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 August 23, 2018

No. 16CA1801 People v. Allgier — Evidence — Relevancy and its Limits — Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time; Crimes — Possession of Weapons by Previous Offenders

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

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

admission of firearms that were the instrumentality of the crime

(POWPO), although photographs of them had already been

introduced. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA1801 El Paso County District Court No. 15CR6162 Honorable Richard Hall, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cameron Douglas Allgier,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE WEBB Fox, J., concurs Nieto*, J., specially concurs

Announced August 23, 2018

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Anne Parker, Alternate Defense Counsel, Denver, Colorado, for 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. 2017. ¶1 A jury convicted Cameron Douglas Allgier of possession of a

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

four grounds:

 the trial court plainly erred in admitting into evidence the

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

addition to photographs of them;

 the trial court erred in admitting hearsay statements of a

witness, which improperly bolstered that witness’s testimony;

 the trial court plainly erred in allowing the prosecutor to

mischaracterize the evidence and the law during closing

argument; and

 the cumulative effect of these errors was prejudicial.

The possible prejudice from admitting firearms into evidence has

not been addressed in Colorado.

¶2 We affirm.

I. Background

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

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

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

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

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

Arvada associated with defendant. The police went to the

apartment, seized three of the stolen firearms, and arrested

defendant.

II. Any Error in Admitting the Firearms Was Not Plain

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

photographs depicting the firearms seized from the apartment.

When the prosecutor offered these photographs, defense counsel

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

each of the firearms, which the prosecutor separately offered into

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

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

exhibits occurred.

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

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

them. We conclude that plain error did not occur.

A. Waiver

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

should not review this contention for plain error because defendant

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

, ¶ 59 (Rediger I), aff’d in part and rev’d in part,

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

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

this basis, the division concluded that instructional error had been

waived. Id. at ¶ 64.

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

colloquy with the court did not show either actual knowledge or

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

correctly instructed on the elements of the offense charged in the

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

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

supplemental briefs on waiver.

¶8 Defendant did not file a supplemental brief.

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

Rediger II as follows:

[T]he waiver issue here does not raise the concern regarding counsel’s possible lack of knowledge of the basis for making the relevant objection. Both Defendant and his counsel were clearly aware of the evidence that the prosecution was seeking to admit. Therefore, counsel’s statement that he had no objection to the admission of the guns into evidence cannot be attributable to a lack of knowledge

3 of the nature of the evidence or to an oversight. Unlike Rediger’s “general acquiescence” to the jury instructions as a whole, here Defendant stated his lack of objection to the admission of a very specific and obvious evidence.

But this attempted distinction assumes something that Rediger II

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

defense counsel intentionally relinquished a known right. ¶ 39.

Nor have we found such a definition in any Colorado case

considering waiver by counsel in the criminal context.

¶ 10 When the prosecution offers evidence and defense counsel

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

 Defense counsel was uninformed of the legal basis for an

objection.

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

did not recognize the factual basis for an objection.

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

 Defense counsel was aware of both, but concluded that

preserving an objection would be meritless.

1 In identifying these possibilities, we acknowledge the “untenable burden” of “assessing counsel’s strategy[, which] does not fall within the purview of the trial court.” People v. Gross,

.

4  Defense counsel was aware of both, but concluded that

admission of the evidence could be of strategic benefit to the

defendant.

 Defense counsel was aware of both, but concluded that

declining to object could sow the seeds for appellate reversal

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

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

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

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

often the record will not be adequately informative.

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

counsel might embellish “no objection” with words indicating

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

v. Tee,

(“Opposite to what occurred in Rediger II,

here the dialogue between defense counsel and the trial court over

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

objecting . . . .’” (quoting United States v. Zubia-Torres,

(10th Cir. 2008))); see also People v. Kessler,

(The court declined to apply Rediger II where “defense

counsel took the position that the tests were admissible and that

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

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

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

supreme court presumes counsel has some level of legal acumen.

See Stackhouse v. People,

(“‘[W]e presume that

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

infer from the failure to comply with the procedural requirements

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

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

conclusion that counsel must have been aware of the factual basis

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

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

adverse verdict on that basis would encourage

gamesmanship . . . .”).

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

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

object, different from a routine evidentiary question? Although

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

yes, for three reasons.

6 ¶ 15 First, an unwarranted courtroom closure is structural error,

while improper admission of evidence is trial error. Compare

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

automatic reversal without individualized prejudice analysis.”), with

People v. Summitt,

(Colo. 2006) (subjecting

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

magnitude of the error supports the presumption in Stackhouse

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

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

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

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

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

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

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

evidence or testimony. See State v. Smith,

(La.

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

weapons used to commit a crime are relevant to show the

commission of such crime and are therefore generally admissible at

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

7 the presumption in Stackhouse that counsel could not have

overlooked what was happening.

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

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

(“[T]rial courts are obligated to take every reasonable

measure to accommodate public attendance at criminal trials” and

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

Presley v. Georgia,

(2010) (per curiam); then

quoting Waller v. Georgia,

(2015))). But the trial

court need not make findings before admitting fruit or

instrumentality evidence. And the absence of any specific findings

when the prosecutor offered the firearms into evidence could have

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

¶ 18 These three observations show that the waiver analysis in

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

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

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

process — the legal requirement that the elemental instruction

track the charged offense, the elemental instruction that did not

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

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

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

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

foregone an objection.

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

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

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

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

to reverse on this ground would enhance the opportunities for

‘sandbagging’ the district judge.” United States v. Whiting,

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

right to effective assistance of counsel does not require counsel to

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

Wainwright,

(11th Cir. 1984). Still, the record

would rarely explain that counsel — despite actual recognition —

chose not to raise an objection because it was meritless.

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

examining the evidence and concluding that any objection would

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

waiver inquiry would be the converse of the plain error inquiry

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

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

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

inference of a strategic calculation to benefit the defense based on

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

Smith,

(10th Cir. 2008) (finding waiver where

counsel not only represented that he had no objection to the

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

People v. Bondsteel,

(“We decline to review the

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

creates a strong inference that defense counsel did not object to

these statements as a matter of strategy rather than due to

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

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

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

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

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

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

United States,

(2013) (emphasis in original), is

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

10 provides a strategic hedge against potentially risky litigation

decisions, and encourages defense counsel not to object to

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

Smith,

(11th Cir. 2006) (Tjoflat, J.,

specially concurring). But despite extensive recognition by both

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

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

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

of sandbagging if the objection was obviously meritorious,

admission of the evidence would clearly prejudice the defendant,

and defense counsel was experienced. But because “appellate

courts are poorly situated to discern litigation strategy,”

drawing the sandbagging inference on direct appeal would be

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

review discourages a defense counsel from sandbagging a district

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

2“Only after a hearing in which evidence was offered could this Court have known why the appellant’s counsel failed to object. Perhaps counsel had a certain strategy in mind. Perhaps counsel was sandbagging the State. Perhaps counsel was seeking an advantage on direct appeal.” State v. Bolen,

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

11 Redrick,

(D.C. Cir. 2016). As well, in the heat of

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

Weathers,

(Ill. 1975). For these reasons, we

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

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

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

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

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

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

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

understood only as signifying agreement that there was nothing

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

(1st Cir. 2015) (quoting United States v. Christi,

(1st Cir. 2012)).

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

counsel had earlier recognized the possible need for an objection.

See United States v. Comstock,

(8th Cir. 2008)

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

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

admission of evidence previously sought to be suppressed.’”

12 (quoting United States v. Gonzalez-Rodriguez,

(8th Cir. 2001))); United States v. Cunningham,

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

objected to admission of the pictures, he later explicitly withdrew

his objection and furthermore failed to make any additional

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

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

questions about prospective jurors’ attitudes toward firearms.

Asking such general questions would be prudent in any POWPO

case, rather than only in those cases where prejudice somehow

inheres in the particular firearms at issue.

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

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

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

general familiarity with the prejudice limitation in CRE 403 and

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

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

the firearms might create prejudice subject to CRE 403 scrutiny —

poses the inadvertence or intentional relinquishment dilemma. See

13 People v. Foster,

(listing “several imponderables”

inherent in attempting to make such an assessment).

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

blurry.” United States v. Garcia,

(7th Cir. 2009).

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

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

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

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

record as a whole.”

. Simply put, this record does not

foreclose the possibility that defense counsel overlooked the

possible prejudice from having the firearms present in the

courtroom.

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

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

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

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

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

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

excluding from the heightened waiver scrutiny in Rediger II

evidentiary issues that lack constitutional significance as well as

14 reconciling any discrepancy between Rediger II and Stackhouse.

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

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

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

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

directly controls, leaving to this Court the prerogative of overruling

its own decisions.”).

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

B. Standard of Review and Law

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

an abuse of discretion. People v. Faussett,

.

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

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

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

Hagos v. People,

, ¶ 14. An error is plain where it is

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

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

conviction.” Wilson v. People,

(Colo. 1987).

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

reviewing court must afford the evidence the maximum probative

15 value attributable by a reasonable fact finder and the minimum

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

, ¶ 33 (quoting People v. Elmarr,

).

“Consistent with this preference for admission, evidence is not

unfairly prejudicial merely because it damages the defendant’s

case.” People v. Valdez,

. And evidence is

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

decision on an improper basis, commonly but not necessarily an

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

horror.” People v. Dist. Court,

(Colo. 1990).

C. Analysis

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

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

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

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

plain error. The three firearms were an AR 15 rifle,3 a 9mm high-

point assault rifle, and a 12-gauge shotgun.

3 “An ‘AR 15 is the civilian version of the military’s M4 carbine. Contrary to what most people believe AR doesn’t stand for assault rifle, rather it stands for the original manufacturer Armalite Rifle. AR 15 is semiautomatic and doesn’t meet Federal requirements to

16 ¶ 33 As to prejudice, defendant cites no legal authority, nor have we

found any in Colorado, holding that admission of firearms

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

(Colo. App. 1982) (“As for the revolvers, it has

been consistently held that weapons found during a search are

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

does not suggest how the nature of these three firearms was

somehow particularly likely to evoke prejudice. Nor does he point

to any testimony concerning their capabilities that might have done

so.

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

concern about juror attitudes about firearms:

Personal reactions to the ownership of guns vary greatly. Many individuals view guns with great abhorrence and fear. Still others may consider certain weapons as acceptable but others as “dangerous.” A third type may react solely to the fact that someone who has committed a crime has such weapons. Any or all of these individuals might believe that

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

, at *2 n.2 (Iowa Ct. App. May 16, 2018) (unpublished table decision) (quoting AR 15, Urban Dictionary, https://www.urbandictionary.com/define.php?term=AR%2015 (last visited Apr. 24, 2018)).

17 defendant was a dangerous individual . . . just because he owned guns.

State v. Rupe,

(Wash. 1984). Concern has also

arisen from the number of firearms involved:

Two dozen guns in a courtroom is undoubtedly an alarming sight. The prosecutor’s repeated assurances that the weapons were not loaded and that all were examined multiple times to verify that they were secure demonstrated an awareness that jurors would be apprehensive in the presence of this much weaponry.

United States v. Klebig,

(7th Cir. 2009).

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

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

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

admitted:

The Court now directs that the weapons be taken somewhere and locked up. The Court doesn’t anticipate bringing them back and giving them to the jury to deliberate because the Court sees no evidentiary purpose to that.

Although some questions about attitudes toward firearms were

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

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

18 possibility of prejudice, the balancing process must turn to

probative value.

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

relevant and therefore admissible if it is connected in some manner

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

(Colo. App. 1989). In other words, “[e]vidence

that defendant may have possessed an instrument which could

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

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

Moreno,

(6th Cir. 1991) (“[T]he probative value of

the presence of the actual firearms in the courtroom was not

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

(quoting Fed. R. Evid. 403)); United States v. Wiener,

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

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

discretion in holding that its probative weight was not overbalanced

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

cases).

¶ 37 These authorities have particular weight in this case because

the firearms were the instrumentality whereby defendant committed

19 POWPO. See State v. Solomon,

, 528 (Conn. App. Ct.

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

possessed the means to commit the crime of criminal possession of

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

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

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

establish that the defendant had bad character or a propensity for

violence.”). Likewise, in Moreno,

, “[t]he probative

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

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

Klebig were offered only to show that because the defendant owned

so many lawful firearms, his mistake defense to having purchased

an unlawful gun lacked credibility.

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

photographs admitted into evidence. But defense counsel did not

propose any stipulation concerning the firearms, in lieu of their

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

generally entitled to prove the elements of its case against a

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

.

20 ¶ 39 For these reasons, we discern no error, and therefore do not

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

as the instrumentality of the crime.

III. Admission of the Detective’s Testimony About Statements of M.S. Does Not Warrant Reversal

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

called the detective who had interviewed him about the burglary,

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

statements during that interview, defense counsel objected based

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

sergeant to continue.

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

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

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

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

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

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

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

generally not allowed.”

21 ¶ 42 Defense counsel did not ask that the prior testimony be

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

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

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

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

had led the officers to the apartment where the firearms were

seized, which he did, albeit briefly.

A. Standard of Review and Law

¶ 43 A trial court has substantial discretion in deciding questions

concerning the admissibility of evidence. People v. Elie,

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

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

abused that discretion and the error is not harmless.

A trial

court abuses its discretion when its ruling is manifestly arbitrary,

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

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

.

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

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

(Colo. App. 1998). On the other, “a witness’s prior

22 consistent statements are admissible under two distinct theories.”

People v. Clark,

. They may be admitted under

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

are sometimes admissible outside of the rule to rehabilitate a

witness’s credibility. People v. Eppens,

(Colo.

1999).

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

prior consistent statement is admissible turns on the scope of the

attack. Elie,

. If the witness’s testimony is attacked

based on specific facts, only prior consistent statements regarding

those facts are admissible. People v. Miranda,

, ¶ 16.

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

facts, including consistent and inconsistent statements.

B. Analysis

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

statements not admissible under the rules of evidence, but they

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

testimony.”

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

credibility. For example, during opening statement counsel said,

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

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

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

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

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

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

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

, ¶ 39).

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

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

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

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

bolstering from this limited testimony.

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

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

not request one. See People v. Mersman,

(Colo.

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

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

not give a curative instruction sua sponte.”).

24 IV. The Prosecutor’s Statements in Closing Argument Do Not Constitute Plain Error Warranting Reversal

A. Standard of Review and Law

¶ 50 Defendant points to several statements by the prosecutor that

he argues either mischaracterized the evidence or misstated the

law. Defendant concedes that because trial counsel did not object

to these statements, we review only for plain error.

¶ 51 To warrant reversal under plain error, prosecutorial

misconduct must be flagrant or glaringly or tremendously improper

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

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

People v. Strock,

(Colo. App. 2010) (citation

omitted). Prosecutorial misconduct in closing argument rarely

constitutes plain error. People v. Carter,

-2, ¶ 53.

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

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

People v. Samson,

. Prosecutors may employ

rhetorical devices and engage in oratorical embellishment and

metaphorical nuance. People v. Conyac,

.

Prosecutors also have considerable latitude in replying to opposing

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

evidence and reasonable inferences that can be drawn from those

facts.

. As well, “because arguments delivered in the

heat of trial are not always perfectly scripted, reviewing courts

accord prosecutors the benefit of doubt where remarks are

‘ambiguous,’ or simply ‘inartful.’” People v. McBride,

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

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

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

calculated to inflame the passions and prejudices of the jury.

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

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

(quoting Berger v. United States,

(1935)).

B. Analysis

1. Defendant’s Statements to Lieutenant Coates

¶ 54 Lieutenant Coates testified on direct examination that

defendant had told him during the interview that at the Fountain

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

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

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

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

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

the Arvada street address.

¶ 55 During cross-examination, the lieutenant clarified that

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

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

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

them.

¶ 56 During closing argument, the prosecutor said:

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

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

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

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

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

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

room.”

¶ 57 Although defendant points to slight discrepancies between the

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

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

(no plain error if the misstatements did not

27 contribute to the defendant’s conviction and the jury heard

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

occurred at both the Fountain Mesa and Arvada locations, the

prosecutor’s statements were reasonable evidentiary inferences.

2. Sergeant Racine’s Testimony

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

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

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

closet in the living room.”

¶ 59 During closing argument, the prosecutor said:

When they conduct the search they find assault rifles and the shotgun in the attic. Not locked up in a safe. Not even wrapped up in blankets or some duffle bags but exposed in the open. One of the bedrooms that [defendant] himself says he put them. But now they are open. And a shotgun in the living room.

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

statements were based on reasonable evidentiary inferences.

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

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

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

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

is not a material difference.

3. M.S. Testimony

¶ 61 Defendant points to the following statements by the prosecutor

as mischaracterizing M.S.’s testimony:

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

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

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

stolen firearms, whereas he “only provided the address at

Arvada apartment”;

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

testified he saw them “on September 24.”

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

discrepancies between the evidence and closing argument.”

Bondsteel, ¶ 138; see also People v. Williams,

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

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

establishing the exact amount, was not “so prejudicial when

considered in the context of the entire closing argument as to

constitute plain error”).

29 4. Knowing Possession of a Firearm

¶ 63 The trial court instructed the jury:

“POSSESSION” as used in these instructions, does not necessarily mean ownership, but does mean the actual, physical possession, or the immediate and knowing dominion or control over the object or the thing allegedly possessed. “Possession” need not be exclusive, provided that each possessor, should there be more than one, actually knew of the presence of the object, or thing possessed and exercised actual physical control or immediate, knowing dominion or control over it.

Defendant argues that, contrary to this instruction, the prosecutor

“made numerous erroneous statements regarding the knowing

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

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

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

¶ 64 For example, the prosecutor told the jury:

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

prove that he possessed it exclusive of everyone else.

Everybody in the room with that shotgun, under this definition

for this crime is possessing that firearm.”

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

possessor, should there be more, actually knew of the

presence of the object.”

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

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

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

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

physical control of the firearm.” Beckett v. People,

(Colo. 1990) (quoting People v. Garcia,

,

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

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

not accurately state the law.

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

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

Tramaglino,

(Colo. App. 1989) (evidence

was sufficient to support POWPO conviction where eyewitness

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

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

Rivera,

(Colo. App. 1988) (evidence was

sufficient to support the defendant’s POWPO conviction where he

31 accompanied his wife and assisted her with the purchase of a

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

other grounds,

(Colo. 1990).

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

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

necessarily mean ownership, but does mean actual physical

possession or the immediate and knowing dominion or control

over an object or thing allegedly possessed.”

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

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

in possession.”

 “It can’t be a hot potato.”

And the prosecutor mentioned the trial court’s instruction on

possession.

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

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

misstatements do not constitute plain error. See Strock,

(no plain error where misstatements were offset by the

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

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

32 during closing); see also People v. Kyle,

(Colo.

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

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

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

undermined the fundamental fairness of the trial as to cast serious

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

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

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

(Colo. App. 2009) (“We note that the number of

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

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

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

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

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

Weinreich,

(Colo. App. 2004) (“This argument,

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

(Colo. 2005).

V. Cumulative Error

¶ 70 Lastly, defendant contends the aggregate impact of numerous

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

33 error requires that numerous errors be committed, not merely

alleged. People v. Jones,

(Colo. App. 1982), aff’d sub

nom. People v. Curtis,

(Colo. 1984).

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

Whether plain errors can even be considered for cumulative error

purposes has not been resolved in Colorado. Compare United States

v. Nunez,

(7th Cir. 2008) (“When an appellant

alleges cumulative error, this Court will only consider plain errors

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

States v. Delgado,

(5th Cir. 2012) (“[P]lain-error

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

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

prong of plain-error review.”).

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

the possible but unpreserved errors in the prosecutor’s closing

argument — which were not plain — could have deprived defendant

of a fair trial. See Carter, ¶ 81.

VI. Conclusion

¶ 73 The judgment is affirmed.

JUDGE FOX concurs.

34 JUDGE NIETO specially concurs.

35 JUDGE NIETO, specially concurring.

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

conclude that defendant’s trial counsel waived any error regarding

the admission of the firearms into evidence, and would therefore

decline to review his contention.

¶ 75 Our supreme court has helpfully distinguished between waiver

and forfeiture in People v. Rediger,

. Waiver requires

“intentional relinquishment of a known right,”

at ¶ 39 (quoting

Dep’t of Health v. Donahue,

(Colo. 1984)), and

therefore does not involve errors resulting merely from oversight.

Moreover, such “intentional relinquishments” are not limited to

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

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

Horton v. Suthers,

(Colo. 2002) (collecting cases);

Hansen v. State Farm Mut. Auto. Ins. Co.,

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

instruction after trial court rejected its first tendered instruction, it

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

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

36 ¶ 76 By contrast, courts may still review an issue for plain error

when a litigant inadvertently relinquished it below through

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

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

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

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

instructions. Id. at ¶¶ 37-38.

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

intentionally relinquished his right to appeal the issue of whether

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

overlooked this possibility. In the context of the aforementioned

precedent, I would conclude that defendant waived the issue.

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

pointedly confronted with the possibility that the guns would be

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

This knowing and express acquiescence is not analogous to the

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

 Although Horton v. Suthers,

, 619 n.9 (Colo. 2002), noted that it should not be read as applying invited error to a mere “failure to object,” here defendant’s express statement of “no objection” to admitting the guns goes further than a mere “failure” and constitutes an “affirmative[] acquiesce[nce].”

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

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

physically present before counsel and the appearance of the

weapons was obvious. In voir dire, counsel questioned several

prospective jurors concerning their attitudes about firearms,

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

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

any CRE 403 objection he might have raised.

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

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

abandoned issue involves constitutional rights. People v. Curtis,

(Colo. 1984) (courts do not presume waiver of

fundamental constitutional rights). Here, unlike in Curtis and

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

issue involves the admission of admittedly relevant evidence that

defendant might have argued was unfairly prejudicial under CRE

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

consequence.

¶ 80 Hansen,

, is more analogous to the situation

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

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

defendant declined to redraft the instruction, and our supreme

court held that this declination constituted invited error. Similarly,

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

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

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

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

his contention.

39