Peo v. Gonzales
Peo v. Gonzales
Peo v. Gonzales
Opinion
18CA1659 Peo v Gonzales 10-07-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 18CA1659
Adams County District Court No. 15CR1629
Honorable Francis C. Wasserman, Judge
Honorable Donald S. Quick, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Nickey Joe Gonzales,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE KUHN
Dailey and Dunn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 7, 2021
Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Defendant, Nickey Joe Gonzales, appeals the judgment of
conviction entered after a jury found him guilty of second degree
burglary and first degree criminal trespass. We vacate in part and
affirm in part.
I. Background
¶ 2 Gonzales was charged with stalking and first degree criminal
trespass after an incident at the victim’s condo. The year before the
incident, Gonzales and J.G. had divorced after a decade of
marriage. Following the divorce, they continued to live together and
tried to patch up their relationship. When things didn’t work out,
J.G. rented a condo and took on T.D. as her roommate.
¶ 3 J.G. and Gonzales stayed in touch following the divorce, and it
was “fairly common” for them to text back and forth. According to
J.G.’s trial testimony — which was often inconsistent with her prior
statements to law enforcement — Gonzales visited the condo
occasionally, stayed overnight sometimes, and kept some
possessions there.
¶ 4 The Wednesday prior to the incident, Gonzales contacted J.G.
about picking up some of his items from the condo. J.G. agreed to
let him come over that Sunday to pick up the items.
2
¶ 5 Over the next few days, Gonzales’ texts became “increasingly
desperate” and over a twenty-four-hour period, Gonzales sent
approximately 130 text messages. When J.G. stopped responding
to his texts, he showed up at her condo unannounced and knocked
on the front door.
¶ 6 Thinking Gonzales was someone else, J.G.’s roommate, T.D.,
answered the door. Gonzales — who had a “deer in the headlights”
look on his face — pushed the door open, walked inside, and
searched the condo for J.G, who was not there.
¶ 7 Finally, after the roommate told him to leave three times,
Gonzales grabbed the house phone, walked outside, and called J.G.
The roommate called 911. The police arrived and arrested
Gonzales.
¶ 8 As pertinent here, the prosecution charged Gonzales with first
degree trespass for entering or remaining in the condo unlawfully
and second degree burglary for doing so with the intent to commit
the crime of stalking — serious emotional distress.
¶ 9 To prove the burglary charge at trial, specifically the element
that Gonzales intended to commit the predicate crime of stalking —
serious emotional distress, the prosecution highlighted the contents
3
of the text messages and elicited testimony that J.G. told an officer
on the day of the incident that she was scared of Gonzales. In
support of the trespass charge, the prosecution introduced evidence
that Gonzales wasn’t on the lease, that he didn’t have a key, that
J.G. told him he wasn’t welcome there that day, that J.G. told the
roommate to call the police if he came to the condo, and that the
roommate repeatedly asked him to leave.
¶ 10 Gonzales’ theory of defense was two-fold. First, he contended
that he didn’t enter or remain in the condo unlawfully. The defense
argued that by knocking on the door, Gonzales intended to enter
the apartment lawfully and that, from his perspective, he had an
“open invitation” to go inside when the roommate opened the door.
Additionally, the defense contended that Gonzales didn’t
comprehend the roommate’s first two requests to leave but left the
condo immediately when he realized she wanted him out. The
defense also highlighted that, prior to the day of the incident,
Gonzales had never been declined entrance into the condo.
¶ 11 Second, the defense contended that Gonzales did not have the
intent to commit the predicate offense of stalking. The defense
pointed out that the text messages weren’t threatening and argued
4
that Gonzales was just trying to meet J.G. face to face so that he
could try to win her back.
¶ 12 At the close of trial, the jury found Gonzales guilty of both
counts. The court sentenced him to a term of five years
imprisonment in the custody of the Department of Corrections on
the burglary charge to be served concurrently with a two-year term
on the trespass charge.
II. Analysis
¶ 13 On appeal, Gonzales raises five issues: (1) the evidence was
insufficient to support the burglary conviction; (2) the trial court
erroneously admitted prior bad act evidence; (3) the trial court
erroneously admitted an audio recording that was cumulative and
unduly prejudicial; (4) the prosecutor committed misconduct in his
opening statement and closing argument; and (5) the burglary and
trespass convictions should have merged at sentencing
¶ 14 We agree with Gonzales on the first issue. Because the
evidence was insufficient to prove Gonzales was guilty of burglary,
we vacate that conviction and note that the constitutional
guarantees against double jeopardy bar the prosecution from
retrying him on that charge. See People v. Knobee, 2020 COA 7,
5
¶ 12 (cert. granted June 29, 2020). Because we conclude the
erroneous admission of Gonzales’ prior bad acts was harmless, we
affirm the trespassing conviction.
A. Sufficiency of the Evidence
¶ 15 Gonzales first contends that his burglary conviction must be
vacated because stalking — serious emotional distress, as pleaded
and proved at his trial, could not serve as the predicate offense for
burglary since it wasn’t a “crime against another person.” We
agree.
1. Standard of Review
¶ 16 We review sufficiency of the evidence claims — including those
raised for the first time on appeal and those that involve
preliminary questions of statutory interpretation — de novo. McCoy
v. People, 2019 CO 44, ¶ 27; Maestas v. People, 2019 CO 45, ¶ 2.
¶ 17 Likewise, we review statutory interpretation questions de novo.
People v. Sprinkle, 2021 CO 60, ¶ 12. Our goal is to ascertain and
give effect to the General Assembly’s intent. Id. at ¶ 22. We start
by examining the plain language of the statute and, reading the
statute as a whole, give its words and phrases their plain and
ordinary meaning. Id. In the absence of a legislative definition, we
6
interpret a statutory term in accordance with its ordinary or natural
meaning. Cowen v. People, 2018 CO 96, ¶ 14.
2. Discussion
¶ 18 The question of whether stalking — serious emotional distress
is a “crime against another person” requires us to interpret the
burglary statute.
¶ 19 As relevant here, “[a] person commits second degree burglary,
if the person knowingly breaks an entrance into, enters unlawfully
in, or remains unlawfully after a lawful or unlawful entry in a
building or occupied structure with intent to commit therein a
crime against another person or property.” § 18-4-203(1), C.R.S.
2020.
¶ 20 The legislature has not defined the term “crime against
another person,” but two divisions of our court have interpreted the
provision in published decisions. See People v. Wright, 2021 COA
106, ¶¶ 14-27; People v. Poindexter, 2013 COA 93, ¶¶ 5-34. We
agree with and adopt the reasoning of both divisions.
¶ 21 Because the legislature didn’t define the term “crime against
another person,” both divisions looked to Black’s Law Dictionary for
guidance. Wright, ¶ 17; Poindexter, ¶ 11; see Cowen, ¶ 14 (“When
7
determining the plain and ordinary meaning of words, we may
consider a definition in a recognized dictionary.”). Black’s contains
two relevant definitions, both of which aid our analysis. The
definitions concern “crimes” or “offenses” against persons
1
:
• “[C]rimes against persons. A category of criminal offenses in
which the perpetrator uses or threatens to use force.
Examples include murder, rape, aggravated assault, and
robbery.” Poindexter, ¶ 11 (quoting Black’s Law Dictionary
401 (8th ed. 2004)).
• “[O]ffense against the person. A crime against the body of
another human being. The common-law offenses against the
person were murder, manslaughter, mayhem, rape, assault,
battery, robbery, false imprisonment, abortion, seduction,
Dictionary at 1112).
¶ 22 Under these definitions, some offenses are always “crimes
against another person” as a matter of law. See Wright, ¶ 26
1
The terms “crime” and “offense” are synonymous under Colorado
law. § 18-1-104(1), C.R.S. 2020; People v. Poindexter, 2013 COA
93, ¶ 11.
8
(“[B]ecause subjecting another to ‘physical contact’ is an essential
element of harassment, there is no factual scenario that can
constitute harassment that would not also constitute a “crime
against a person.”).
2
Based on their elements, such offenses require
proof under any scenario that the defendant used or threatened to
use force or acted against the body of another person.
¶ 23 Other offenses, such as obstructing a peace officer, are not as
clear cut. See Poindexter, ¶¶ 29, 31. These offenses require us to
undertake a case-by-case examination of the underlying elements of
the offense as charged and proved. Id. at ¶ 26. In doing so, we
“consider the particular factual circumstances of each case and
whether the evidence established that the offender intended to
either act ‘against the body of another human being’ or ‘use[] or
threaten[] to use force.’” Wright, ¶ 22 (quoting Poindexter, ¶¶ 11,
29).
2
Like the stalking statute, the harassment statute contains
multiple subsections that set forth different ways a person can
commit the offense. Subsection (1)(a) of section 18-9-111, C.R.S.
is the only subsection that requires proof of physical contact as an
essential element of the offense.
9
¶ 24 The legislature has amended the second degree burglary
statute since Poindexter was announced.
3
Ch. 376, sec. 1,
§ 18-4-204, 2018 Colo. Sess. Laws 2280. However, it has refrained
from defining or clarifying the term “crime against another person
or property.” This lack of action is notable, because it “is a
persuasive indication that the General Assembly approves of the
construction” of a statutory term. People v. McDonald, 2020 COA
65, ¶ 31, rev’d, 2021 CO 64; see also Rauschenberger v. Radetsky,
745 P.2d 640, 643 (Colo. 1987) (“When a statute is amended, the
judicial construction previously placed upon the statute is deemed
approved by the General Assembly to the extent that the provision
remains unchanged.”), superseded by statute as stated in White v.
Hansen, 837 P.2d 1229 (Colo. 1992); accord Tompkins v. DeLeon,
¶ 25 The stalking statute outlines three alternative methods by
which the prosecution can allege a person committed the offense.
§ 18-3-602(1), C.R.S. 2020. Two of the methods, which are not
3
Wright was announced after the conclusion of the most recent
legislative session.
10
applicable here, require the prosecution to prove that the defendant
made a credible threat to another person. § 18-3-602(1)(a), (b). The
third method — at issue here — does not require proof of a credible
threat. Under section 18-3-602(1)(c),
[a] person commits stalking if directly, or
indirectly through another person, the person
knowingly . . . [r]epeatedly follows, approaches,
contacts, places under surveillance, or makes
any form of communication with another
person . . . in a manner that would cause a
reasonable person to suffer serious emotional
distress and does cause that person . . . to
suffer serious emotional distress.
¶ 26 This subsection does not require proof that a person used or
threatened force or committed an offense against the body, and
there are myriad potential factual scenarios where a person could
commit stalking — serious emotional distress without using or
threatening force or acting against the body of another. Therefore,
stalking — serious emotional distress is not a “crime against
another person” as a matter of law. See Wright, ¶ 26.
¶ 27 In reaching this conclusion, we reject as overly broad the
People’s arguments that the plain language and legislative
declaration of the stalking statute necessarily means stalking —
serious emotional distress is always a “crime against another
11
person” and that the “modern” definition of “person” includes
“personality” or “self,” which describes the “entire person” including
“body, emotions, thoughts, and sensations.”
¶ 28 Under the People’s reasoning, virtually any crime that caused
emotional harm or discomfort to the victim would qualify as a
predicate offense to burglary. It’s no stretch to say that the vast
majority of crimes cause at least some emotional harm to the
victims. We decline to adopt such a broad interpretation because it
is inconsistent with the legislature’s intent to place a limit on the
type of predicate offenses which can be the object of a burglary.
See Poindexter, ¶ 26.
¶ 29 Because stalking — serious emotional distress isn’t a “crime
against another person” as a matter of law, we must examine
whether, based on the facts and circumstances as pleaded and
proved at trial, it met that definition here. See id. We conclude that
it didn’t.
¶ 30 The prosecution presented no evidence that Gonzales intended
to use or threatened to use force against J.G or that he intended to
commit a crime against her body. In fact, J.G. explicitly testified
that Gonzales never directly or indirectly threatened her and that he
12
went out of his way to say that he wasn’t threatening her.
Therefore, we cannot say that Gonzales intended to commit a “crime
against another person.”
¶ 31 This isn’t to say that stalking — serious emotional distress can
never meet that definition. Under different circumstances, it could
be a “crime against another person.” See id. at ¶ 31. But, in this
case, it wasn’t. Therefore, it could not serve as a predicate offense
for Gonzales’ burglary conviction and the evidence was insufficient
to support that conviction.
B. Prior Bad Act Evidence
¶ 32 Next, Gonzales contends that the court erroneously admitted
evidence that he’d been violent towards J.G. during their
relationship. Again, we agree.
1. Standard of Review
¶ 33 We review the trial court’s evidentiary rulings for an abuse of
discretion. People v. Moore, 2021 CO 26, ¶ 26. The trial court
abuses its discretion if its ruling is manifestly arbitrary,
unreasonable, or unfair, or where it is based on an erroneous view
of the law. People v. Manzanares, 2020 COA 140M, ¶ 28.
13
¶ 34 We review preserved nonconstitutional errors for
harmlessness. People v. Baker, 2021 CO 29, ¶ 38. We must
reverse where an error “substantially influenced the verdict or
affected the fairness of the trial proceedings.” Id. (quoting Hagos v.
People, 2012 CO 63, ¶ 12). We will disregard an error as harmless
only if the prosecution demonstrates that there is no reasonable
probability that the error adversely affected the outcome of the trial.
People v. Williams, 2020 CO 78, ¶ 24.
2. Additional Background
¶ 35 During cross-examination, defense counsel questioned J.G.
about the content of the text messages and her reaction to the
messages:
Defense counsel: At no point does he ever
threaten you directly?
J.G.: Or indirectly, no sir.
Defense counsel: And, in fact, he goes out of
his way to basically say, I’m not threatening
you?
J.G: That’s exactly what he was doing, yes.
Defense counsel: I don’t want to argue with
you?
J.G.: Uh-huh.
14
Defense counsel: I don’t want to start a fight
with you?
J.G.: Right.
Defense counsel: I just want to talk with you?
J.G.: Right.
Defense counsel: But you were done talking?
J.G.: Yes, I was.
Defense counsel: And, again, you know, for
lack of a better term this was just getting really
annoying?
J.G.: Really annoying, yes.
Defense counsel: Maybe even aggravating?
J.G.: Yeah, I guess you could say aggravating.
I mean, I wasn’t mad, but it was annoying,
very annoying.
Defense counsel: Enough is enough?
J.G.: Correct.
Defense counsel: But you weren’t scared of
him?
J.G.: Never have been.
¶ 36 At the conclusion of the cross-examination, the prosecution
argued that J.G.’s answer that she’d never been afraid of Gonzales
15
opened the door to the admission of evidence of prior violence in the
relationship. The prosecutor conceded that he had not provided
pretrial notice of his intent to introduce CRE 404(b) evidence.
¶ 37 The evidence consisted of a statement J.G. made during a
follow-up interview with a detective a few days after Gonzales’ arrest
where she described violence in the relationship. The detective’s
report, which summarized the interview, was read into the record
outside the presence of the jury before the court’s ruling.
¶ 38 Defense counsel objected. He argued that J.G.’s answer,
which was not responsive to his narrowly tailored question, could
not open the door to the evidence. Additionally, he argued that the
danger of prejudice outweighed the probative value of the evidence
and argued that, because of the lack of information regarding the
context and timing of the prior violence, its admission created the
“potential to explode [this trial] into something that . . . it isn’t
intended to be.”
¶ 39 The court overruled the objection and found that it was “a
classic inconsistent statement situation . . . that goes directly to the
credibility of the witness.” The court ruled that the prosecution
16
could impeach J.G. with her prior statement but prohibited the
prosecution from going into the facts of the specific prior incidents.
¶ 40 After the court’s ruling, the prosecutor questioned J.G. about
her prior statement at the end of re-direct:
Prosecutor: Okay. Ma’am, one last question.
You indicated on cross-examination that
you’ve never been scared of Mr. Gonzales?
J.G.: No, I have not. I’m not afraid of him, no.
Prosecutor: Okay. Didn’t you tell Detective
Barkley, though, specifically and he asked, you
told him that there had been prior incidences
of violence in your relationship?
J.G.: There had been prior incidences of the
escalating violence yes, but, I was still not
afraid of him. He never left a mark on me, he’s
never hurt me, physically. Tried but never
physically hurt me.
3. Discussion
¶ 41 Gonzales contends that the evidence was inadmissible under
CRE 404(b) and that the court misapplied the law regarding
inconsistent statements and misconstrued the “opening the door”
doctrine by admitting it.
¶ 42 The People argue that the evidence was admissible under
multiple theories: as an inconsistent statement under CRE 613 and
17
section 16-10-201, C.R.S. 2020; as a specific act of prior conduct
related to J.G.’s character for truthfulness under CRE 608(b); and
as prior bad act evidence under CRE 404(b). Additionally, they
argue that even if the evidence was otherwise inadmissible, the
defense opened the door to its admission.
¶ 43 We begin by evaluating whether the evidence was admissible.
We conclude that it wasn’t. Then, we evaluate whether the
cross-examination of J.G. opened the door to its admission. We
conclude that it didn’t.
a. CRE 613 and Section 16-10-201
¶ 44 The evidence was not admissible as an inconsistent statement
under CRE 613 or section 16-10-201 for two reasons. First, J.G.’s
statements about Gonzales’ violent conduct — which made no
mention of fear — were not actually inconsistent with her trial
testimony. See, e.g., City of Gunnison v. McCabe Hereford Ranch,
Inc., 702 P.2d 768, 770 (Colo. App. 1985) (trial court didn’t abuse
its discretion in precluding impeachment with evidence that wasn’t
inherently inconsistent with and was made in a different context
than the witness’ trial testimony); 22 Stephen A. Hess & Sheila K.
Hyatt, Colorado Practice Series: Handbook on Evidence ER 613 cmt.
18
3(c) (2020-2021 ed.) (“In order to satisfy the foundational
requirements of [CRE 613], it is necessary that the prior statement
actually be inconsistent with the witness’ testimony.”).
¶ 45 Second, even assuming J.G.’s prior statement was actually
inconsistent, it was precluded by other evidentiary rules. A witness’
prior inconsistent statements about other act evidence are still
subject to the strictures of CRE 404(b) (governing substantive
evidence) and CRE 608 (governing impeachment evidence). People
v. Fortson, 2018 COA 46M, ¶ 39. The framework governing
inconsistent statements “simply sets forth the procedure for proper
impeachment of a witness with that witness’ prior inconsistent
statements; it does not permit, much less address, the permissible
uses of other act evidence.” Id. at ¶ 38.
b. CRE 608(b)
¶ 46 “[E]vidence of specific acts used solely for impeachment is
governed by [CRE] 608(b).” People v. Segovia, 196 P.3d 1126, 1130
(Colo. 2008). CRE 608(b) allows a party to ask a witness about
specific acts of the witness’ conduct that are probative of the
witness’ character for truthfulness or untruthfulness. Id.
19
¶ 47 The People contend that J.G.’s prior statement to the detective
was admissible as impeachment evidence because it was probative
of her character for untruthfulness. We disagree.
¶ 48 It’s clear that the evidence wasn’t introduced solely for
impeachment purposes. Instead — as the prosecutor conceded
when he cited CRE 404(b) in his offer of proof — it was introduced
as substantive evidence.
¶ 49 The prosecutor’s question, which assumed that J.G.’s
allegations of prior domestic violence against Gonzales were true,
was not merely tailored to impeach J.G.’s credibility. See Fortson,
¶ 32. Instead, it highlighted specific instances of Gonzales’ prior
misconduct and created the inference that J.G. was afraid of
Gonzales because of his prior bad acts. See id. at ¶ 40.
c. CRE 404(b)
¶ 50 The People, while acknowledging that the trial court didn’t
make specific findings or explicitly conduct the analysis outlined in
People v. Spoto, 795 P.2d 1314 (Colo. 1990), contend that the other
bad act evidence was nonetheless admissible under CRE 404(b).
The People argue that the court implicitly found good cause to
20
excuse the lack of pretrial notice and implicitly found that the
evidence was admissible under CRE 404(b).
¶ 51 We conclude that the evidence was inadmissible under the
fourth Spoto factor because its probative value was substantially
outweighed by the danger of unfair prejudice. CRE 403; Spoto, 795
P.2d at 1318. In reaching this conclusion, we don’t opine on
whether the court erred by not making specific findings and we do
not make specific findings on whether the evidence satisfied the
first three prongs of Spoto.
¶ 52 When examining the fourth Spoto prong, we consider the
extent to which the proffered other act evidence adds logical force,
independent of the proscribed inference of bad character, to the
existing body of evidence proving the same material fact. Williams,
¶ 14. We don’t consider the probative value of the evidence in
isolation but instead consider the marginal or incremental probative
value of the evidence relative to the probative force of other evidence
available in the case. Id. Then we weigh that marginal probative
value against the inherently prejudicial impact of allowing the jury
to hear that the defendant has committed prior bad acts and is
therefore known to be a person of negative character. Id.
21
¶ 53 Here, any marginal probative value of the evidence was low.
The evidence did not contradict J.G.’s testimony that she wasn’t
afraid of Gonzales, and it was not relevant to any of the elements
the prosecution had to prove at trial. Additionally, the prosecution
had already introduced J.G.’s prior statements to the police
indicating that she was in fact afraid of Gonzales. The prior bad act
evidence did not add logical force to the existing body of evidence.
See id.
¶ 54 On the other hand, the evidence had a greater danger of unfair
prejudice. Evidence of prior crimes or bad acts “has a distinct and
unmistakable potential for unfair prejudice.” People v. Rath, 44
P.3d 1033, 1043 (Colo. 2002). The prior bad act evidence was
arguably more serious than the charges Gonzales faced, and the
prior bad act evidence was dissimilar to the charged conduct. See
Perez v. People, 2015 CO 45, ¶ 27; People v. Brown, 2014 COA
130M, ¶¶ 11-12.
¶ 55 Overall, the evidence of “prior incidences of . . . escalating
violence” created a danger that the jury would convict Gonzales as
punishment for his past deeds, overvalue the evidence when
assessing Gonzales’ guilt on the charged offenses, or require him to
22
disprove or explain his prior acts. See Kaufman v. People, 202 P.3d
542, 552 (Colo. 2009)
d. Opening the Door
¶ 56 Having concluded that the evidence was inadmissible, we turn
to the question of whether the defense nonetheless opened the door
to its admission.
¶ 57 Evidence that is otherwise inadmissible can become
admissible if the defendant “opens the door” to it. People v. Cohen,
2008) (“When a party opens the door to otherwise inadmissible
evidence, his opponent may then inquire into the previously barred
matter.”). The concept prevents one party from gaining and
maintaining an unfair advantage by selectively presenting facts
that, without elaboration or context, create an incorrect or
¶ 58 We agree with Gonzales that the court misapplied the opening
the door doctrine for two reasons. First, an unpredictable witness’
answer that is nonresponsive to a question, or that is responsive
but broader than the question calls for, does not open the door to
otherwise inadmissible evidence. 21 Kenneth W. Graham, Jr.,
23
Federal Practice and Procedure Evidence § 5039.1, Westlaw (2d ed.
database updated Apr. 2021) (“[A] nonresponsive answer to a
question by a party does not open the door either for the
questioning party or an opponent.”); 1 Christopher B. Mueller &
Liard C. Kirkpatrick, Federal Evidence § 1.12, Westlaw (4th ed.
database updated May 2021) (“Unresponsive answers, or those that
are responsive but broader than the question, are not the
responsibility of the questioner.”).
¶ 59 Second, assuming a witness’ nonresponsive answer can open
the door, J.G.’s answer did not do so. The concept of “opening the
door” isn’t unlimited, and inadmissible rebuttal evidence is allowed
only to the extent necessary to remove any unfair prejudice which
might otherwise have ensued from the original evidence. Cohen,
¶ 23. Put another way, the doctrine does not “give an opponent
unbridled license to introduce otherwise inadmissible evidence into
the trial, nor does it justify receipt of rebuttal evidence merely
because it is in the same category of excludable evidence as the
evidence previously offered.” Id. (quoting United States v. Martinez,
988 F.2d 685, 702 (7th Cir. 1993)).
24
¶ 60 Here, the potential prejudice to the prosecution was that J.G.’s
answer could mislead the jury to believe that she’d never been
afraid of Gonzales, even though she’d made prior statements to the
contrary. Therefore, to remove any unfair prejudice, the
prosecution could introduce evidence of her prior fear, but only to
the extent necessary to rebut any adverse inferences or to correct
any incorrect or misleading statements. See id. at ¶ 26.
¶ 61 The evidence of prior violence exceeded those limits. Because
the evidence did not contradict J.G.’s answer, its admission went
“beyond the necessity of removing prejudice in the interest of
fairness.” Id. at ¶ 23 (quoting Martinez, 988 F.2d at 702). Instead
of preventing prejudice, the evidence injected prejudice into the
case. Id. Additionally, J.G. had already testified on direct
examination that she had submitted a victim impact statement
where she wrote that she “fear[ed] for [her] safety.” Therefore, the
court erred by allowing the evidence under the “opening the door”
doctrine.
e. The Error Was Harmless
¶ 62 Finally, a reviewing court can disregard an error as harmless if
it can say with fair assurance, in light of the entire record, that the
25
error didn’t substantially influence the verdict or impair the fairness
of the trial. Hagos, ¶ 12. Thus, reversal is required only if there’s a
reasonable probability the error contributed to the conviction. See
Pernell v. People, 2018 CO 13, ¶ 22. The single most important
factor in making this determination is whether the case was close.
People v. Casias, 2012 COA 117, ¶ 69. We conclude that the error
here was harmless to the remaining trespass charge.
¶ 63 The offending testimony in this case was fleeting. It was a
single statement in the course of a day-long trial with several
witnesses. J.G. didn’t specifically describe any violent incident or
add any inflammatory details. See Callis v. People, 692 P.2d 1045,
1053 (Colo. 1984) (evidentiary error harmless where the evidence of
prior criminality was not an express reference to a crime and did
not delineate the nature of the past criminal conduct). Not only
that, but she tempered the statement with testimony that she
wasn’t afraid of Gonzales and he had never physically hurt her —
testimony that was unhelpful to the prosecution’s case. Finally, the
prosecution never referred to the violence testimony again. See,
e.g., People v. Kern, 2020 COA 96, ¶ 16 (concluding “relatively brief
and vague” references to a restraining order were harmless); People
26
v. Herdman, 2012 COA 89, ¶¶ 46-47 (references to the defendant’s
past cocaine use didn’t warrant reversal where the references “were
few, fleeting, and not detailed”).
¶ 64 We cannot say that this was a close case on the trespass
charge. To establish trespass, the prosecution had to prove that
Gonzales knowingly and unlawfully entered or remained in J.G.’s
dwelling. See § 18-4-502, C.R.S. 2020. J.G. testified that Gonzales
wasn’t on the lease, he didn’t have a key, and that she told him not
to come to the house the day of the trespass. She also identified
one of Gonzales’s text messages in which he acknowledged that J.G.
didn’t “want [him] there.” J.G. also testified she left town to avoid
Gonzales and told her roommate not to answer the door if Gonzales
came over.
¶ 65 The roommate testified that she was home alone when
Gonzales showed up. She stated that she opened the door thinking
he was someone else and Gonzales then elbowed his way into the
home. She repeatedly asked him to leave and, after the third
request, he left.
¶ 66 Finally, one of the responding officers testified that he spoke
with J.G. as part of his investigation. She confirmed that Gonzales
27
didn’t live at the home and he “did not have permission to be at that
address.” Thus, in our view, the case was not close and the
properly admitted evidence “overwhelmingly demonstrates”
Gonzales trespassed, rendering any error from the prior violence
testimony harmless. See, e.g., People v. Summitt, 132 P.3d 320, 327
(Colo. 2006) (a trial court’s evidentiary error is harmless if properly
admitted evidence overwhelmingly shows guilt).
¶ 67 To be sure, J.G. testified that at other times and occasions
Gonzales had permission to enter the home. But previous
permission to enter the home doesn’t confer a perpetual, unlimited
right to entry. See People v. Hanna, 981 P.2d 627, 629 (Colo. App.
1998) (rejecting the defendant’s argument that insufficient evidence
supported her trespass conviction, in part because “she had been
allowed access to the house in the past”). So even if Gonzales
enjoyed permission to enter the home on other occasions, he
undisputedly had no permission to enter the home the day he
trespassed.
¶ 68 Perhaps recognizing the strength of this evidence, Gonzales
doesn’t argue the evidentiary error impacted the trespass
conviction. He instead argues that the evidence “unfairly bolstered
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the prosecution’s claim that [Gonzales] meant to stalk” the victim
and that “the evidence on that element was keenly disputed at
trial.” Maybe so, but such harm goes to the burglary conviction
(and more particularly the predicate stalking offense). Gonzales
doesn’t say — and we don’t see — how the prior violence testimony
impacts the unchallenged testimony that Gonzales entered the
home without permission and didn’t leave when first asked.
¶ 69 For these reasons, we don’t believe that the “prior violence”
testimony substantially influenced the trespass conviction or
impaired the fairness of the trial.
III. Remaining Contentions
¶ 70 Gonzales’s remaining contentions are that the trial court
erroneously admitted an audio recording that was cumulative and
unduly prejudicial, that the prosecutor committed misconduct in
his opening statement and closing argument, and that the burglary
and trespass convictions should have merged at sentencing. We
need not reach most of these issues. Our ruling vacating the
burglary conviction renders the merger issue and any issues with
the prosecutor’s closing statement moot. Gonzales does not argue
29
that the audio recording had any impact outside the burglary,
similarly rendering that issue moot.
¶ 71 In his remaining issue Gonzales contends that the prosecutor
committed misconduct in his opening statement when he said that
he was “legally required” to call J.G. as a witness. There was no
contemporaneous objection to this statement. We review
unpreserved allegations of prosecutorial misconduct for plain error.
Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010). Plain error
occurs only if the statement “so undermines the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
of the jury’s verdict.” Dominguez-Gomez v. People, 125 P.3d 1043,
1053 (Colo. 2005). Reversal is required only for “prosecutorial
misconduct which is ‘flagrantly, glaringly, or tremendously’
improper.” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo.
App. 1997)).
¶ 72 We cannot conclude on this record that the prosecutor’s single
comment in his opening statement rises to this level. In context,
the prosecutor’s statement explains why J.G. was a reluctant
witness and why he compelled her attendance. These assertions
were later introduced through J.G.’s own testimony. Even if we
30
assume the prosecutor’s statement was error, we would not find
that this single statement was so “flagrantly, glaringly, or
tremendously improper” as to cast serious doubt on the reliability of
the jury’s verdict here. See People v. Denhartog, 2019 COA 23, ¶ 66
(“The prosecutor’s single misstatement does not cause us to
question the reliability of the judgment of conviction and we
therefore discern no plain error.”).
IV. Conclusion
¶ 73 We affirm Gonzales’ judgment of conviction for trespass. We
vacate the judgment of conviction for second degree burglary and
remand to the trial court for correction of the mittimus and
resentencing.
JUDGE DAILEY and JUDGE DUNN concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.