Peo v. Kraaz
Peo v. Kraaz
Peo v. Kraaz
Opinion
19CA1573 Peo v Kraaz 10-07-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA1573
City and County of Denver District Court No. 18CR4171
Honorable Michael J. Vallejos, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jaymi L. Kraaz,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE BERGER
Román and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 7, 2021
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado for
Defendant-Appellant
1
¶ 1 Jaymi L. Kraaz, defendant, appeals her convictions for first
and second degree aggravated motor vehicle theft. We reject her
challenge to the sufficiency of the evidence. But we agree that the
prosecutor committed misconduct during voir dire by indoctrinating
jurors with the prosecution’s theory of the case and also by
obtaining commitments for a guilty verdict. On plain error review,
we conclude that the misconduct casts serious doubt on the
reliability of Kraaz’s convictions, so we reverse and remand for a
new trial.
I. Relevant Facts and Procedural History
¶ 2 The prosecution’s evidence allowed the jury to find the
following facts. Kraaz rented a car through “Fluid Market,” a
car-sharing application, from May 7, 2018, through May 11, 2018.
Using the app, Kraaz created an account, uploaded her driver’s
license, and selected a car. Kraaz agreed to Fluid Market’s terms
and conditions, which forbade anyone except her from driving the
car and warned that she could be criminally prosecuted if she did
not return the car on time. Kraaz never returned the car.
¶ 3 Fluid Market’s account manager waited until May 13, 2018, to
contact Kraaz about the car because the company “usually wait[s]
2
48 hours for them to get back.” The court admitted the following
text message conversation between Kraaz and the account
manager:
[Account manager]: this is Liz from fluid I need
you to return my Toyota ASAP I am going to
report it stolen if I don’t hear from you in the
next hour
[Kraaz]: Liz I apologize . . . I have been
camping without my phone. Trying to extend
on the app. & pay the late fee.
[Account manager]: Send me a picture of the
pickup and drop-off fuel in mileage and the
reservation and start a new one
Or when can you return it
Let me know when you are planning on
returning the car asap
[Kraaz]: We leaving Gunnison. Will return by
noon tomorrow. Will start a new reservation.
When on wifi. Gonna stop soon.
The account manager texted Kraaz over the next two days,
demanding that she return the car and threatening to report it
stolen. Kraaz did not respond until May 16, 2018:
[Kraaz]: I am so sorry. I will be touch [sic]
soon & pay whatever amount needed . . . i
have had some unforeseen tragedies take place
the past couple days . . . i promise i am not
trying to get over on you at all im [sic] trying to
get it returned asap[.]
3
Later that day, Kraaz texted the account manager that someone else
had the car. The manager responded, “[h]e just called us and said
you have the car. We need it back asap. You rented the car and
everything is under your name.” Kraaz texted back, denying that
she had the car or that she ever had the car. Kraaz and the
account manager continued texting about the car for a few days.
Then Kraaz stopped responding.
¶ 4 Fluid Market’s owner filed a police report for theft of the
vehicle. Eventually, the car was found in Minnesota.
¶ 5 The prosecution charged Kraaz with first and second degree
aggravated motor vehicle theft. See § 18-4-409(2)(a), (4), C.R.S.
2020. At trial, Kraaz’s defense was that someone stole the car from
her (either the man who called the account manager or his friend).
The jury convicted Kraaz on both counts.
II. Sufficiency of the Evidence
¶ 6 Kraaz first contends that insufficient evidence supports her
convictions. We address this argument because a reversal due to
insufficient evidence “may preclude retrial” on double jeopardy
Marciano, 2014 COA 92M-2, ¶ 42).
4
A. Law
¶ 7 We review the sufficiency of the evidence de novo “to determine
whether the evidence before the jury was sufficient both in quantity
and quality to sustain the defendant’s conviction.” Clark v. People,
232 P.3d 1287, 1291 (Colo. 2010).
¶ 8 Our inquiry is whether the direct and circumstantial evidence,
when viewed as a whole and in the light most favorable to the
prosecution, is sufficient to support a conclusion by a reasonable
fact finder that Kraaz is guilty beyond a reasonable doubt. Id. “We
do not sit as a thirteenth juror to determine the weight of the
evidence presented to the jury.” Id. at 1293. Instead, “it is for the
fact finder to determine the difficult questions of witness credibility
and the weight to be given to conflicting items of evidence.” People
v. Kessler, 2018 COA 60, ¶ 12.
¶ 9 “[I]f there is evidence upon which one may reasonably infer an
element of the crime, the evidence is sufficient to sustain that
element.” Id. (citation omitted). Additionally, “an actor’s state of
mind is normally not subject to direct proof and must be inferred
from his or her actions and the circumstances surrounding the
occurrence.” Id.
5
B. Application
¶ 10 A person commits aggravated motor vehicle theft in the second
degree if she “knowingly obtains or exercises control over the motor
vehicle of another without authorization.” § 18-4-409(2), (4). As
pertinent here, aggravated motor vehicle theft in the first degree
requires the prosecution to prove the additional element that the
defendant “[r]etain[ed] possession or control of the motor vehicle for
more than twenty-four hours.” § 18-4-409(2)(a).
¶ 11 Kraaz argues that there is no evidence that she knowingly
exercised unauthorized possession or control of the car for a
twenty-four-hour period. Specifically, she argues that May 14 is the
earliest her possession could have been unauthorized, based on the
account manager’s testimony that she usually waited forty-eight
hours before inquiring about missing vehicles. Even accepting
Kraaz’s doubtful premise that she had authority to use the car
through May 13, we reject her sufficiency argument.
¶ 12 A photo of Kraaz’s driver’s license was uploaded to her Fluid
Market profile. Her phone number was listed in the profile. Fluid
Market’s owner testified that Kraaz rented the car through the app
on May 7. The vehicle was due back on May 11.
6
¶ 13 On May 13, Kraaz had not returned the car. The account
manager texted Kraaz that day, demanding that she return the car.
Kraaz texted back that she was sorry and that she “will return by
noon tomorrow.” A reasonable juror could infer that Kraaz had the
car at this point.
¶ 14 Three days later, on May 16, Kraaz again apologized and said
she is “trying to get it returned asap.” After Kraaz brought up the
possibility that someone else had the car, the manager texted her,
“he just called us and said you have the car. We need it back asap.
You rented the car and everything is under your name.”
1
(Emphasis added.) A reasonable fact finder could infer from Kraaz’s
texts, the manager’s texts, and the alternate suspect’s statement,
that Kraaz still had possession of the car on May 16.
¶ 15 Therefore, a reasonable jury could have concluded that Kraaz
knowingly exercised unauthorized possession or control of the car.
1
Kraaz does not argue on appeal that any of the text messages or
statements in the text messages were hearsay or otherwise
inadmissible. Even if she had, we would still consider the text
messages in our review of the sufficiency of the evidence. We
consider all evidence before the jury, properly or improperly
admitted, when determining whether the evidence was sufficient to
support the convictions. People v. Marciano, 2014 COA 92M-2,
¶ 47.
7
Additionally, a reasonable jury could have concluded that Kraaz
knowingly exercised unauthorized possession or control of the car
for more than a twenty-four hours (May 14 through May 16). Of
course, other conclusions and reasonable inferences are possible,
but we may not reweigh the evidence. Clark, 232 P.3d at 1291.
Viewing the evidence in the light most favorable to the prosecution,
the evidence was sufficient for a reasonable jury to find the
elements of first and second degree motor vehicle theft beyond a
reasonable doubt.
III. Prosecutorial Misconduct During Voir Dire
¶ 16 Kraaz next contends that prosecutorial misconduct during or
related to voir dire deprived her of a fair trial. Specifically, she
contends that the prosecutor used voir dire to
• indoctrinate the jury to the prosecution’s theory of the
case;
• commit the jury to a guilty verdict; and
• misrepresent the law.
She also contends that the prosecutor committed misconduct
during rebuttal closing argument by telling the jurors to honor their
commitments to return a guilty verdict.
8
¶ 17 With the exception of Kraaz’s argument that the prosecutor
misrepresented the law,
2
these arguments are unpreserved.
A. Standards of Review and Reversal
¶ 18 The scope of voir dire is within the discretion of the trial court.
People v. Saiz, 660 P.2d 2, 4 (Colo. App. 1982). “The propriety of
questions to potential jurors on voir dire is within the discretion of
the trial court.” People v. Collins, 730 P.2d 293, 300 (Colo. 1986).
¶ 19 We engage in a two-step analysis when 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 the misconduct warrants reversal under
the applicable standard. Id.
2
We reject the Attorney General’s contention that Kraaz did not
preserve the argument that the prosecutor misrepresented the law
during voir dire. Defense counsel objected during the prosecution’s
voir dire hypothetical, stating, “I believe there’s some confusion and
misstatement of the law. Could the Court educate the jury as to the
mens rea elements?” The court overruled the objection. “We do not
require that parties use ‘talismanic language’ to preserve particular
arguments for appeal.” People v. Melendez, 102 P.3d 315, 322
(Colo. 2004). The trial court need only be “presented with an
adequate opportunity to make findings of fact and conclusions of
law on any issue” before it. Id. That occurred here.
9
¶ 20 The standard of reversal for preserved claims of prosecutorial
misconduct is harmless error. People v. Rhea, 2014 COA 60, ¶ 42.
¶ 21 Unpreserved claims are forfeited. People v. Rediger, 2018 CO
32, ¶ 40. We review forfeited claims for plain error. Id.; see Crim.
P. 52(b). “[P]lain error review depends on the particular facts and
context of the given case, because only through an examination of
the totality of the circumstances can the appellate court deduce
whether error affected the fundamental fairness of the trial.” Wend,
235 P.3d at 1098.
¶ 22 “To constitute plain error, any prosecutorial misconduct ‘must
be flagrant or glaring or tremendously improper.’” People v. Bowers,
(Colo. App. 2004)); see also Domingo-Gomez v. People, 125 P.3d
1043, 1053 (Colo. 2005). Reversal is only warranted if the
misconduct “so undermine[d] the fundamental fairness of the trial
as to cast serious doubt on the reliability of the judgment of
“Factors to consider include the language used, the context in
which the statements were made, and the strength of the evidence
supporting the conviction.” Domingo-Gomez, 125 P.3d at 1053.
10
¶ 23 Unlike forfeiture, “waiver extinguishes error, and therefore
appellate review.” Rediger, ¶ 40. The Attorney General argues that
Kraaz waived her first argument (that the prosecution used voir dire
to educate the jury about its theory of the case) by not objecting.
¶ 24 We disagree. Waiver is “the intentional relinquishment of a
known right or privilege.” Id. at ¶ 39 (citation omitted) (emphasis in
original). The Attorney General does not cite any evidence that
Kraaz intended to waive her argument. Instead, we conclude that
Kraaz’s lack of objection to any of the extensive voir dire dialogue
was “the failure to make the timely assertion of a right,” which
constitutes forfeiture. Id. The Attorney General cites People v.
Shipman, 747 P.2d 1, 3 (Colo. App. 1987), in support of the waiver
argument, but that court of appeals case predates, and is
inconsistent with, the supreme court’s decision in Rediger.
¶ 25 The Attorney General also cites Crim. P. 24(b)(2) in support of
its waiver argument, but that rule is inapplicable. Crim. P. 24(b)(2)
states, “[a]ll matters pertaining to the qualifications and competency
of the prospective jurors shall be deemed waived by the parties if not
raised prior to the swearing in of the jury to try the case.”
(Emphasis added.) Kraaz does not argue that the jurors were
11
unqualified or incompetent. See § 13-71-105, C.R.S. 2020
(detailing juror qualifications). Instead, she argues that the
prosecutor committed reversible misconduct. Crim. P. 24(b)(2) is
therefore inapposite. Kraaz’s claim was not waived.
B. Additional Facts
¶ 26 The court gave each side thirty minutes to conduct voir dire.
The prosecutor spent her allotted time almost entirely on a
hypothetical involving a library patron with an overdue book.
3
The
following lengthy colloquy is a sample of the prosecutor’s voir dire:
[Prosecutor]: imagine [your sister] did work for
a public library. [Library patron] comes in.
She checks out a book. It’s a rare book, but
your sister knows her very well. . . . She
checks that book out for about two weeks, and
two weeks come and go, and [library patron]
hasn’t returned the book. Your sister calls
her, leaves her a voicemail. She calls her. She
doesn’t answer. She leaves a voicemail and
says please return my book. She does that for
three straight days. Never gets an answer. At
that point, in your opinion, has she stolen the
book from the library?
3
The prosecutor began voir dire with one unrelated question (Who
is “excited to do jury service?”), received two answers, and then
used the rest of her time to question the jurors about the
overdue-library-book hypothetical.
12
[Prospective Juror]: I’d like to think she hasn’t
and misplaced it; but probably, technically,
yes.
[Prosecutor]: She’s not responding. That’s all
you know. It’s past the due date. In your
opinion, that would be theft at that point?
[Prospective Juror]: Yes.
[Prosecutor]: Without more information?
[Prospective Juror]: Yes.
[Prosecutor]: So let’s say now then that she
does call back, and she says I’m so sorry. My
dog just died. I’ve been struggling a little bit.
Can I bring it back in two days, and your sister
says sure. She waits those two days. . . . She
didn’t come back. She didn’t bring the book
back. At that point, are we for sure that’s theft
in your mind?
[Prospective Juror]: Technically, yes.
[Prosecutor]: What about the technical part?
Do you feel sorry for her?
[Prospective Juror]: Of course I feel sorry for
her. All of these other things are happening in
her world, but she’s had some warnings.
[Prosecutor]: So let’s just say [library patron]
was sitting over here, that she was charged
with theft. That was the scenario. Could you
find her guilty of theft?
[Prospective Juror]: Technically, yes.
[Prosecutor]: Would you feel sympathetic
towards her given what’s happened with her
13
dog? Maybe there’s some other personal
things going on that you don’t know about.
Would you then kind of feel bad about finding
her guilty?
[Prospective Juror]: Yes.
[Prosecutor]: Would you to the point of finding
her not guilty because of her situation with the
dog?
[Prospective Juror]: No.
(Emphasis added.)
¶ 27 Later, while questioning a different prospective juror, the
prosecutor expanded the hypothetical:
[Prosecutor]: So let’s say she does call back,
and this is a week later after the due date and
says actually my — I lent the book to my
husband. Actually, now we’re getting divorced.
I’ve been trying to get the book back, but he
just won’t give it to me. Can I get one more
week to try to get the book back? Her sister
says sure. That week comes and goes. She
still doesn’t have the book. Is she technically
guilty of theft?
[Prospective Juror]: Yes.
[Prosecutor]: Could you find her guilty of theft?
[Prospective Juror]: Yes.
[Prosecutor]: Are you going to feel sorry for
her?
[Prospective Juror]: No.
14
. . . .
[Prosecutor]: Let’s just say that [library
patron’s] sister leaves a voicemail and says if
you don’t return the book, I’m actually going to
file a police report, and that’s when [library
patron] actually responds. Does that change
your opinion of whether she’s guilty of theft or
not?
[Prospective Juror]: Not necessarily, because
she still could be guilty of stealing it, and she’s
only responding because of the threat.
The prosecutor also asked the prospective jurors how they would
feel if there was a grace period for returning library books before
they were overdue, and if they would find the library patron guilty
of theft if she did not return the book before the grace period
expired.
¶ 28 Later, when one prospective juror indicated that he would find
the library patron guilty of theft, the prosecutor asked all of the
prospective jurors, “Who agrees with [prospective juror B]? . . . Who
agrees with him on that? [Prospective juror W], you didn’t raise
your hand. . . . Why not?” The prosecutor questioned prospective
juror W about why she did not think the library patron was guilty,
until finally the prospective juror conceded that certain facts made
it “more likely [that] she would be guilty.”
15
¶ 29 After hearing the prosecutor question ten prospective jurors
about the overdue library book, another prospective juror offered
this opinion:
[Prospective Juror]: The person that checked
out the book is the one that engaged in the
contract. So the book is then their
responsibility. So the question is if she gave
the book to her husband who then sold it, it’s
still her responsibility. If the husband stole
the book and then sold it, then she can file a
police report against her husband.
[Prosecutor]: I like your opinions.
[Prospective Juror]: Thank you.
[Prosecutor]: [Prospective juror], let’s just say
that her husband actually does steal it from
her. She was taken advantage of in this
pending divorce, but she doesn't file a police
report.
[Prospective Juror]: Then she’s guilty.
(Emphasis added.)
¶ 30 In total, the prosecutor questioned at least twenty-one
prospective jurors about the overdue library book. When a
prospective juror doubted that the library patron was guilty, the
prosecutor pushed back (“Why are you hesitating?”), asked
additional questions (“In theory, they both could be liable in your
mind?”), or made changes to the hypothetical until the prospective
16
juror agreed that the library patron was guilty. The prosecutor
elicited confirmation from the prospective jurors that the library
patron was guilty of theft, or that they would find someone like her
guilty of theft if they were presented with similar facts.
¶ 31 Of the prospective jurors questioned about the library
hypothetical, at least ten were on the jury that convicted Kraaz.
And each of those jurors expressed some degree of agreement with
the prosecutor that the library patron was guilty.
¶ 32 Inexplicably, Kraaz’s counsel did not object to any of this, save
one contention that the prosecutor’s hypothetical misrepresented
the law (see supra note 2).
¶ 33 Then, in rebuttal closing argument, the prosecutor argued,
[T]hink back to voir dire when we were talking
about that book, and how [library patron] and
her husband took the book from her, or she
lent it to him. Yes. At the end of the day, it
was [library patron] who checked out the book,
who agreed to return it, who did not return it.
That is absolutely the case here. Ms. Kraaz
rented the car here, picked it up, didn’t return
it. As soon as she sends the text message of
[“]I’m up in Gunnison[”], and [“]I’m camping,[”]
she’s committed the crime.
(Emphasis added.) Again, Kraaz’s counsel did not object.
17
C. Law of Voir Dire
¶ 34 “To receive a fair trial, the defendant must be tried by an
impartial jury.” People v. Wilson, 2013 COA 75, ¶ 12. The purpose
of voir dire, therefore, is “to allow counsel ‘to determine whether any
potential jurors possessed any beliefs that would bias them such as
to prevent [the defendant] from receiving a fair trial.’” Id. (quoting
People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996)). This is voir
dire’s “only proper purpose.” Shipman, 747 P.2d at 3.
¶ 35 “Counsel may not use voir dire for the purpose of instructing
the jury regarding the law” or a party’s theory of the case. People v.
Lybarger, 790 P.2d 855, 859 (Colo. App. 1989), rev’d on other
grounds, 807 P.2d 570 (Colo. 1991).
¶ 36 The supreme court employed these principles in Edwards v.
People, 160 Colo. 395, 418 P.2d 174 (1966). In that case, the
defendant was charged with second degree murder for shooting a
defendant wanted to ask prospective jurors, “[i]f it should appear
that the wife of the defendant in this case and the deceased were
unduly intimate, could you and would you, notwithstanding that
18
fact, return a verdict based wholly and solely upon the evidence and
instructions of the court?” Id. at 401, 418 P.2d at 177. The trial
court disallowed the question. Id. The supreme court agreed that
the tendered question was improper, reasoning, “[i]t is not the
purpose of voir dire examination by counsel to educate the
prospective panel of jurors to a particular theory of the case.” Id. at
402, 418 P.2d at 177.
¶ 37 A division of this court extrapolated on these points:
The impression is inescapable that the aim of
counsel is no longer exclusion of unfit or
partial or biased jurors. It has become the
selection of a jury as favorable to the party’s
point of view as indoctrination through the
medium of questions on assumed facts and
rules of law . . . .
. . . .
Under the guise of eliciting information they
attempt to impart to the jurors a conception of
the law highly favorable to one side of the case.
Saiz, 660 P.2d at 4 (quoting State v. Manley, 255 A.2d 193, 204 n.2
(N.J. 1969)) (emphasis added). The Saiz division concluded that the
trial court was well within its discretion to exclude these types of
questions. Id.
19
D. The Prosecution’s Conduct Was Improper
¶ 38 The overdue-library-book hypothetical was obviously
constructed to teach the jury the prosecution’s theory of the case.
There are no other reasonable conclusions to be drawn. The facts
of the hypothetical closely mirrored the facts pertinent to Kraaz’s
case, including minute details like a third party stealing the
borrowed item, threats of filing a police report, and a grace period.
The prosecutor repeatedly pushed back against prospective jurors
who did not think the library patron was guilty, while also
encouraging and agreeing with prospective jurors who said she was
guilty. This imparted to the jurors the prosecutor’s belief that the
library patron was guilty, and, therefore, that they should find
Kraaz guilty in an analogous situation.
¶ 39 The Attorney General does not appear to dispute any of this.
Instead, the Attorney General argues that the prosecutor’s conduct
did not rise to the level of plain error because her questions were
not obviously contrary to established Colorado law. We reject this
argument. A bedrock principle of voir dire is that it may not be
used to teach the jury a party’s theory of the case. Edwards, 160
20
flagrant violation of this principle.
¶ 40 But the prosecutor’s misconduct went further. She did not
merely teach her theory of the case: she also obtained commitments
from prospective jurors to find the library patron guilty. The
prosecutor got every prospective juror with whom she spoke to
agree that the library patron was guilty of theft, and, in some cases,
that they would find someone guilty of theft if presented with
similar facts.
¶ 41 The Attorney General argues that any error was not plain
because no Colorado case has disapproved of questions seeking to
pre-commit jurors to a guilty verdict. See United States v. Johnson,
366 F. Supp. 2d 822, 842 (N.D. Iowa 2005) (referring to these types
of questions as “stake-out” questions). But a juror’s commitment to
convict is not distinct from the voir dire prohibitions established in
Colorado law. Rather, pre-commitment is a flagrant example of
Colorado’s longstanding prohibition: a party may not use voir dire
to teach the jury its theory of the case. Here, more than merely
teaching her theory of the case, the prosecutor obtained each
prospective juror’s agreement with that theory. Accordingly, we
21
reject the Attorney General’s argument that the error was not plain
due to a lack of binding case law regarding pre-commitments.
¶ 42 The Attorney General also argues that asking for
pre-commitment to a guilty verdict was not error because the
hypothetical did not involve auto theft. We reject this argument.
As discussed, the prosecutor’s hypothetical mirrored the relevant
facts of Kraaz’s case down to granular details. The only difference
the Attorney General identifies is that the hypothetical involved a
book, not a car. Indeed, despite this lone difference, the prosecutor
explicitly argued the similarities between Kraaz’s case and the
hypothetical during rebuttal, stating that the library hypothetical “is
this case.”
¶ 43 In sum, the prosecution’s voir dire questions led the jury to
agree with the prosecution’s theory of the case before any evidence
had been presented. Viewing the prosecutor’s statements in
context and under the totality of the circumstances, we conclude
that this misconduct was flagrant, glaring, and tremendously
improper. Domingo-Gomez, 125 P.3d at 1053.
22
E. Reversal is Required
¶ 44 The improper hypothetical and the pre-commitment questions
were essentially the first and last statements the jury heard from
the prosecutor. Before presenting any evidence, for almost thirty
minutes, the prosecutor taught her theory of the case and elicited
agreement with it from at least ten of the jurors who convicted
Kraaz.
¶ 45 Then, the prosecutor reminded the jury about all of this
during rebuttal closing. Specifically, the prosecutor asked the jury
to remember their voir dire discussions and the library book
hypothetical. The prosecutor then said, “That is absolutely the case
here. Ms. Kraaz rented the car here, picked it up, didn’t return it.
As soon as she sends the text message of [‘]I’m up in Gunnison,[’]
and [‘]I’m camping,[’] she’s committed the crime.” (Emphasis
added.)
¶ 46 With this statement, the prosecutor not only reinforced the
hypothetical — she misrepresented the law. Telling jurors that
Kraaz “committed the crime” when she sent the message ignores
that the jury had to find beyond a reasonable doubt that Kraaz
“knowingly obtain[ed] or exercise[d] control over the motor vehicle of
23
another without authorization.” § 18-4-409(2). Worse, this element
of the crime was central to the dispute in this case, as discussed
below. Although the jury was later correctly instructed on the law
before deliberations, the prosecutor still used its last word to
misrepresent the law.
¶ 47 Referencing the improper hypothetical and the jurors’
pre-commitments and misrepresenting the law are prototypes of
unfair prejudice. “Rebuttal closing is the last thing a juror hears
from counsel before deliberating, and it is therefore foremost in
their thoughts.” Domingo-Gomez, 125 P.3d at 1052.
¶ 48 We must also analyze the impact of prosecutorial misconduct
in light of “the strength of the evidence supporting the conviction.”
Id. at 1053. The evidence against Kraaz was not overwhelming.
¶ 49 The prosecution’s case was essentially that Kraaz rented a car
but did not return it. But, as discussed above, the prosecution had
to prove beyond a reasonable doubt that Kraaz knowingly exercised
control over the car. See § 18-4-409(2). The text messages are the
only evidence that Kraaz, as opposed to some other person,
exercised control over the car after her authorization to do so had
24
ended. Kraaz texted that she was in Gunnison, that she was sorry,
and that she was trying to return the car.
¶ 50 The text message conversation also included a self-serving
hearsay statement from an alternate suspect that Kraaz had the
car. While a reasonable jury could infer that Kraaz was exercising
control over the vehicle when those texts were sent (see supra Part
II.B), this evidence is by no means dispositive.
¶ 51 The relative weakness of the prosecution’s case supports our
conclusion that the prosecutorial misconduct casts serious doubt
on the reliability of the convictions.
IV. Remaining Contentions
¶ 52 Given our disposition, we need not and do not address Kraaz’s
remaining contentions.
4
4
We note that the prosecutor argued in closing, “This isn’t about an
ax to grind, about getting convictions. It’s about whether someone
stole a car or not, and whether you want to live in a society where
someone takes a car, doesn’t return it, and they are not held
accountable.” (Emphasis added.) Kraaz objected below and raises
this issue on appeal. The prosecutor’s argument violated the
principle that prosecutors “may not urge jurors to convict a
criminal defendant in order to protect community values, preserve
civil order, or deter future lawbreaking.” People v. Ortega, 2015
COA 38, ¶ 54 (citation omitted); see also People v. Marko, 2015 COA
139, ¶ 221, aff’d on other grounds, 2018 CO 97.
25
V. Disposition
¶ 53 The judgment of conviction is reversed. The case is remanded
for a new trial.
JUDGE ROMÁN and JUDGE YUN concur.
Such arguments must be excluded on retrial.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.