People v. Kenneth L. Garcia ( 2022 )

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
December 22, 2022
2022COA144No. 20CA1697, People v. Garcia — Constitutional Law — Due
Process — Sixth Amendment — Right to an Impartial Jury —
Confrontation Clause — Public Policy Exception; Criminal Law
— Trials — Trial Proceedings — Voir Dire — COVID-19 — Face
Masks
A division of the court of appeals considers a criminal
defendant’s challenge to the precautions the trial court
implemented during trial in response to the COVID-19
pandemic. Specifically, he contends that the court violated his
constitutional rights by (1) requiring the jury venire and impaneled
jurors to wear masks covering their noses and mouths; and
(2) seating the impaneled jury in the courtroom gallery (as opposed
to the jury box). Addressing a novel issue in Colorado, the division
concludes that the trial court’s COVID-19 precautions did not
violate the defendant’s constitutional rights. Because the division
also rejects his other claims, the division affirms the judgment.
COLORADO COURT OF APPEALS 2022COA144Court of Appeals No. 20CA1697
City and County of Denver District Court No. 19CR5690
Honorable Shelley I. Gilman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kenneth L. Garcia,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE NAVARRO
Welling and Johnson, JJ., concur
Announced December 22, 2022
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General
II, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Kenneth L. Garcia, appeals the judgment of
conviction entered on jury verdicts finding him guilty of one count
of theft from an at-risk person — $500 or more, one count of
theft — $20,000-$100,000, and two counts of violating the
pawnbroker act. Garcia challenges the precautions the trial court
implemented during trial in response to the COVID-19 pandemic.
Specifically, he contends that the court violated his constitutional
rights by (1) requiring the jury venire and impaneled jurors to wear
masks covering their noses and mouths; and (2) seating the
impaneled jury in the courtroom gallery (as opposed to the jury
box). Addressing a novel issue in Colorado, we conclude that the
trial court’s COVID-19 precautions did not violate Garcia’s
constitutional rights. Because we also reject his other claims, we
affirm the judgment.
I. Background
¶2 Dr. Sylvia Kerr, age seventy-eight, hired Garcia to fix a fence
on her property. They agreed that Garcia would complete the work
while Kerr was out of town. Upon Kerr’s return, she discovered that
someone had burglarized her home and had stolen numerous items
1
of significant value. Kerr questioned Garcia, who denied any
knowledge about the missing items.
¶3 The police found some of Kerr’s missing property at two
different pawnshops; both had documents designating “Kenneth
Garcia” as the person attempting to make the sales. The police,
during a traffic stop of Garcia, also found him in possession of
Kerr’s personal checkbooks and other property from her home.
During a police interview, Garcia admitted to having more items
belonging to Kerr in his storage unit, which the police verified after
searching the unit pursuant to a search warrant. Garcia also
confirmed that he had sold some of Kerr’s items to a pawnshop.
But in that same interview and (through counsel) at trial, Garcia
maintained that he had collected Kerr’s property and placed it in
his storage unit for safekeeping, with the intent to return the items
to her.
¶4 The jury found Garcia guilty of all charges. The court
sentenced him to a total of nine years in prison.
¶5 On appeal, Garcia contends that the trial court committed
reversible error by (1) requiring the jury venire and impaneled
jurors to wear masks covering their noses and mouths; (2) seating
2
the impaneled jury in the courtroom gallery (as opposed to the jury
box); (3) failing to seat prospective jurors randomly during voir dire;
(4) conducting jury selection without Garcia present; (5) denying his
motion for judgment of acquittal; (6) admitting the testimony of an
unqualified expert witness; and (7) permitting multiple instances of
prosecutorial misconduct. We disagree with all of Garcia’s
contentions of error.
II. Allegations Related to Jurors and
COVID-19 Protocols
¶6 Garcia argues that the trial court’s COVID-19 protocols
affecting prospective and impaneled jurors violated his
constitutional rights. He alludes generally to his rights to due
process, to present a defense, to be present at trial, to
confrontation, to a fair and impartial jury, to effective assistance of
counsel, and to appeal. For the most part, however, he does not
explain how the court’s procedures violated each particular
constitutional right. We discern no constitutional violation.1
1Garcia also asserts, without citing authority or developing an
argument, that the trial court’s procedures violated statutes
addressing voir dire of prospective jurors. Because “we will not
consider a bald legal proposition presented without argument or
development,” we do not consider his statutory claims unless
3
A. Additional Facts
¶7 “COVID-19, the highly contagious and potentially deadly
illness caused by the novel coronavirus, has triggered a global
pandemic the likes of which we haven’t experienced in over a
century.” People v. Lucy, 2020 CO 68, ¶ 1. The pandemic has led
to an “unparalleled public health crisis” and “has turned our lives
upside down.” Id. at ¶¶ 1, 34. As pertinent here, the COVID-19
pandemic has significantly impacted our judicial system, created
“innumerable challenges” for courts to confront, and made it
difficult to hold jury trials in criminal cases. People v. Hernandez,
2021 CO 45, ¶ 44; Lucy, ¶ 34.
¶8 In response to the COVID-19 pandemic, the Chief Justice of
the Colorado Supreme Court issued multiple orders about the
operation of jury trials. As of June 15, 2020, all jury trials were
barred through August 2, 2020. See Office of the Chief Justice,
Updated Order Regarding COVID-19 and Operations of Colorado
State Courts (June 15, 2020), https://perma.cc/6KYD-FJMF. The
otherwise noted. People v. Rios, 2020 COA 2, ¶ 7 n.1; see also
C.A.R. 28(a)(7)(B); People v. Simpson, 93 P.3d 551, 555 (Colo. App.
2003).
4
Chief Justice granted an exemption, however, to allow two test
trials in Denver, one of which was Garcia’s. Thus, Garcia’s trial
took place during the early months of the pandemic — in July 2020
— and was the first jury trial to take place in person in Denver after
the pandemic began.
¶9 The trial court created a safety plan in consultation with
health officials and approved by the Chief Justice. According to the
plan, everyone in the courtroom would be masked during the trial.
The plan followed the Governor’s state-wide mask mandate in force
at the time of Garcia’s trial, which did not provide exceptions for
juries. See Colo. Exec. Order No. D 2020 138 (July 16, 2020),
https://perma.cc/SZG3-K9B3. The impaneled jury was to be
seated throughout the courtroom gallery to ensure social
distancing, and the parties would be seated at tables perpendicular
to the judge on either side of the court room. This arrangement
would result in some jurors sitting in line with or slightly behind
Garcia. See infra Appendix.
¶ 10 Garcia filed a written objection to holding the jury trial in July
2020, raising multiple concerns with the court’s COVID-19 safety
5
protocols. He also moved for a mistrial during the hearing on his
written objections.
¶ 11 The court denied the mistrial motion and Garcia’s objections,
explaining, “The Court believes that it has taken all the appropriate
precautions, and if there’s anything further that we can help with,
we will – we’ll provide those.” After further consideration, the court
permitted trial witnesses to remove their masks while testifying and
to use face shields instead.
B. Requiring Jurors to Wear Face Masks
¶ 12 First, Garcia contends that requiring prospective jurors to
wear face masks during voir dire undermined the parties’ and the
court’s ability to observe each juror’s demeanor, thereby preventing
defense counsel from effectively exercising challenges for cause and
peremptory challenges. Second, he argues that requiring impaneled
jurors to wear masks during the rest of the trial prevented defense
counsel from assessing the jurors’ reactions and making effective
strategic decisions. We do not discern constitutional error.
1. Standard of Review
¶ 13 We review de novo whether a Confrontation Clause violation,
or other constitutional violation, occurred. See Hernandez, ¶ 18.
6
¶ 14 Trial courts, however, have broad “discretionary authority over
the conduct and the scope of the voir dire examination.” People v.
Flockhart, 2013 CO 42, ¶ 37; see also People v. Harlan, 8 P.3d 448,
462 (Colo. 2000), overruled on other grounds by People v. Miller, 113
P.3d 743 (Colo. 2005). Therefore, a trial court’s decisions about voir
dire procedures will not be disturbed absent an abuse of discretion.
A trial court’s management of the courtroom is also reviewed for an
abuse of discretion. Makeen v. Hailey, 2015 COA 181, ¶ 38. An
abuse of discretion occurs when the trial court’s decision is
manifestly arbitrary, unreasonable, unfair, or based on an
erroneous understanding of the law. People v. Gutierrez, 2018 CO
75, ¶ 11.
¶ 15 The People concede that Garcia preserved all his objections to
the trial court’s requirement that the jurors wear masks. We are
not so sure. Because we do not discern error, however, resolving
this preservation question is immaterial to our analysis.
2. Analysis
¶ 16 Whether requiring or permitting jurors to wear masks during
trial violates a defendant’s constitutional rights appears to be a
matter of first impression in Colorado. We join the several courts
7
from other jurisdictions that have considered this question and
have concluded that such precautions in the face of the COVID-19
pandemic do not violate a defendant’s constitutional rights.
¶ 17 With respect to prospective jurors wearing masks during voir
dire, Garcia focuses on the alleged impact on his right to a fair and
impartial jury (thus, implicating his right to due process). Our
analysis adopts the same focus.
¶ 18 A criminal defendant has a constitutional right to a trial before
an impartial jury. People v. Rodriguez, 914 P.2d 230, 260 (Colo.
1996). The jury selection process is designed to produce such a fair
jury. People v. Lefebre, 5 P.3d 295, 300 (Colo. 2000), overruled on
other grounds by People v. Novotny, 2014 CO 18, and abrogated on
other grounds by Vigil v. People, 2019 CO 105. That is, the purpose
of voir dire examination is “to enable counsel to determine whether
any prospective jurors are possessed of beliefs which would cause
them to be biased in such a manner as to prevent the [defendant]
from obtaining a fair and impartial trial.” Rodriguez, 914 P.2d at
260 (citation omitted); see People v. Samuels, 228 P.3d 229, 243
(Colo. App. 2009). But voir dire is not itself a constitutional right.
Lefebre, 5 P.3d at 300; see People v. O’Neill, 803 P.2d 164, 169
8
(Colo. 1990). Rather, voir dire “is a tool that the parties use for the
purpose of revealing and addressing bias in potential jurors.”
Lefebre, 5 P.3d at 300.
¶ 19 Garcia maintains that the jurors’ masks interfered with voir
dire because the masks impeded the court’s and the parties’ ability
to assess each juror’s demeanor. We acknowledge that assessing a
juror’s demeanor can be useful while considering the juror’s
responses to questions or instructions. See Marko v. People, 2018
CO 97, ¶ 21 (noting that a trial court must evaluate a prospective
juror’s responses, demeanor, and body language when ruling on a
challenge for cause); People v. Beauvais, 2017 CO 34, ¶ 31
(recognizing that the demeanor of challenged jurors and challenging
attorneys may be relevant to challenges based on Batson v.
Kentucky, 476 U.S. 79 (1986)). Even so, a mask covering a juror’s
nose and mouth does not make it impossible to assess the juror’s
demeanor. The ability to see a juror’s nose and mouth is not
essential for assessing credibility because “[d]emeanor consists of
more than those two body parts” and “includes the language of the
entire body.” United States v. Crittenden, No. 20-CR-7, 2020 WL
4917733, at *7 (M.D. Ga. Aug. 21, 2020) (unpublished opinion); see
9
United States v. Tagliaferro, 531 F. Supp. 3d 844, 851 (S.D.N.Y.
2021); United States v. Trimarco, No. 17-CR-583, 2020 WL
5211051, at *5 (E.D.N.Y. Sept. 1, 2020) (unpublished opinion);
Guerin v. Commonwealth, ___ S.W.3d ___, ___, 2022 WL 5265083, at
*2 (Ky. Ct. App. 2022).
¶ 20 During questioning of prospective jurors who are masked,
counsel and the court can still observe the jurors’ body language,
tone of voice, eye contact, and other elements of their demeanor.
Not surprisingly, then, “[a]ll courts that have considered this
question so far have universally reached the conclusion that a
defendant can still assess a juror’s credibility and demeanor during
both voir dire and trial while the juror is wearing a face mask.”
United States v. Schwartz, No. 19-20451, 2021 WL 5283948, at *2
(E.D. Mich. Nov. 12, 2021) (unpublished opinion) (collecting cases);
Guerin, 2022 WL 5265083, at *2.
¶ 21 On a related note, Garcia “cites no authority (nor are we aware
of any) holding that defendants have a constitutional right to see
jurors’ uncovered facial expressions during trial.” United States v.
Smith, No. 21-5432, 2021 WL 5567267, at *2 (6th Cir. Nov. 29,
2021) (unpublished opinion); see United States v. Thompson, 543 F.
10
Supp. 3d 1156, 1164 (D.N.M. 2021) (“[T]he Court is aware of no
authority, nor has Mr. Thompson cited any, holding that the Sixth
Amendment right to an impartial jury or Due Process demand that
the defendant have unimpeded visual access to prospective jurors’
facial expressions during jury selection.”).2 Although a defendant
ordinarily must be able to see and hear a prospective juror’s
answers to questions, and a person’s facial expressions play a role
in nonverbal communication, the relevant case law does not “impart
constitutional significance to the ability to view a potential juror’s
entire face.” Prince v. State, ___ A.3d ___, ___, 2022 WL 14707014,
at *9 (Md. Ct. Spec. App. 2022).
¶ 22 Moreover, even if the prospective jurors’ masks made
assessing their demeanor marginally more difficult, both the
defense and the prosecution were equally burdened by this
challenge. The jurors “were masked for all parties and the court,
and the marginal diminution of everyone’s ability to see the lower
2 Garcia’s reliance on Marko v. People, 2018 CO 97, ¶ 21, is
misplaced because the supreme court in that case simply explained
that, when ruling on a challenge for cause, a trial court must
evaluate a prospective juror’s responses, demeanor, and body
language throughout the voir dire. The supreme court did not hold
that a juror’s entire face must be visible throughout voir dire.
11
halves of the potential jurors’ faces didn’t affect the answers they
gave or the court’s ability to evaluate and rule on motions to
exclude them.” Id.; see also Smith, 2021 WL 5567267, at *3 (noting
that the face mask requirement “applied with equal force to both
parties”).
¶ 23 So while the mask requirement was not ideal, it was a
reasonable exercise of the trial court’s discretion to manage voir
dire in light of the daunting challenges of the COVID-19 pandemic.
As noted, the pandemic “presented innumerable challenges to the
important work of trial courts throughout Colorado,” and courts
had to adapt new ways to continue court operations. Hernandez,
¶ 44. The trial court’s procedures were far from arbitrary; they
reflected careful consideration of governing safety and health
measures during “an unprecedented public health crisis.” Lucy,
¶ 16; see Commonwealth v. Davis, 273 A.3d 1228, 1242 (Pa. Super.
Ct. 2022); Prince, 2022 WL 14707014, at *9 (“[I]t was not
unreasonable for the court to observe the constraints posed by the
COVID-19 pandemic and the paramount importance of public
health and safety.”).
12
¶ 24 Finally, and for similar reasons, we reject Garcia’s claim that
requiring the impaneled jury to wear masks during opening
statements, the presentation of evidence, and closing arguments
violated his constitutional rights. Garcia says the masks prevented
defense counsel “from assessing the jury’s reaction to the evidence”
and denied defense counsel “sufficient information to make effective
strategic and tactical decisions during the trial.”
¶ 25 Once again, however, Garcia’s arguments rest on the notion
that it is impossible to assess a juror’s demeanor without seeing the
juror’s nose and mouth. We reject that notion, as have other courts
that have considered the question in the context of impaneled
jurors’ masks during the trial. See Schwartz, 2021 WL 5283948, at
*2; Trimarco, 2020 WL 5211051, at *5; see also Crittenden, 2020
WL 4917733, at *7 (addressing a similar issue with respect to
masked witnesses). Indeed, Garcia does not identify which tactical
decisions of his counsel were allegedly affected by the jurors’
masks. “Mere possibilities do not give rise to Constitutional
violations, especially where they are as speculative as those alleged
here.” Tagliaferro, 531 F. Supp. 3d at 852.
13
¶ 26 In sum, we discern no error in the trial court’s decision to
require prospective and impaneled jurors to wear masks during jury
selection and at trial.
C. Seating of Impaneled Jurors
¶ 27 Garcia next raises two arguments related to the seating
arrangement in the courtroom in response to the COVID-19
pandemic. He argues that seating the impaneled jurors in the
gallery during the trial violated his constitutional rights because
some jurors could not see his face during the entire trial. He also
argues that some jurors were seated farther away from the witness
stand than in a typical trial, reducing their ability to evaluate the
witnesses’ demeanor. Although Garcia asserts generally that this
arrangement violated a host of his constitutional rights, he cites
authority dealing with only his right to confrontation. Hence, we
limit our analysis to the confrontation right.
1. Jurors’ Ability to Observe Garcia’s Face
¶ 28 To reiterate, we review de novo a possible Confrontation
Clause violation, and we review for an abuse of discretion the trial
court’s management of the courtroom, including its arrangement.
See Makeen, ¶ 38.
14
¶ 29 Garcia maintains that seating some jurors where they could
not see his face was improper because he was “entitled to have the
jury be able to view [his] demeanor during witness testimony.” He
cites People v. Boykins, in which a division of this court concluded
that “the right to cross-examine witnesses is an indispensable
component of the Confrontation Clause, and includes the right of
an accused to have the jury observe his or her demeanor.” 140
P.3d 87, 92 (Colo. App. 2005). In support of the proposition that a
defendant’s right to confront witnesses also includes the right to
have the jury observe the defendant’s demeanor, however, the
division cited only Justice Kennedy’s concurring opinion (joined by
no other justice) in Riggins v. Nevada, 504 U.S. 127, 142 (1992).
The accuracy of this proposition is debatable. See United States v.
Petit, 496 F. Supp. 3d 825, 828 (S.D.N.Y. 2020) (“In actuality, there
is no such right [to have the trier of fact observe the defendant
throughout trial], and the only authority defendants cite in its
support is a non-precedential concurring opinion by Justice
Kennedy in Riggins . . . .”); cf. Smith, 2021 WL 5567267, at *3
(remarking that it is “quite a stretch” to argue that the right to see
jurors’ facial expressions during trial is on par with the right to
15
confront the witnesses for the prosecution, particularly given that
the alleged right to observe jurors’ noses and mouths is not explicit
in the Constitution).
¶ 30 Still, assuming without deciding that a defendant’s
confrontation right includes the right to have the jury observe the
defendant’s demeanor, such a right is not absolute. Although the
Confrontation Clause reflects a preference for face-to-face
confrontation, this preference must occasionally give way to
considerations of public policy and the necessities of the case.
Hernandez, ¶ 20. In the context of a witness’s testimony, for
instance, “the right may be satisfied without face-to-face
confrontation ‘where denial of such confrontation is necessary to
further an important public policy’ and where the testimony’s
reliability is otherwise assured.” Id. (quoting Maryland v. Craig, 497
U.S. 836, 850 (1990)).
¶ 31 “Accordingly, observation of demeanor by the jury cannot be
an irreducible constitutional requirement and must be subject to
exception in certain circumstances.” Crittenden, 2020 WL
164917733, at *7.3 Like the mask requirement, the positioning of the
jurors in the gallery here furthered an important public policy —
ensuring the safety of everyone in the courtroom in the midst of an
extraordinary global pandemic by having jurors sit apart. Id. at *6;
see Tagliaferro, 531 F. Supp. 3d at 850 (“[E]ven if physical
confrontation issues are implicated, the [court’s] mask protocol fits
comfortably within the public policy exception of the Confrontation
Clause and therefore does not offend the Sixth Amendment.”).
Indeed, our supreme court has recognized that maintaining the
safety of all court users in light of the health concerns posed by
COVID-19 is an important public policy that may justify some
limitations on a defendant’s confrontation right. See Hernandez,
¶¶ 24-27 (“[P]ermitting the prosecution to appear, and the witnesses
to testify, at [an immunity hearing] via WebEx does not amount to a
violation of Hernandez’s confrontation right.”); see also Roman Cath.
Diocese v. Cuomo, 592 U.S. ___, ___, 141 S. Ct. 63, 67 (2020)
3We also note that even jurors seated behind and to the side of
Garcia could assess his demeanor to some degree because, as
discussed, demeanor consists of more than facial expressions.
17
(“Stemming the spread of COVID-19 is unquestionably a compelling
interest . . . .”).
¶ 32 Therefore, the limitation on some jurors’ ability to see Garcia’s
entire face during the trial did not violate his right to confrontation.
2. Jurors’ Ability to Observe Witnesses
¶ 33 Garcia also argues that, because the jury sat in the gallery,
some jurors were up to eight feet farther from the witnesses than
“[u]nder normal circumstances.” He says this distance “likely
negatively affected” those jurors’ ability to evaluate the witnesses’
demeanor.
¶ 34 Even accepting as true Garcia’s assertions about the distances
here as compared to those in “normal circumstances,” we see no
constitutional violation. This social distancing policy did not
deprive Garcia of meaningful cross-examination. The witnesses
were not masked during their testimony, and Garcia does not allege
any impediment to the jurors’ ability to hear the witnesses. See
Tagliaferro, 531 F. Supp. 3d at 850 (“[B]ecause witnesses will testify
using courtroom microphones, there will be no impediment to
18
audibility for the jurors who are seated in the public gallery.”).4 On
the contrary, the record reveals that the extra distance did not
impact the jurors’ ability to observe testifying witnesses because the
trial court repeatedly asked jurors if they could see and hear the
witnesses and no juror ever expressed any difficulties.
¶ 35 For these reasons, the court’s decision to seat the jury
throughout the gallery presented, at most, a minimal limitation on
the jurors’ ability to assess the demeanor of witnesses at trial.
“Such a minimal disturbance [was] vastly outweighed by the
compelling interest in resuming criminal trials and the compelling
need to do so safely.” Petit, 496 F. Supp. 3d at 829. Hence, we do
not discern a violation of Garcia’s constitutional rights. See id. at
828-29 (discerning no Confrontation Clause violation where the
defendant alleged that “a juror sitting 60 or more feet from a
witness encased in a plexiglass cube with light reflecting off it and
4We offer no opinion on whether requiring witnesses to wear masks
during their testimony impairs a defendant’s constitutional rights.
19
creating a glare likely cannot make an informed assessment of the
witness’s testimony”).5
III. Selection of Prospective Jurors
¶ 36 Garcia contends that the trial court erred by not randomly
seating potential jurors in the jury selection room. He says this
procedure violated his constitutional right to a fair and impartial
jury that represents a fair cross-section of the community as well as
statutory mandates related to jury selection. We disagree.
¶ 37 Prospective jurors were identified by the time they checked in
at the courthouse. They were then assigned to seats in the jury
selection room in the order that they checked in. Garcia says this
process made the potential jurors who arrived earlier, were seated
in lower seat numbers, and were allegedly more inclined to convict
a defendant (the “eager beavers,” as he calls them) more likely to be
5 As an overarching criticism, Garcia also maintains that the
COVID-19 pandemic was foreseeable and, thus, the court system
should have prepared for it. Regardless of the accuracy of the
premise that the pandemic was foreseeable, Garcia does not
indicate what other measures the trial court here should have
adopted in response. Nor does he cite any authority holding that
such other theoretical measures were constitutionally mandated.
Consequently, irrespective of whether the safety measures here
were flawless, we discern no constitutional violation or abuse of
discretion.
20
on the jury. According to Garcia, this prevented a fair “jury pool”
because it was not a random selection process.
¶ 38 Garcia did not raise this objection below, and we see no error,
much less plain error. See People v. Walker, 2022 COA 15, ¶¶ 57,
68 (explaining that we review unpreserved claims for plain error and
setting forth the plain error standard).
¶ 39 The Colorado Uniform Jury Selection and Service Act outlines
the procedures for selecting potential jurors from the community.
See §§ 13-71-107 to -110, C.R.S. 2022. As Garcia acknowledges,
nothing in this act dictates how a court must seat jurors after they
check in for jury duty. Thus, there was no statutory error. And he
cites no authority and develops no argument for his assertion that
the jury selection process here violated his constitutional rights.
Because we will not consider a bald legal proposition presented
without argument or development, we do not address this claim any
further. People v. Rios, 2020 COA 2, ¶ 7 n.1.
IV. Garcia’s Presence at Jury Selection
¶ 40 Garcia asserts that he was denied his right to be present for
jury selection. The record, however, refutes this contention and
shows that he was present for voir dire and other parts of the trial.
21
Each transcript of the proceedings shows that Garcia was present.
Although he was late to some proceedings, the trial court waited for
him to arrive before beginning the substantive part of the
proceedings.
V. Sufficiency of the Evidence
¶ 41 Garcia next contends that the evidence was insufficient to
support his convictions. We are not persuaded.
¶ 42 In analyzing the sufficiency of evidence, we consider whether
the relevant evidence, both direct and circumstantial, when “viewed
as a whole and in the light most favorable to the prosecution, is
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant is guilty of the charge beyond a reasonable
doubt.” People v. Harrison, 2020 CO 57, ¶ 32 (citation omitted).
¶ 43 According to Garcia, the prosecution presented insufficient
evidence of (1) his identity as the person who attempted to sell
Kerr’s property at the pawnshops and (2) the value of the items.
A. Garcia’s Identity
¶ 44 As charged here, a person commits theft if the person
“knowingly obtains, retains, or exercises control over anything of
value of another without authorization” and “[i]ntends to deprive the
22
other person permanently of the use or benefit” of the thing of
value. § 18-4-401(1)(a), C.R.S. 2022. A customer who knowingly
gives a pawnbroker false information, as defined by statute,
commits a criminal offense. § 29-11.9-104(5), C.R.S. 2022.
¶ 45 Garcia argues that, because neither pawnbroker identified him
in court as the seller of Kerr’s property, “there was only
circumstantial evidence of any purpose to deprive Dr. Kerr of her
belongings.” But such intent may be proved by either direct or
circumstantial evidence, see Harrison, ¶ 32, and there was ample
evidence that Garcia was the person trying to sell Kerr’s property.
¶ 46 Both Kerr and the detective who interviewed Garcia identified
Garcia in court. Garcia admitted during the interview that he sold
items belonging to Kerr at the pawnshops. The prosecution
presented a surveillance video showing Garcia at one pawnshop.
Both pawnshop owners testified about their interactions with a man
named Kenneth Garcia who was selling property that the police
later determined belonged to Kerr. The prosecution also presented
23
multiple pawnshop tickets from those sales that included the name
Kenneth Garcia.6
¶ 47 Moreover, the evidence showed that Garcia had items
belonging to Kerr in his storage unit, and he admitted he was the
only person with access to it. True, in his police interview, Garcia
asserted both that he did not know that the property belonged to
Kerr and that he was planning to return it to her after storing it for
safekeeping. Yet he told Kerr that he did not know what happened
to her property when she confronted him upon her return from
vacation.
¶ 48 Given all this, the evidence was more than sufficient to
support the jury’s findings that Garcia took Kerr’s property with the
intent to permanently deprive her of it and that Garcia gave false
information to the pawnbrokers about that property.
6 Although Garcia claims that the name Kenneth Garcia is common
in Denver, no evidence admitted at trial supports this claim.
Moreover, the prosecution presented evidence showing more than
that the tickets bore the same name as Garcia’s. Cf. People v.
Cooper, 104 P.3d 307, 312 (Colo. App. 2004) (noting that such
documentary evidence might be insufficient in a habitual criminal
trial). The other evidence pointing to Garcia was abundant.
24
B. Value of Stolen Property
¶ 49 To prove theft as a class 4 felony, the prosecution must
demonstrate that the value of the stolen property is $20,000 or
more but less than $100,000. § 18-4-401(2)(h). To prove theft from
an at-risk person as a class 3 felony, the prosecution must
demonstrate that the value of the stolen property is at least $500.
§ 18-6.5-103(5), C.R.S. 2022.7
¶ 50 To prove this value, the prosecution must present “competent
evidence of the reasonable market value of the item at the time of
the commission of the alleged offense.” People v. Jaeb, 2018 COA
179, ¶ 40. “Market value is what a willing buyer will pay in cash to
the true owner for the stolen items.” Id.¶ 51 In this case, the prosecution presented an expert, Dewey
Smith, who testified about the value of the stolen items. Garcia
argues that this evidence was not sufficient to establish the value
because Smith’s appraisal was speculative. According to Garcia,
Smith’s opinion was based on photographs of some items in pristine
7Kerr was an “[a]t-risk adult” because she was seventy years of age
or older at the time of the crimes. § 18-6.5-102(2), C.R.S. 2022.
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condition rather than a review of the missing items in their actual
condition.
¶ 52 During his testimony, Smith discussed deterioration and how
the actual condition of an item may impact its value. He testified
that he considered each item’s condition and potential deterioration
when determining the value of all the items. Most significantly,
Smith testified that, even if all the items he considered had been in
“poor” condition — the worst condition ranking he used during his
evaluation — the market value of the items listed as stolen by Kerr
would still have exceeded $20,000.
¶ 53 This evidence was sufficient to demonstrate that the value of
the property met the statutory thresholds at issue here.
VI. Expert Witness Qualification
¶ 54 Garcia asserts that the trial court erred “by admitting the
testimony of an unqualified ‘expert’ as to value,” referring to Smith’s
testimony. But while Garcia points to various facts and procedural
history surrounding Smith’s testimony, as well as to case law
pertaining to whether a witness is qualified as an expert, Garcia
makes no attempt to apply the law to the facts here. He merely
offers a description of the applicable law and declares, without
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analysis, that the trial court erred. Because Garcia provides no
analysis or argument to support his conclusion, we conclude that
he has not adequately presented this issue, and we decline to
consider it. See People v. Hebert, 2016 COA 126, ¶ 17; People v.
Hill, 228 P.3d 171, 176 (Colo. App. 2009).
VII. Alleged Prosecutorial Misconduct
¶ 55 Finally, Garcia maintains that the trial court erred by failing to
address prosecutorial misconduct during voir dire, opening
statements, and closing arguments. He is mistaken.
A. Relevant Law
¶ 56 In reviewing a claim of prosecutorial misconduct, “we consider
whether the prosecutor’s conduct was improper and whether any
impropriety requires reversal.” Walker, ¶ 27. “Whether a
prosecutor’s statements constitute misconduct is generally a matter
left to the trial court’s discretion.” Domingo-Gomez v. People, 125
P.3d 1043, 1049 (Colo. 2005). We will not disturb the trial court’s
rulings on alleged misconduct absent a showing of an abuse of
discretion. Walker, ¶ 27.
¶ 57 Garcia’s claims are unpreserved because he did not raise them
in the trial court. Where a claim of error is not preserved, we may
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reverse only if plain error occurred. Hagos v. People, 2012 CO 63,
¶ 14. A trial court’s failure to address alleged prosecutorial
misconduct can be plain error only if the conduct was “flagrantly,
glaringly, or tremendously improper.” Walker, ¶ 28 (citation
omitted); see also Hagos, ¶ 23 (reversals on plain error review “must
be rare to maintain adequate motivation among trial participants to
seek a fair and accurate trial the first time”).
B. Application
¶ 58 Garcia alleges four instances of prosecutorial misconduct.
¶ 59 First, during voir dire, the prosecutor told prospective jurors
that “Mr. Garcia’s asked for a trial.” Garcia argues that this
comment encouraged jurors to blame him for having to attend jury
duty during a pandemic and that this comment was a
misrepresentation of the record because Garcia had agreed to a plea
deal (which the trial court had rejected). In context, however, the
prosecutor simply acknowledged that this case presented one of the
first jury trials conducted after the start of the pandemic. The
prosecutor also emphasized that “a trial is something that is the
cornerstone of the criminal justice system” and Garcia was “entitled
to have a trial.” And both parties were able to question prospective
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jurors about whether they would be comfortable serving on the jury
during the COVID-19 pandemic. We thus see no real danger that
jurors interpreted the prosecutor’s anodyne comment as placing
blame on Garcia or suggesting that they should harbor bias against
him as a result.
¶ 60 Second, in opening statement, the prosecutor referred to Kerr
as “our victim” before immediately clarifying that “I guess a legal
term would be our alleged victim at this point.” The prosecutor
later again referred to Kerr as “our victim.” A prosecutor’s reference
to an alleged victim as “our victim,” however, is not misconduct per
se, and nothing about the context here renders it such. See People
v. Williams, 961 P.2d 533, 536 (Colo. App. 1997) (holding that a
prosecutor’s references to “our victim,” “my victim,” and “your
witnesses” were not improper), rev’d on other grounds, 984 P.2d 56(Colo. 1999).
¶ 61 Third, in closing, the prosecutor argued the following about
whether the evidence showed reasonable doubt about Garcia’s guilt:
Folks, our argument to you, if you were to find
reasonable doubt here, you would have no
choice but to come up with some — but to
speculate or to formulate some sort of reason
to let the defendant off the hook, because the
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evidence that you have heard, that has been
accepted by the court, that’s in the binder and
it’s on those tapes, shows that there is no
reasonable doubt. There is no hesitation here.
There’s nothing to imagine, there’s nothing to
speculate about. The defendant is guilty.
According to Garcia, the prosecutor improperly asserted that the
jury would need to speculate in order to find him not guilty. But in
context, the prosecutor merely argued that the evidence did not
support the defense’s theory, which is not misconduct. See Walker,
¶ 41 (“Commenting on the lack of evidence supporting a defense
theory does not shift the burden of proof.”).
¶ 62 Fourth, Garcia says in his opening brief that the prosecutor
“simply made up evidence out of thin air” during closing argument
by remarking that Garcia had reportedly hired “strippers” and
“former strippers,” as well as people named “Alex” and “Katie,” to
work for him on Kerr’s property. As Garcia acknowledges in his
reply brief, however, the prosecutor referred to information that
came into evidence through Garcia’s police interview. It is not
improper for a prosecutor to comment on the evidence. See People
v. Conyac, 2014 COA 8M, ¶ 132.
¶ 63 We therefore reject the claims of prosecutorial misconduct.
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VIII. Conclusion
¶ 64 The judgment is affirmed.
JUDGE WELLING and JUDGE JOHNSON concur.
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