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 May 23, 2019

No. 15CA1178, People v. Dominguez — Evidence — Hearsay — Verbal Acts — Opinions and Expert Testimony — Opinion by Lay Witnesses — Testimony by Experts

A division of the court of appeals considers whether the trial

court erred in admitting text messages discovered on the

defendant’s cell phone stating, among other messages, “Can you do

2 for 1500 if I got all of it” and “Can you do 2 for 1600.” The

division rejects the defendant’s argument that these text messages

constituted inadmissible hearsay, concluding, instead, that they

were admissible as verbal acts. The division also rejects the

defendant’s related due process and CRE 403 arguments related to

the text messages.

The division next agrees that the trial court erred in admitting

expert testimony from two police agents under the guise of lay witness testimony. But, it concludes that the admission of this

improper testimony was harmless given the overwhelming evidence

of defendant’s guilt presented at trial.

The division also rejects the defendant’s contention that the

prosecutor committed reversible misconduct during rebuttal closing

argument by misstating the law on reasonable doubt.

Last, the division concludes the defendant’s convictions for

reckless driving and vehicular eluding need not merge. Although

reckless driving is a lesser included offense of vehicular eluding, the

undisputed evidence showed that the defendant committed two

separate and temporally distinct instances of reckless driving, even

if not separately charged. So, under the circumstances here, the

trial court did not plainly err in not sua sponte merging these two

convictions. COLORADO COURT OF APPEALS

Court of Appeals No. 15CA1178 Jefferson County District Court No. 14CR1695 Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Anthony Dominguez,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division VII Opinion by JUDGE DUNN Márquez* and Miller*, JJ., concur

Announced May 23, 2019

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, 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 Brian Anthony Dominguez appeals the judgment of conviction

entered after a jury found him guilty of possession of a controlled

substance with intent to distribute, possession of drug

paraphernalia, vehicular eluding, reckless driving, and driving

under restraint. He also appeals his sentence. We affirm.

I. Background

¶2 While outside the home of his daughter’s grandmother,

Dominguez had a verbal altercation with the grandmother’s

relatives. One of the relatives called 911, and Dominguez drove

away at a high speed.

¶3 Agent Angela Garza later spotted Dominguez’s truck. After

following it for a short time, she attempted to initiate a traffic stop.

Dominguez accelerated away, and a high-speed chase ensued.

Agent Garza and other police agents ultimately stopped their

pursuit. But later, Agent Garza located Dominguez’s abandoned

truck. Police agents found Dominguez hiding nearby and arrested

him.

¶4 Agent Ryan Carmichael then searched Dominguez’s truck and

discovered the following items:

1 • a large bag containing 208 grams (almost half a pound) of

methamphetamine;

• a small bag containing 0.29 grams of methamphetamine;

• a small bag containing 0.47 grams of methamphetamine;

• a third small bag, which was empty;

• a small spoon “that appeared . . . to be the size used to

fill these smaller baggies”;

• an electronic scale with a “white substance” on it, which

was similar in color to the recovered methamphetamine;

• a cell phone;

• a glass smoking pipe; and

• used and unused syringes.

¶5 The prosecution charged Dominguez with possession of a

controlled substance with intent to distribute, possession of drug

paraphernalia, vehicular eluding, reckless driving, and driving

under restraint. 1 At trial, Dominguez conceded all but the

possession of a controlled substance with intent to distribute

1 The prosecution also charged Dominguez with aggravated motor vehicle theft, but the trial court granted Dominguez’s motion for judgment of acquittal on that count.

2 charge. The jury found Dominguez guilty of each count, and the

court sentenced him to twelve years in prison.

II. Text Messages

¶6 Dominguez primarily contends the trial court erred in

admitting text messages discovered on his cell phone because (1)

they were inadmissible hearsay; (2) their admission violated his

right to due process; and (3) they should have been excluded under

CRE 403. These errors, he argues, require the reversal of his

possession of a controlled substance with intent to distribute

conviction. We consider and reject each contention.

A. Additional Facts

¶7 Agent Carmichael testified that when he took the cell phone

from Dominguez’s truck and examined it, he saw text messages

that “concern[ed] [him].” He “relayed what [he] saw to . . . agents on

the West Metro Drug Task Force.”

¶8 Agent Adrian Alderete, a member of the West Metro Drug Task

Force, later testified that he executed a search warrant on the cell

phone and discovered a series of text messages sent to it over a

span of approximately two hours near the time of Dominguez’s

3 arrest. The prosecutor moved to admit a photograph of

Dominguez’s cell phone showing the following text messages:

• “[c]an you do 2 for 1500 if I got all of it”;

• “[y]our voicemail is full”;

• “[c]an you do that for me”;

• “[c]all me please”; and

• “[c]an you do 2 for 1600.”

¶9 Dominguez’s counsel objected, contending that the text

messages were inadmissible hearsay. In response, the prosecutor

argued that they were “not . . . statement[s] at all” but “in the

nature of . . . verbal act[s],” so “hearsay doesn’t apply.”

¶ 10 The court overruled the objection, concluding that the text

messages were not hearsay. It explained, “While arguably the texts

are communicative in nature and an inference can be drawn from

them, the Court would find that they are not assertions. None of

the messages on that screen are assertions. They are all inquiries

or questions.”

B. Hearsay

¶ 11 Dominguez says this was reversible error. He argues that the

text messages constituted inadmissible hearsay because they were

4 offered for the truth of the matter “impliedly asserted” in them —

that he “was a drug dealer.” 2 We disagree.

1. Standard of Review

¶ 12 The parties agree that Dominguez preserved this issue but

dispute the standard by which we review it. Dominguez argues for

de novo review, contending that “whether evidence is hearsay

presents a legal question.” The People respond that whether the

court erred in admitting evidence is reviewed for an abuse of

discretion.

¶ 13 The People are correct that we review a trial court’s evidentiary

ruling for an abuse of discretion. People v. Phillips,

; see also People v. Cohen,

. In determining

if the court abused its discretion, however, we not only consider

whether the court’s ruling was manifestly arbitrary, unreasonable,

or unfair, but also whether its ruling was contrary to the law.

People v. Jackson,

. This latter question does

2 In making this argument, Dominguez addresses the text messages together, indicating that a “statement-by-statement analysis is unhelpful.” The People, too, generally analyze them together. Accordingly, we do not conduct a separate analysis for each text message, but instead review them as one.

5 not require deference to the trial court. Instead, the trial court’s

application or interpretation of the law when making an evidentiary

ruling is a question of law we review de novo. See People v. Reed,

(Colo. App. 2008); see also E-470 Pub. Highway

Auth. v. 455 Co.,

(Colo. 2000); Sos v. Roaring Fork

Transp. Auth.,

, ¶ 48.

¶ 14 We therefore review de novo the trial court’s application of

hearsay law, but, absent a misapplication of the law, the decision to

admit evidence remains in the court’s broad discretion. See

Phillips, ¶ 63; see also Danko v. Conyers,

.

2. Discussion

¶ 15 Barring application of an exception, hearsay is inadmissible.

CRE 802; People v. Glover,

. Hearsay is an

out-of-court statement “offered in evidence to prove the truth of the

matter asserted.” CRE 801(c); Phillips, ¶ 61. A statement is defined

as “(1) an oral or written assertion or (2) nonverbal conduct of a

person, if it is intended by him to be communicative.” CRE 801(a).

¶ 16 The evidentiary rules do not define “assertion,” leading courts

to struggle with whether an implied assertion falls within the

hearsay definition. A division of this court identified this “classic

6 dilemma” in People v. Griffin,

(Colo. App. 1998).

There, the division explained the “dilemma is how to treat a

statement or conduct by a person out of court, not subject to

cross-examination at trial, described by a witness at trial, from

which a fact finder could infer a separate fact.”

¶ 17 Griffin stated that CRE 801(a) “resolves the dilemma by

focusing solely on whether the assertion or conduct by the

out-of-court witness was intended to imply to the testifying witness

a separate fact in question at trial.”

; see also Fed. R.

Evid. 801 advisory committee’s note (The definition of a statement

under the federal counterpart to CRE 801 excludes “from the

operation of the hearsay rule all evidence of conduct, verbal or

nonverbal, not intended as an assertion. The key to the definition

is that nothing is an assertion unless intended to be one.”).

¶ 18 Dominguez takes issue with Griffin’s intent-based approach.

He argues it is based on an interpretation of the commentary in

Fed. R. Evid. 801, which is not included in CRE 801. Further, he

notes that courts in other jurisdictions have criticized the federal

view. See, e.g., State v. Dullard,

(Iowa

2003). But see Hernandez v. State,

(Fla. Dist.

7 Ct. App. 2004) (applying the intent-based approach); State v.

Carrillo,

(Ariz. Ct. App. 1987) (same), aff’d in

part, vacated in part on other grounds,

(Ariz. 1988).

¶ 19 We need not revisit Griffin here. This is so because we

conclude that the text messages were properly admitted verbal acts

(as argued by the prosecution at trial), which are not hearsay. See

People v. Thompson,

; People v. Scearce,

(Colo. App. 2003); see also United States v.

Rodriguez-Lopez,

(6th Cir. 2009).

¶ 20 “A verbal act is an utterance of an operative fact that gives rise

to legal consequences.” Scearce,

(citation omitted).

It’s offered not for its truth, but to show that it was made.

Thompson, ¶ 135. Thus, verbal acts aren’t hearsay. Id.; Scearce,

; see also United States v. Montana,

(7th Cir. 1999) (“Performative utterances are not within the

scope of the hearsay rule, because they do not make any truth

claims.”).

¶ 21 The text messages sent to Dominguez’s cell phone don’t make

any truth claims; rather, they suggest a request to purchase

something at a proposed price. Such statements have a legal effect

8 regardless of their truth. See Scearce,

(recognizing

examples of a verbal act include oral utterances constituting the

offer and acceptance for a contract); see also Cloverland-Green

Spring Dairies, Inc. v. Pa. Milk Mktg. Bd.,

, 218 n.20 (3d

Cir. 2002) (“[A] statement offering to sell a product at a particular

price is a ‘verbal act,’ not hearsay, because the statement itself has

legal effect.”); Little v. State,

(Md. 1954)

(recognizing that the “verbal act of taking a bet” was not

inadmissible hearsay); 5 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 801.11(3) (2d ed. 2018) (examples of

a verbal act include contract offers and illegal solicitations).

¶ 22 Even more to the point, “the purchase of a drug, legally or

illegally, is a form of contract.” Garner v. State,

(Md. 2010) (citation omitted). And, “[t]he . . . words of [a] . . .

would-be [drug] purchaser are . . . categorized . . . as verbal parts of

acts . . . [that] are not considered to be assertions and do not fall

under the scrutiny of the Rules Against Hearsay.”

(citation

omitted).

¶ 23 Like similar offers or solicitations, the text messages were not

admitted here for the truth of the matter being asserted in them

9 (whether Dominguez could do “2 for 1500” or “2 for 1600”) or the

truth of their arguably implied assertion (that Dominguez was

someone who could provide “2 for 1500” or “2 for 1600”), but for the

fact that a request to purchase something at a proposed price was

made, which is not hearsay.

(concluding that an

unidentified caller’s out-of-court statement asking, “[C]an I get a

40?” (a request to purchase cocaine) was admissible as a verbal

act); see Rodriguez-Lopez,

(noting that evidence of

“ten successive solicitations for heroin” received by the defendant

was not offered “for [its] truth, but as evidence of the fact that [the

solicitations] were made”); cf. State v. Chavez,

(Ariz. Ct. App. 2010) (holding that text messages seeking to

purchase drugs (“Can you deliver a ‘T’ to the house?”) were

admissible because they were not offered to prove the truth of the

matter asserted); State v. Connally,

(Haw.

1995) (concluding that statements that the defendant would

perform sex acts for money were “verbal acts” and not offered to

prove the truth of the matter asserted).

10 ¶ 24 We therefore conclude that the trial court did not err in finding

the text messages were not assertions under CRE 801 and thus

admissible.

C. Due Process

¶ 25 Dominguez alternatively contends that “[i]f CRE 801 aligns

Colorado with the federal intent-based approach, then . . . the rule,

as applied, violates his due process rights.” This is so, he

continues, because, under federal law, the burden is on the party

claiming an intended assertion to show that intent, which,

according to Dominguez, is fundamentally unfair and amounts to

burden shifting.

¶ 26 Dominguez did not make this argument to the trial court and

it is thus unpreserved. See Reyna-Abarca v. People,

. But because we do not rely on the intent-based approach in

concluding that the trial court did not err in admitting the text

messages, we need not consider Dominguez’s due process

contention.

D. CRE 403

¶ 27 Dominguez also contends that the trial court’s admission of

the text messages violated CRE 403. More specifically, he argues

11 the prejudice from the text messages substantially outweighed their

probative value because the probative value depended on

speculative assumptions which served to prejudice, confuse, or

mislead the jury. We disagree.

¶ 28 Dominguez did not object to the admission of the text

messages under CRE 403. We thus review for plain error. People v.

Allgier,

. We will not reverse under this

standard unless the error was obvious and so undermined the

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

the reliability of the judgment of conviction. Id.; accord Hagos v.

People,

, ¶ 14.

¶ 29 CRE 403 strongly favors the admission of evidence. People v.

Greenlee,

(Colo. 2009). But “[e]ven relevant

evidence is excludable if it is ‘unfairly’ prejudicial . . . .” People v.

Brown,

(Colo. App. 2011) (citation omitted). To

be excluded, “the danger of unfair prejudice must substantially

outweigh the legitimate probative value of the evidence.” People v.

James,

(Colo. App. 2004).

¶ 30 In reviewing the disputed evidence, we “must afford [it] the

maximum probative value attributable by a reasonable fact finder

12 and the minimum unfair prejudice to be reasonably expected.”

People v. Gibbens,

(Colo. 1995). Evidence is not

unfairly prejudicial “simply because it damages the defendant’s

case” but, instead, must have 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).

¶ 31 Nothing in the text messages here was inflammatory or incited

the jury to render a verdict on an improper basis. The text

messages plainly suggest an offer to purchase “2 for 1500” or “2 for

1600,” and giving these messages their maximum probative value,

such a solicitation was relevant to the charged crimes. While the

texts may have hurt Dominguez’s defense, we don’t agree that they

were unfairly prejudicial.

¶ 32 We are unpersuaded by Dominguez’s contention that People v.

Franklin,

(Colo. App. 1989), requires a different

result. In Franklin, a prosecution witness testified that “just before

the [charged] shooting, he tried to follow the victim out the front

door but was prevented from doing so by an ‘unnamed man’ who

had been seen talking to defendant,” and this man “told the

13 witness, ‘Now is not a good time to go out,’ then counted off three

shots as they were fired.”

. Given that the probative

value of these statements “follows only if a number of speculative

assumptions about the statements [were] made,” the division held

that “they could only have served to prejudice, confuse, or mislead

the jury,” and concluded that they were inadmissible under CRE

403.

.

¶ 33 Unlike the statements in Franklin, we don’t agree that the text

messages, sent directly to Dominguez’s cell phone, required “a

number of speculative assumptions” that rendered them unfairly

prejudicial under CRE 403. Thus, we perceive no error, let alone

plain error, in the admission of the text messages.

III. Lay Witness Testimony

¶ 34 Agents Carmichael and Alderete testified at trial. The

prosecution didn’t qualify either as an expert witness. Dominguez

contends that the trial court erred in allowing them to offer expert

testimony under the guise of lay testimony. We see no reversible

error.

14 A. Additional Facts

¶ 35 The prosecutor asked Agent Carmichael why he had taken the

electronic scale from Dominguez’s truck. Dominguez’s counsel

objected, arguing that the question “calls for an expert opinion.”

The court overruled the objection, and Agent Carmichael testified,

“[f]rom [his] training and experience, [he] kn[e]w that electronic

scales are often used to weigh drugs in order to distribute drugs.

You can see on this scale that there is a white substance on the

scale. This is consistent with a scale used for drug distribution.”

¶ 36 Later, the prosecutor asked Agent Alderete about the

“significance” of the text messages “2 for 1500” and “2 for 1600”

found on Dominguez’s cell phone. Dominguez’s counsel objected

“to that as expert testimony.” In response, the court instructed the

prosecutor to “[l]ay further foundation.” After discussing Agent

Alderete’s police training and experience with the West Metro Drug

Task Force, the prosecutor again asked, “so based on your training

and experience, . . . what, if any, significance did [these] [text]

message[s] have to you?”

¶ 37 Over Dominguez’s counsel’s renewed objection, Agent Alderete

testified,

15 So in speaking about methamphetamine, . . . it would lead [him] to believe . . . that this person is asking for 2 ounces of methamphetamine. An ounce of methamphetamine runs, on the low end, . . . about $500; on the high end, you might pay a thousand, 1100. So this fits right in that range of a couple of ounces of methamphetamine.

¶ 38 Agent Alderete later testified, without objection, that over an

ounce of methamphetamine was “[n]ot typically . . . what we see” for

personal use. And, regarding requests for the purchase of

methamphetamine, he testified, again without objection, “[t]ypically

if you have a customer you deal with all the time and you start

talking numbers, it’s known. It’s very rare for somebody to say

methamphetamine, cocaine, heroin. There’s always code words.

Most of the time there’s code words that are sent.”

B. Standard of Review and Applicable Law

¶ 39 A lay witness may testify “in the form of . . . opinions or

inferences which are (a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’[s]

testimony or the determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized knowledge.” CRE 701.

But when a witness’s testimony requires scientific, technical, or

16 specialized knowledge, the witness must be qualified as an expert

by virtue of his “knowledge, skill, experience, training, or

education.” CRE 702.

¶ 40 To determine whether a witness’s testimony constitutes a lay

opinion under CRE 701 or an expert opinion under CRE 702, we

look to “the basis for the witness’s opinion.” Venalonzo v. People,

. If the testimony is expected “to be based on an

ordinary person’s experiences or knowledge, then the witness is

offering lay testimony.” Id. at ¶ 23. But when the witness’s

testimony “could not be offered without specialized experiences,

knowledge, or training, then the witness is offering expert

testimony.” Id.

¶ 41 We review a trial court’s rulings admitting witness testimony

for an abuse of discretion. People v. Bryant,

.

C. Discussion

¶ 42 Given that Agent Carmichael’s opinion on the electronic scale

was expressly based on his “training and experience,” we agree that

this was an expert opinion. See People v. Stewart,

(Colo. 2002) (holding that where “an officer’s testimony is based not

only on her perceptions and observations of the crime scene, but

17 also on her specialized training or education, she must be properly

qualified as an expert before offering testimony that amounts to

expert testimony”); see also People v. Kubuugu,

(concluding that a police officer’s opinion testimony based on “his

training and experience” constituted expert testimony).

¶ 43 Agent Alderete’s opinions regarding the price range for

methamphetamine, the amount of methamphetamine for personal

use, and use of code words when purchasing methamphetamine,

offered after he testified at length regarding his training and

experience with the drug task force, were also improper expert

opinions. See Kubuugu, ¶ 14; Stewart,

; see also

Bryant, ¶ 64 (“A hallmark of expert testimony by law enforcement

officers is that an officer testifies as to his extensive experience in

the field.”); People v. Veren,

(Colo. App. 2005)

(concluding that the police officers’s testimony that “possession of a

large amount of nonprescription pseudoephedrine is indicative of a

person’s intent” to manufacture methamphetamine was expert

testimony).

¶ 44 We aren’t persuaded otherwise by the People’s contention that

Agents Carmichael’s and Alderete’s opinions were within an

18 ordinary person’s knowledge because of news coverage and

mainstream entertainment (including fictional television shows)

that have discussed or dramatized drug distribution. While such

topics may be generally more prevalent in our society, we can’t

agree that Agents Carmichael’s and Alderete’s opinions, admittedly

based on their specialized police training and experience,

encompass an ordinary person’s experiences or knowledge.

¶ 45 Because the agents gave expert testimony under the guise of

lay testimony, we conclude the trial court abused its discretion in

admitting it. See Kubuugu, ¶ 14; Stewart,

.

¶ 46 Reversal, however, is required only if the improper expert

testimony substantially influenced the verdict or affected the

fairness of the proceedings. 3 Hagos, ¶ 12; Stewart,

.

“[T]he strength of the properly admitted evidence supporting the

guilty verdict is clearly an ‘important consideration’ in the harmless

3 We recognize that Dominguez did not object to Agent Alderete’s testimony on personal use and code words and that the People dispute Dominguez’s preservation of his objection to Agent Carmichael’s testimony. But because we conclude that the admission of these improper statements was harmless, we need not determine this preservation issue or conduct a separate plain error analysis.

19 error analysis.” Pernell v. People,

(citation

omitted). So, when the evidence overwhelmingly shows guilt, an

error is generally harmless.

That occurred here.

¶ 47 Dominguez defended against the possession of a controlled

substance with intent to distribute count on the theory that he had

no intent to distribute the methamphetamine.4 But overwhelming

evidence showed otherwise.

¶ 48 Dominguez possessed a bag with nearly half a pound of

methamphetamine, small bags containing less than one gram of

methamphetamine, a small spoon “that appeared . . . to be the size

used to fill these smaller baggies,” and an electronic scale with a

white substance on it. As well, the properly admitted text messages

circumstantially supported the inference that Dominguez

distributed drugs.

¶ 49 Of even greater consequence, Dominguez’s own statements

demonstrated an intent to distribute methamphetamine. First,

following his arrest, Dominguez admitted to a police agent that the

4At trial, Dominguez conceded guilt on the possession of drug paraphernalia, vehicular eluding, reckless driving, and driving under restraint counts. And he does not contend that the improper expert testimony requires the reversal of these convictions.

20 methamphetamine “cost him $4,000” but that “a bag that size

would cost $6,800 on the street.” This testimony also rendered

Agent Alderete’s testimony on the price range for methamphetamine

cumulative, as Dominguez’s estimate equates to $850 per ounce,

which is in the price range described by Agent Alderete. See

Bryant, ¶ 77 (finding the admission of improper expert testimony

harmless where it was cumulative of other evidence admitted at

trial).

¶ 50 Second, in a recorded jail call, Dominguez told an unidentified

female that he (1) was going to give her “some information that’s

gonna be useful”; (2) had “$11,000 out there”; (3) had put “all the

numbers together and it [came] out to $11,000 not including what

they found in the truck”; (4) was going to send her a “list” that

showed how to “get ahold of everybody”; and (5) had received a text

message from “Cash” before his arrest saying that he needed

Dominguez to come over because he had “someone who was

looking.”

¶ 51 Given all this evidence, we can’t agree with Dominguez that

the agents’s limited testimony about the electronic scale, price

range for methamphetamine, drug quantities for personal use, and

21 the use of code words substantially influenced the verdict or

affected the fairness of the trial. See Stewart,

(holding improper admission of police officers’s expert testimony

harmless given the overwhelming evidence of guilt); see also People

v. Froehler,

; cf. Kubuugu, ¶ 16 (concluding that

improperly admitted expert testimony was not harmless error when

that testimony “was the only evidence that specifically refuted” the

defendant’s exculpatory testimony).

¶ 52 We therefore conclude that Agents Carmichael’s and Alderete’s

improperly admitted expert testimony was harmless.

IV. Prosecutorial Misconduct

¶ 53 Dominguez next contends the prosecutor committed reversible

misconduct in rebuttal closing argument. We are not persuaded.

¶ 54 The court correctly instructed the jury before closing argument

that

reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

22 ¶ 55 During rebuttal closing argument, the prosecutor made the

following comment on this instruction:

Whether it’s such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves, and you can each individually think, what would be a matter of importance to myself, maybe a major life decision, maybe a major purchase. Whatever it is that would be a matter of importance to yourself, would you hesitate.

Well, of course you would. Nobody makes snap decisions about something that’s important to them or important decisions. . . . Do you not act, because if it’s that kind of a doubt, that’s a reasonable doubt.

(Emphasis added.)

¶ 56 Dominguez contends this comment “redefin[ed] ‘reasonable

doubt’” and warrants reversal. Because his attorney did not object

to the comment, we review for plain error. See People v. Ujaama,

. To be plain, the error must be (1) obvious and

(2) so grave that it casts serious doubt on the reliability of the

judgment of conviction. Id. at ¶ 43.

¶ 57 Even if we assume (without deciding) that the prosecutor

misstated the law on reasonable doubt, see People v. Van Meter,

23

, we conclude reversal is not warranted for two

reasons.

¶ 58 First, the prosecutor’s reasonable doubt comment occurred

only once during rebuttal closing argument, and it was not

repeated. See People v. Carter,

-2, ¶ 60 (finding no

plain error in prosecutor’s brief improper comment on reasonable

doubt standard); see also People v. Grant,

(Colo.

App. 2007) (concluding that the prosecutor’s one brief misstatement

of the law in closing argument did not constitute plain error).

¶ 59 Second, the trial court correctly instructed the jury orally and

in writing on reasonable doubt, “neutraliz[ing]” the prosecutor’s

improper comment. People v. Santana,

(Colo.

2011). And before making the rebuttal comment, the prosecutor

referred to this instruction. Absent record evidence to the contrary,

we presume that the jury followed the court’s instruction. See Van

Meter, ¶ 33; Carter, ¶ 59.

¶ 60 For these reasons, we see no plain error in the prosecutor’s

single reasonable doubt comment.

24 V. Merger

¶ 61 Last, Dominguez contends that, as a lesser included offense,

his reckless driving conviction must merge with his vehicular

eluding conviction. Under the circumstances here, we don’t agree.

¶ 62 Dominguez didn’t preserve this issue, so we review for plain

error. Reyna-Abarca, ¶ 47.

¶ 63 The Double Jeopardy Clauses of the United States and

Colorado Constitutions protect a defendant from suffering multiple

punishments for the same offense. U.S. Const. amend. V; Colo.

Const. art. II, § 18; Reyna-Abarca, ¶ 49. A defendant, therefore,

may not be convicted of a lesser included offense when “the

elements of the lesser offense are a subset of the elements of the

greater offense, such that the lesser offense contains only elements

that are also included in the elements of the greater offense.”

Reyna-Abarca, ¶ 64; see also Jackson, ¶ 73. But “[m]ultiple

convictions for two separate offenses the elements of one of which

constitute a subset of the elements of the other can clearly stand if

the offenses were committed by distinctly different conduct.” People

v. Rock,

; accord Jackson, ¶ 73.

25 ¶ 64 “A person who drives a motor vehicle . . . in such a manner as

to indicate either a wanton or a willful disregard for the safety of

persons or property is guilty of reckless driving.” § 42-4-1401(1),

C.R.S. 2018. “[R]eckless driving is a lesser included offense of

vehicular eluding.” People v. Esparza-Treto,

(Colo. App. 2011); see also § 18-9-116.5(1), C.R.S. 2018 (elements

of vehicular eluding).

¶ 65 But, here, the undisputed evidence shows that, though not

separately charged, Dominguez committed two separate and

temporally distinct instances of reckless driving. Cf. Rock, ¶ 17

(“Separate convictions for even the same offense are permissible if it

was committed more than once.”); Jackson, ¶ 82 (recognizing that,

to determine whether separate offenses were committed, “we

examine whether the conduct occurred at different locations, was

the product of new volitional departures, was separated by time, or

was separated by intervening events”).

¶ 66 In opening statements, Dominguez’s counsel told the jury that

at the house of Dominguez’s daughter’s grandmother, “Dominguez

sped off driving recklessly without his license and got into the chase

with the police.”

26 ¶ 67 Consistent with Dominguez’s attorney’s opening statement,

the prosecution presented evidence of two distinct reckless driving

incidents. First, testimony about Dominguez leaving the home of

his daughter’s grandmother established the following:

• Dominguez “took off at a very high rate of speed, and he

didn’t stop. There’s a stop sign at the bottom of [the] hill,

and he hit the dip[s] . . . and everything just came flying

out of the truck and landed back down.”

• Dominguez “sped off . . . and when he did that, he hit the

dip of a hill . . . and nearly flipped the truck.”

• He was driving “[r]ecklessly and fast.”

• “He placed the vehicle in drive[,] floored it[,] took off, and

hit the dip at the bottom of . . . the hill and almost rolled

the truck there. The truck went on two wheels spun

around, fishtailed for a while and then he straightened it

out and continued on.”

¶ 68 Second, Agent Garza testified that she later saw Dominguez’s

truck pull up beside her and that she followed the truck for a short

time in traffic before attempting a traffic stop. She stated only at

that point did Dominguez “accelerate” and “pull[] away from” her.

27 She described Dominguez driving fifteen to almost forty miles per

hour over the speed limit, weaving around other cars, and driving in

the median.

¶ 69 With respect to the two incidents, in closing argument

Dominguez’s counsel told the jury, “you heard the evidence, he

peeled away from the house” and after the agents activated their

sirens, he “led them on a high-speed chase.”

¶ 70 Thus, the jury heard evidence (not disputed by Dominguez)

that he recklessly drove away from his daughter’s grandmother’s

house and then, at some later point and in a different location,

recklessly led the police on a high-speed chase. Given the break in

time and space between these two reckless driving incidents, the

undisputed evidence supported “distinctly different conduct”

between the reckless driving and vehicular eluding convictions.

¶ 71 We therefore can’t conclude that the trial court plainly erred in

not sua sponte merging these convictions. See Rock, ¶ 17; cf.

People v. Gingles,

(concluding that because the

evidence supported two separate convictions, there was no double

jeopardy violation).

28 VI. Conclusion

¶ 72 We affirm the judgment of conviction and sentence.

JUDGE MÁRQUEZ and JUDGE MILLER concur.

29