Peo v. Erickson
Peo v. Erickson
Peo v. Erickson
Opinion
19CA0684 Peo v Erickson 10-07-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0684
El Paso County District Court No. 17CR3379
Honorable Deborah J. Grohs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Ray Erickson II,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE LIPINSKY
Furman and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 7, 2021
Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1 Michael Ray Erickson II appeals his judgment of conviction for
possession of a weapon by a previous offender (POWPO). We affirm.
I. Background Facts
¶ 2 Officer Raymond Shepard of the Colorado Springs Police
Department pulled Erickson over for driving an unregistered car.
Alexandria Morris, a friend of Erickson’s, was seated in the
passenger seat when the officer pulled the car over.
¶ 3 As Officer Shepard approached the car to speak to Erickson,
the officer saw the “grip of [a] handgun . . . sticking up in plain
view” from “between the driver’s seat and the center console.” The
officer asked Erickson to step out of the car so that he could secure
the gun. Erickson complied. Underneath the gun, Officer Shepard
saw a clear pipe with white residue.
¶ 4 Erickson told Officer Shepard that the gun belonged to
Morris’s boyfriend. While speaking with Officer Shepard, Erickson
neither denied knowledge of the gun nor appeared surprised that
the officer had found it.
¶ 5 Officer Shepard looked up Erickson’s name in the police
database and discovered he had a previous felony conviction. The
officer arrested Erickson for being a felon in possession of a firearm.
2
¶ 6 The prosecution charged Erickson with POWPO, possession of
drug paraphernalia, driving under restraint, and several traffic
infractions, but later dismissed all the charges except for the
POWPO charge. Under section 18-12-108(1), C.R.S. 2020, a person
commits the crime of POWPO “if the person knowingly possesses,
uses, or carries upon his or her person a firearm . . . subsequent to
the person’s conviction for a felony . . . .”
¶ 7 At trial, Morris testified that she and Erickson did not know
there was a gun in the car until Officer Shepard pulled them over
and they started to look for the car’s “paperwork.” She said that
Erickson had loaned the car to her and her boyfriend, Andrew
Godfre, for a couple of days to see if they would like to buy it.
Morris testified that, after they decided not to buy the car, Erickson
picked it up from Godfre’s house. Morris said that she and
Erickson had been in the car for no more than thirty minutes before
Officer Shepard pulled them over. She testified that, only after the
officer pulled the car over did she discover that Godfre had left his
gun in the car.
¶ 8 Godfre testified that the gun was his and that he had left it in
the car. He said he kept his gun in the car for safety and that he
3
stored it between the driver’s seat and the center console. He also
said that he did not tell Morris or Erickson that he had left his gun
in Erickson’s car.
¶ 9 Based on this evidence, defense counsel argued that Erickson
did not know the gun was in the car and, thus, he did not
“knowingly” possess it for purposes of the POWPO statute.
¶ 10 The jury found Erickson guilty of POWPO, and the trial court
sentenced him to two years in prison. Erickson appeals.
II. Discussion
¶ 11 Erickson contends that his judgment of conviction should be
reversed for three reasons: (1) the trial court erred by overruling
defense counsel’s objection to the prosecutor’s questions regarding
criminal charges previously filed against Morris; (2) the prosecutor
committed flagrant misconduct in his closing argument by telling
the jury that he found it “hard to believe” Morris’s testimony; and
(3) these alleged errors cumulatively deprived him of a fair trial. We
are not persuaded.
4
A. The Prosecution’s Impeachment of Morris
1. Additional Facts
¶ 12 On cross-examination, the prosecutor asked Morris about her
prior felony conviction:
PROSECUTOR: You were convicted in
17CR4198 of False Information to a
Pawnbroker; is that right?
MORRIS: Yes.
PROSECUTOR: You pawned stolen items to a
pawnbroker and claimed ownership of those
items as well as being in possession of them
for longer than you had; isn’t that true?
DEFENSE COUNSEL: Objection, Your Honor;
that’s not what the charge is, nor is that the
conviction.
PROSECUTOR: Do you remember what you
pled guilty to?
MORRIS: Yes.
PROSECUTOR: What did you plead guilty to?
MORRIS: False Information to a Pawnbroker.
. . . .
PROSECUTOR: Now, the reason why you were
convicted of that is because you had stolen
jewelry, and you falsely claimed ownership of it
to a pawnbroker as well as being in possession
of it for longer than you had; isn’t that right?
MORRIS: Yes.
5
¶ 13 On re-direct, defense counsel asked Morris further questions
about her conviction:
DEFENSE COUNSEL: Just regarding your
conviction, I want to have – give you an
opportunity to clarify. You did not plead guilty
nor were you convicted of possessing stolen
property; is that right?
MORRIS: Correct.
DEFENSE COUNSEL: And you were not
convicted nor did you plead guilty to stealing
any property?
MORRIS: Correct.
DEFENSE COUNSEL: You were convicted of
False Information to a Pawnbroker?
MORRIS: Yes.
DEFENSE COUNSEL: And can you explain
what False Information to a Pawnbroker is?
Do you recall – is it when you pawn an item,
you have to fill out a slip?
MORRIS: Yes.
DEFENSE COUNSEL: And when you fill out a
slip, they ask you a number of questions?
MORRIS: Yes.
DEFENSE COUNSEL: And if you – if you make
a mistake, either intentionally or otherwise, on
that slip, have you provided false information
to a pawnbroker?
MORRIS: Correct.
6
DEFENSE COUNSEL: And that is a felony
conviction?
MORRIS: Correct.
. . . .
DEFENSE COUNSEL: In this situation there
was an allegation that there was stolen
property?
MORRIS: Correct.
DEFENSE COUNSEL: But you were charged
with and pleaded to and convicted of providing
false information regarding that property?
MORRIS: Correct.
¶ 14 On recross-examination, the prosecutor asked Morris
follow-up questions regarding her plea agreement and conviction:
PROSECUTOR: So [in] that same case you
were also charged with Theft; isn’t that true?
MORRIS: No.
PROSECUTOR: It’s not true? It’s not true that
you had three counts, one of which was False
Information to a Pawnbroker, one of which was
Theft of Property [$]2,000 to $5,000 worth of
value, and one of them was Theft of Property
[$] 2,000 to $5,000 in value as a Conspiracy
charge?
MORRIS: The other two were dropped if I’m not
mistaken.
PROSECUTOR: As a part of your plea bargain,
correct?
7
¶ 15 Defense counsel objected to this question, but the trial court
overruled the objection, saying to defense counsel, “You asked her if
she was in possession of stolen property, and . . . she just said
that . . . [she] owned the property for nine months when she had
only owned it for six months. So I think it’s fair game to clarify the
facts of the situation.” The prosecutor continued:
PROSECUTOR: When you pled guilty to False
Information to a Pawnbroker, one of the
stipulations of that plea agreement was that
those charges would be dismissed as part of
that plea agreement, correct?
MORRIS: Correct.
PROSECUTOR: They were not dismissed prior
to you entering that plea; is that correct?
MORRIS: Correct.
2. Standard of Review and Applicable Law
¶ 16 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). A trial
court abuses its discretion only if its “ruling was manifestly
arbitrary, unreasonable, or unfair.” Id.
¶ 17 Under section 13-90-101, C.R.S. 2020, a witness may be
impeached by proof of a prior felony conviction. People v. Huynh,
98 P.3d 907, 913 (Colo. App. 2004). The scope of questioning “is
8
generally limited to the name, nature and date of the offense for
Colorado Criminal Practice and Procedure § 19.42, at 381 (1996)).
Questions regarding the facts underlying the prior offense are
improper “unless relevant for impeachment purposes.” Id. (quoting
Dieter, § 19.42). In addition, a prosecutor “may not ask whether a
prior felony conviction arose from a plea or a trial.” People v.
Gomez, 211 P.3d 53, 57 (Colo. App. 2008), abrogated on other
grounds by Moore v. People, 2014 CO 8, 318 P.3d 511.
¶ 18 But “[c]ourts may relax this limitation if a party ‘opens the
door’ to otherwise inadmissible evidence.” People v. Clark, 214 P.3d
(Colo. 2010). “The concept of ‘opening the door’ represents an effort
by courts to prevent one party in a criminal trial from gaining and
maintaining an unfair advantage by the selective presentation of
facts that, without being elaborated or placed in context, create an
incorrect or misleading impression.” Golob v. People, 180 P.3d
1006, 1012 (Colo. 2008). When a party “opens the door” to
otherwise inadmissible evidence, opposing counsel “may then
inquire into the previously barred matter.” Id.
9
3. The Trial Court Did Not Err by Allowing the Prosecutor to Ask
Morris About Her Previous Criminal Charges Because Defense
Counsel Opened the Door to Such Questioning
¶ 19 Initially, we note that, although the prosecutor, during cross-
examination, first asked Morris about the charge to which she
pleaded guilty, Erickson did not object to that question and does
not argue on appeal that the court erred by allowing it. Rather, in
his appeal, Erickson focuses exclusively on the prosecutor’s
questions on recross-examination regarding the charges filed
against Morris.
¶ 20 The trial court did not err by overruling defense counsel’s
objection to the prosecutor’s questions on recross-examination
because defense counsel opened the door to that questioning. As
noted above, defense counsel had asked Morris about her plea
agreement and whether her case had included allegations of stolen
property. Defense counsel also asked Morris whether she had been
“charged with and pleaded to and convicted of” providing false
information to a pawnbroker. This questioning created the possible
inference that Morris had been acquitted of a theft charge following
a trial. The prosecutor’s questioning on recross-examination
10
clarified for the jury that, although Morris had been charged with
theft, a jury had not acquitted her of such an offense.
¶ 21 Thus, we hold that the prosecutor’s recross-examination
properly did not exceed the scope of evidence to which defense
counsel’s re-direct examination had opened the door.
¶ 22 Moreover, the prosecutor did not mention the dismissed
charges in his closing argument. To the contrary, the prosecutor
noted Morris’s felony conviction during closing argument for the
sole purpose of attacking her credibility. See Clark, 214 P.3d at 540
(holding that, during closing argument, a lawyer may remind the
jury of a witness’s prior convictions to impeach the witness’s
credibility).
¶ 23 For these reasons, the trial court did not abuse its discretion
by allowing the prosecutor to question Morris about her prior
criminal charges and plea agreement.
B. The Prosecutor’s Comment that He Found It Hard to Believe
that Morris Was Unaware of the Gun
1. Additional Facts
¶ 24 During closing argument, defense counsel cited Morris’s and
Godfre’s testimony that the gun belonged to Godfre to support the
11
argument that Erickson did not know the gun was in the car and,
thus, did not knowingly possess it.
¶ 25 In rebuttal, the prosecutor said:
[Defense counsel] said that Miss Morris was
not aware that the gun was in the car. They
don’t see or find the gun until they start
looking for paperwork. This is my car. This is
a very large center console. I take -- I have a
gun -- I’m not gonna take it out of here. It’s
actually bolted in – it’s sitting right there with
the top handle exposed. I get into said car and
I buckle my seat belt. I find it hard to believe
that anyone would have not realized that there
is a gun there in that particular spot that’s
exposed so that an officer can see it in that
particular circumstance.
Defense counsel did not object to this argument.
2. Standard of Review and Applicable Law
¶ 26 “We review prosecutorial statements to which no
contemporaneous objection was made for plain error. Plain error
occurs only when an error so undermines the fundamental fairness
of the trial itself as to cast serious doubt on the reliability of the
jury’s verdict.” Domingo-Gomez v. People, 125 P.3d 1043, 1053
(Colo. 2005) (citation omitted). “Only prosecutorial misconduct
which is ‘flagrantly, glaringly, or tremendously improper’ warrants
reversal.” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App.
12
1997)). “Prosecutorial misconduct in closing argument rarely
(Colo. App. 2010).
¶ 27 We engage in a two-step analysis in reviewing a claim of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we “must determine whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances and, second, whether such actions warrant reversal
according to the proper standard of review.” Id.
¶ 28 Because closing argument is counsel’s opportunity “to point to
different pieces of evidence and explain their significance within the
case,” it “may properly include the facts in evidence and any
reasonable inferences drawn therefrom.” Domingo-Gomez, 125 P.3d
at 1048. “[A] prosecutor has wide latitude in the language and
presentation style used to obtain justice.” Id. “[I]t is not proper,”
however, “for a prosecutor to refer to facts not in evidence or to
make statements reflecting his or her personal opinion or personal
knowledge.” People v. Walters, 148 P.3d 331, 334 (Colo. App.
2006).
13
¶ 29 “Claims of improper argument must be evaluated in the
context of the argument as a whole and in light of the evidence
failure to object is a factor that may be considered in examining the
impact of a prosecutor’s argument and may ‘demonstrate defense
counsel’s belief that the live argument, despite its appearance in a
cold record, was not overly damaging.’” Id. (quoting People v.
Rodriguez, 794 P.2d 965, 972 (Colo. 1990)).
3. The Prosecutor’s Comment, Even if Prosecutorial Misconduct,
Does Not Warrant Reversal Under Plain Error Review
¶ 30 Erickson argues that the prosecutor’s statement that he
“f[ou]nd it hard to believe that anyone would have not realized that
there [was] a gun” in the car because it was “exposed so that an
officer can see it in that particular circumstance” was an improper
expression of his personal opinion regarding Morris’s credibility.
¶ 31 Even if we assume that the comment constituted prosecutorial
misconduct, however, the misconduct was not “flagrantly, glaringly,
or tremendously improper” such that reversal is warranted under
the plain error standard. Domingo-Gomez, 125 P.3d at 1053
14
¶ 32 The allegedly improper comment constituted only one sentence
[are] ‘few in number, momentary in length, and [are] a very small
part of a rather prosaic summation’ do not warrant reversal under
the plain error standard.” (quoting People v. Mason, 643 P.2d 745,
753 (Colo. 1982))). Further, the trial court instructed the jury that
it was “the sole judge[] of the credibility of each witness and the
weight to be given the witness’s testimony.” “Absent a showing to
the contrary, we must presume that the jury understood and
followed the trial court’s instructions.” People v. Bass, 155 P.3d
547, 552 (Colo. App. 2006).
¶ 33 Finally, we consider the lack of an objection to the comment,
which suggests that defense counsel did not believe at the time that
it was overly damaging. See Strock, 252 P.3d at 1153. And, as
noted above, misconduct in closing argument “rarely constitutes
plain error.” Id.
¶ 34 Thus, we conclude that the prosecutor’s comment in rebuttal
closing argument does not warrant reversal.
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C. Cumulative Error
¶ 35 Because we reject each of Erickson’s contentions of error, we
similarly reject his argument that his convictions should be set
aside based on cumulative error. People v. Rios, 2020 COA 2, ¶ 39,
463 P.3d 322, 330 (“Because there was no error, there can be no
cumulative error.”).
III. Conclusion
¶ 36 The judgment is affirmed.
JUDGE FURMAN and JUDGE BROWN concur.
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