killed a bystander while acting

  to defend himself from a third person).

                               D. Analysis

¶ 14   It is essentially undisputed that defendant raised some

  credible evidence that he acted in self-defense against Abram.

  Defendant testified that after Abram punched him twice in rapid

  succession, he stumbled backward and took a knee before drawing

  his weapon. Abram was pacing back and forth in front of him and

  threatening to continue the fight. Defendant testified that he

  believed Abram “was going to beat [him] to a bloody pulp” if he did

  not use the firearm to keep Abram at bay. In our view, that

  evidence would have been sufficient to raise an affirmative defense

  of self-defense if Abram had been named as a victim. See People v.

  Speer, 255 P.3d 1115, 1119 (Colo. 2011) (“It is too well settled to


                                    8
  merit further discussion that a trial court is obliged to instruct the

  jury on a requested affirmative defense if there is any credible

  evidence, including even highly improbable testimony of the

  defendant himself, supporting it.”).

¶ 15   The crux of the issue here, however, is whether defendant was

  entitled to raise self-defense as an affirmative defense as to M.B.

  and B.B. As the Mathews court reasoned:

             [T]he common law theory of “transferred
             intent” . . . , in its principal application,
             establishes that one’s criminal intent follows
             the corresponding criminal act to its
             unintended consequences. As the noted cases
             have held, the reasoning applies equally to
             carry the [l]ack of criminal intent to the
             unintended consequences and thus preclude
             criminal responsibility.

  154 Cal. Rptr. at 631. We find that reasoning persuasive and

  therefore elect to follow the jurisdictions that have adopted and

  applied the concept of “transferred intent self-defense.”

¶ 16   Under the facts of the present case, we conclude that

  defendant was entitled to raise the affirmative defense as to both

  victims.

¶ 17   On the menacing charge alleging B.B. as the victim, B.B.

  testified that she heard glass break, turned, and saw defendant


                                     9
  with “a bunch of guys around him, and they were all kind of

  fighting.” When asked if the gun was ever pointed at her, she

  responded that “[i]t was pointed in [her] direction.” During cross-

  examination, B.B. testified that Abram was between her and

  defendant during the period when defendant’s gun was drawn.

¶ 18   Thus, to the extent that defendant “knowingly place[d] or

  attempt[ed] to place [B.B.] in fear of imminent serious bodily injury”

  as is required by the statute defining felony menacing, § 18-3-

  206(1), his actions may have been justified self-defense. The

  evidence adduced at trial indicated that B.B. was a bystander

  incidentally affected by defendant’s asserted attempt to defend

  himself against what he perceived as a threat posed by Abram.

  Thus, defendant was entitled to assert that his intent to defend

  himself against Abram transferred to B.B.

¶ 19   Concerning M.B., that victim testified, “[Defendant] had the

  gun pointed at the patron [Abram], at the other guy. As I went to

  approach him, he went from pointing the pistol at him to pointing it

  at me.” M.B. stated that he approached defendant from the front at

  “a 45-degree-ish angle” from the right, and that defendant pointed

  the gun in his face.


                                    10
¶ 20   M.B.’s testimony by itself would not allow defendant’s conduct

  as to him to be justified by self-defense. According to this

  testimony, defendant pulled his weapon away from the initial

  aggressor — Abram — and trained it on M.B., even pointing it at his

  face. And no evidence adduced at trial indicated that defendant

  believed M.B. may have been a confederate of Abram’s such that

  defendant believed M.B. presented a threat.

¶ 21   However, defendant testified that M.B. approached him from

  the “back of [his] right hand,” put two hands on defendant’s two-

  handed grip of his pistol, and squeezed defendant’s hands together.

  M.B. then stepped forward and “came into [defendant’s] chest.”

  Defendant testified he perceived that there were a number of people

  around him who were trying to disarm him, including M.B., but he

  was trying not to be disarmed because he was “getting [his] butt

  kicked by Abram.” Then, according to defendant, he was able to

  avoid being disarmed by pointing the gun upward and saying, “[B]e

  careful, man, this thing is loaded,” whereupon the crowd backed

  away from him. Defendant testified that he did not point the gun at

  M.B., and he denied waving the gun around at other patrons on the

  patio.


                                    11
¶ 22   This testimony presents a contrary version of the events

  surrounding M.B.’s interaction with defendant. If believed by the

  jury, defendant’s testimony constitutes sufficient evidence to justify

  a self-defense instruction as to victim M.B. Defendant’s intent to

  defend himself against Abram would, if the jury believed this

  testimony, allow the intent as to Abram to transfer to the encounter

  with M.B.

¶ 23   Thus, we conclude the trial court erred in rejecting defendant’s

  jury instructions on self-defense as an affirmative defense to the

  menacing charges. We further conclude that the error was not

  harmless because while the defense’s theory of the case instruction

  referred generally to self-defense, the instruction did not require the

  prosecution to disprove self-defense beyond a reasonable doubt.

  See Pickering, 276 P.3d at 556. The instructions on the menacing

  charges provided no means by which the jury could acquit

  defendant if it found that, though he committed felony menacing,

  he was justified in acting to defend himself. Because we conclude

  that the erroneous denial of the self-defense instructions

  “substantially influenced the verdict,” Hagos, ¶ 12, we reverse the

  convictions for felony menacing.


                                     12
¶ 24   We emphasize that we express no opinion as to whether

  defendant used reasonable physical force or whether his conduct as

  to either victim was in fact justified. Our conclusion merely leaves

  it to the jury to decide whether defendant’s actions were justified

  under appropriate jury instructions. See § 18-1-704(1) (a person

  must reasonably fear the use or imminent use of unlawful physical

  force by another person and use reasonable force in response); cf.

  Holloman, 51 P.3d at 222 (“Under these alleged facts, we

  nevertheless believe that [defendant’s] testimony required that the

  jury be instructed on the law of self-defense. The jury’s role is to

  determine whether [his] intentional acts were self-defense . . . .”).

¶ 25   The People do not directly address defendant’s transferred

  intent argument. Instead, they assert in their brief that (1)

  defendant was not entitled to any affirmative defense because he

  did not admit that he committed the charged acts and (2) there was

  no credible evidence that either alleged victim used unlawful force

  against defendant.

¶ 26   As to the first contention, we disagree that defendant is barred

  from raising any affirmative defense as to either menacing victim.

  Although he did not concede guilt, he admitted that he committed


                                     13
  the acts that gave rise to those charges. See People v. Whatley, 10

  P.3d 668, 670 (Colo. App. 2000) (“An affirmative defense is a

  defense that admits conduct leading to the act charged but seeks to

  justify, excuse, or mitigate that conduct.”) (emphasis added). As to

  the second argument, we disagree for the reasons expressed in our

  analysis above.

¶ 27   The People asserted during oral argument that transferred

  intent self-defense is only available under a first degree murder

  after deliberation or assault charge, given the statutes’ allowance of

  a charge even when the intended victim is not harmed, but a third

  person’s death or assault is caused by the actor. See, e.g., § 18-3-

  102(1)(a), C.R.S. 2017; § 18-3-202(1)(a)-(c), C.R.S. 2017. Because

  this contention was raised for the first time at oral argument, we

  decline to address it here. See People v. Becker, 2014 COA 36, ¶ 23

  (court will not address an argument first raised by the People

  during oral argument).

¶ 28   Thus, we conclude that on remand defendant is entitled to

  raise the affirmative defense of self-defense as to the menacing

  charges, if the evidence at trial on remand is presented in a similar




                                    14
  posture as that presented on this appeal, and the trial court must

  give appropriate instructions concerning it.

                      III. Prosecutorial Misconduct

¶ 29   Defendant contends that prosecutorial misconduct requires

  reversal of his conviction for possession of a firearm while

  intoxicated. Reviewing under a plain error standard because

  defendant did not object to the questions, we agree.

                       A. Standard of Review

¶ 30   We engage in a two-step analysis in reviewing 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, under the proper standard of review,

  any misconduct warrants reversal. Id. We review conduct to which

  a defendant did not object for plain error. Id. at 1097.

                           B. Applicable Law

¶ 31   “[A]sking a witness to opine on the veracity of another witness

  is prejudicial, argumentative, and ultimately invades the province of

  the fact-finder.” Liggett v. People, 135 P.3d 725, 732 (Colo. 2006).

  Thus, “were they lying” type questions are “categorically improper.”


                                    15
  Id. at 733; see also People v. Wittrein, 221 P.3d 1076, 1081 (Colo.

  2009) (“In Colorado, neither lay nor expert witnesses may give

  opinion testimony that another witness was telling the truth on a

  specific occasion.” (citing CRE 608(a))).

¶ 32    Improper “were they lying” type questions include asking a

  testifying defendant whether another witness was “mistaken,” State

  v. Flanagan, 801 P.2d 675, 679 (N.M. Ct. App. 1990) (noted as

  support for a finding of error in Liggett), as well as questions asking

  a defendant to explain the testimony of an adverse witness, Burgess

  v. State, 495 S.E.2d 445, 447 (S.C. 1998) (also noted as support in

  Liggett).

                              C. Application

¶ 33    We have little difficulty in concluding that the prosecutor’s

  questions here were improper “were they lying” questions.

¶ 34    Defendant testified in his own defense. As noted earlier,

  during direct examination, defense counsel summarized M.B.’s

  testimony that defendant had aimed his weapon directly at M.B.

  and asked defendant, “Is that what happened?” Defendant

  responded, “No.” Later, defense counsel also asked whether

  defendant believed he had been “substantially incapable of


                                    16
  exercising sufficient physical control” when he drew his weapon, to

  which defendant responded, “Absolutely not, and I think the

  testimony of everybody proves that.”

¶ 35   During cross-examination, the prosecutor repeatedly asked

  defendant to opine on testimony given by prosecution witnesses.

  The prosecutor asked defendant about inconsistencies between his

  testimony and that of the People’s witnesses, asking whether the

  People’s witnesses were “wrong,” “right or wrong,” “completely

  incorrect,” and “completely wrong,” and also asking at various

  points whether testimony from the People’s witnesses had been “no

  good” and “true or untrue.”

¶ 36   In particular, the prosecutor asked defendant whether other

  witnesses incorrectly testified that he had “waved” the gun around

  and that he had been drunk. He also asked whether defendant

  believed the People’s witnesses were wrong about various details,

  including what time he had arrived at the bar, how he had reacted

  to Abram’s punches, and whether he had had his jacket over his

  arm when he approached Abram.

¶ 37   The People assert that the prosecutor’s questions were proper

  under Liggett because they were merely designed to highlight


                                   17
  conflicting evidence and “did not call for defendant to opine as to

  whether the witnesses were lying.” The record belies this argument.

  The prosecutor asked defendant point blank whether the People’s

  witnesses were lying, incorrect, and wrong. Cf. Liggett, 135 P.3d at

  735 (considering questions about whether witness was “mistaken”

  to fall within prohibited category).

¶ 38   The People acknowledge on appeal that

               [t]here are other ways to emphasize conflicts in
               the evidence and raise questions as to a
               witness’s credibility that do not involve asking
               “were they lying” types of questions. For
               example, a cross-examiner may ask non-
               prejudicial questions that highlight the
               discrepancies and later emphasize any
               conflicting accounts by juxtaposing them in
               closing argument.

  Id. at 732. But contrary to the People’s further argument, the

  prosecutor here went beyond asking non-prejudicial questions

  designed to highlight discrepancies in the evidence. Instead, by our

  count, the prosecutor asked defendant some forty-four times

  whether another witness’s testimony was incorrect, wrong, or

  untrue, or whether the witness had lied. These questions fell

  squarely within the category of prohibited “were they lying”

  questions.


                                      18
¶ 39   The People also contend that the defense opened the door to

  any impermissible questions. At the outset, it is not clear that the

  “opening the door” concept applies in this context. In Liggett, a

  division of the court of appeals concluded that “were they lying”

  questions were generally disallowed, “except when the only possible

  explanation for the inconsistent testimony is deceit or lying or when

  the defendant has opened the door by testifying about the veracity

  of other witnesses on direct examination.” People v. Liggett, 114

  P.3d 85, 88 (Colo. App. 2005), aff’d, 135 P.3d 725. While the

  supreme court affirmed the division’s outcome, it disagreed with the

  division’s holding that there were exceptions to the categorical

  prohibition on “were they lying” questions, stating: “[W]e decline to

  adopt the rule articulated by the court of appeals. Instead, we

  adopt the approach followed in a majority of jurisdictions that

  broadly prohibits asking a witness to comment on the veracity of

  another witness.” 135 P.3d at 727. But see People v. Kessler, 2018

  COA 60, ¶¶ 43-44 (appearing to apply the opening the door

  exception generally but finding it inappropriate under the facts).

¶ 40   In any event, we do not agree that the defense opened the door

  to the barrage of “were they lying” questions the prosecutor


                                    19
  employed here. Although defendant testified that he did not agree

  with M.B.’s version of events and that he believed other witnesses’

  testimony supported his assertion that he had not been under the

  influence, he did not directly comment on the truth or veracity of

  any witness who had given testimony during direct examination.

¶ 41   Thus, we conclude that the prosecutor’s “were they lying”

  questions were improper.

                           D. Plain Error Review

¶ 42   We turn to whether the prosecutor’s misconduct requires

  reversal under the plain error standard. We conclude that it does.

¶ 43   An error is plain only if it is “obvious and substantial.” Hagos,

  ¶ 14. For an error to be obvious, it must ordinarily “contravene (1)

  a clear statutory command; (2) a well-settled legal principle; or (3)

  Colorado case law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting

  People v. Pollard, 2013 COA 31M, ¶ 40). Put another way, an error

  is obvious if it is so clear-cut that a trial court should be able to

  avoid it without the benefit of objection. People v. Ujaama, 2012

  COA 36, ¶ 42. An error is substantial if it “undermined the

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




                                     20
  on the reliability of the judgment of conviction.” Hagos, ¶ 14

  (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

¶ 44   Here, we conclude that the error was obvious because it

  violated controlling Colorado case law — namely, the Colorado

  Supreme Court’s holding in Liggett. See also Kessler, ¶ 46

  (describing rule “that witnesses should not be asked to comment on

  the veracity of other witnesses” as a “well-settled legal principle”).

  The rule set forth in Liggett is categorical and, in our view, one a

  trial court should apply even absent an objection, at least in

  circumstances, such as those here, where the prosecutor repeatedly

  and pervasively poses improper questions. Indeed, the trial court in

  this case acknowledged the impropriety of asking defendant

  whether other witnesses had lied. After redirect examination, a

  juror submitted a question for defendant asking in part, “Are you

  saying that all the witnesses who said you were drunk and waving a

  gun were lying?” The trial court sustained the defense’s speculation

  objection, stating, “It’s also not appropriate for one witness to

  comment upon the credibility of others.”

¶ 45   The error was substantial. Almost the entirety of the

  prosecutor’s cross-examination of defendant consisted of


                                     21
  impermissible questions. The People contend that defendant’s

  testimony on cross-examination bolstered his version of events, and

  thus the error was not prejudicial. However, that argument gives

  short shrift to the untenable position defendant was in during the

  cross-examination: asking the defendant to opine on the veracity of

  the People’s witnesses places him “in a no-win situation. If the

  defendant says the other witness is lying, then the defendant is put

  in the position of calling someone a liar . . . . If the defendant says

  a contradictory witness is not lying, then a fair inference is that the

  defendant is lying.” Liggett, 135 P.3d at 732 (quoting State v.

  Graves, 668 N.W.2d 860, 872 (Iowa 2003)); see also id. at 733

  (noting that the defendant’s responses “d[id] not excuse the

  impropriety of the questioning”).

¶ 46   The questions here were not limited to a particular or

  peripheral issue. Instead, the prosecutor asked defendant to opine

  on nearly every witness’s testimony about every contested issue in

  the case. Cf. id. at 735 (noting that questions about whether

  witness was “mistaken” were not plainly erroneous where “the

  subject matter of the questions was largely peripheral to issues

  before the court” and the trial court did not refer to remarks in its


                                      22
  findings). Most significantly, the improper questions concerned

  both defendant’s level of intoxication and whether he had “waved”

  the gun or had kept it trained on Abram. These issues were central

  to the prosecution’s case on the possession of a firearm charge.

¶ 47   Furthermore, the proffered jury question that the trial court

  declined to ask concerning the contrast between defendant’s

  testimony and that of the prosecution’s witnesses shows that at

  least one member of the jury readily connected the prosecutor’s

  questioning on cross-examination to a potential assertion that

  either defendant or the prosecution witnesses were “lying.”

¶ 48   In sum, we conclude that the error undermines our confidence

  in the reliability of the judgment of conviction.

¶ 49   We acknowledge that reversal is warranted under plain error

  review only when prosecutorial misconduct is “flagrantly, glaringly,

  or tremendously improper.” Domingo-Gomez v. People, 125 P.3d

  1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676

  (Colo. App. 1997)). In our view, this is the rare case in which the

  misconduct rose to that level.




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¶ 50   Accordingly, we conclude that the prosecutor’s misconduct

  requires reversal of defendant’s prohibited possession of a firearm

  conviction.

            IV. Presumption Instruction and Expert Testimony

¶ 51   Defendant also contends that the trial court erred in (1)

  rejecting his proposed jury instruction on the presumption and

  inferences a jury can draw based on blood alcohol content (BAC)

  and (2) precluding an expert witness from testifying on the same

  topic. We briefly address this contention to provide guidance on

  remand.

¶ 52   Defendant submitted a jury instruction tracking the

  presumption and permissible inferences set out in section 42-4-

  1301(6)(a), C.R.S. 2017 — namely, that a BAC of .05 or less entitles

  the defendant to a presumption that he or she was not driving

  under the influence of alcohol, a BAC above .05 but below .08 gives

  rise to a permissible inference that the defendant’s driving was

  impaired by the consumption of alcohol, and a BAC above .08 gives

  rise to a permissible inference that the defendant was driving under

  the influence of alcohol. The tendered instruction stated that the

  jury could draw an inference or presumption based on defendant’s


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  BAC as “shown by analysis of the defendant’s blood or breath.”

  However, there was no evidence that police officers had tested

  defendant’s blood or breath at any time in connection with this

  case. Because of the lack of blood or breath analysis, the trial court

  rejected the instruction. Instead, it allowed a defense-tendered

  instruction defining “under the influence.”

¶ 53   Defendant called a toxicologist as an expert witness. Based on

  information provided by the defense detailing the food and drinks

  defendant had consumed at the bar, as well as his height and

  weight, the expert testified that defendant’s BAC at the time he

  drew his weapon was below .05. However, the trial court ruled that

  the expert could not tie her conclusion about defendant’s BAC to

  the presumption in section 42-4-1301(6)(a). The trial court also

  ruled that the expert could not testify on how a BAC of .05 or below

  would affect a person’s body and mental functioning because that

  information had not been disclosed in the expert’s report. See

  Crim. P. 16(II)(b).

¶ 54   First, we conclude that the trial court did not err in rejecting

  the defense-tendered instruction on the BAC-related permissible

  inferences and presumption. As the trial court reasoned, the


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  presumption and inferences are set forth in the statute prohibiting

  driving while impaired and driving under the influence. See

  generally § 42-4-1301. The presumption and inferences are not

  incorporated in the prohibited possession of a firearm statute;

  section 18-12-106(1)(d) does not define “under the influence” at all,

  much less in terms related to a person’s BAC.

¶ 55   More significantly, the language of section 42-4-1301(6)

  implies that a BAC calculation must be based on analysis of the

  defendant’s blood or breath. Such analysis was not done in this

  case. For the same reason, we conclude the trial court did not err

  in ruling that the defense’s expert witness could not tie her

  conclusions about defendant’s BAC to the inferences and

  presumption in the driving while impaired and driving under the

  influence statute.

¶ 56   To the extent defendant contends the trial court erred in

  concluding that the expert could not testify on the physical effects

  of a BAC of .05 or lower, because that issue was not addressed in

  her report, we decline to address the contention. That issue is

  unlikely to arise on remand.




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¶ 57   We take no position on whether the People opened the door to

  evidence or an instruction tying defendant’s BAC to section 42-4-

  1301(6), by eliciting testimony from police officers that they

  considered defendant too intoxicated to drive when he was arrested.

  Because it is not clear that the issue will arise on remand, we

  decline to address it. See People v. Weinreich, 98 P.3d 920, 924

  (Colo. App. 2004) (declining to address evidentiary issue unlikely to

  arise “in the same context” on retrial), aff’d, 119 P.3d 1073 (Colo.

  2005).

                          V. Cumulative Error

¶ 58   In light of our determination that defendant’s convictions must

  be reversed, we need not address his argument regarding

  cumulative error.

                                VI. Conclusion

¶ 59   The judgment is reversed, and the case is remanded for a new

  trial on all charges.

       JUDGE BERNARD and JUDGE WELLING concur.




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