Peo v. Maniz ( 2024 )

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<div>22CA1592 Peo v Maniz 10-03-2024 </div>
<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 22CA1592 </div>
<div>Morgan County District Court No. 21CR103 </div>
<div>Honorable Carl S. McGuire, III, Judge </div>
<div> </div>
<div> </div>
<div>The People of the State of Colorado, </div>
<div> </div>
<div>Plaintiff-Appellee, </div>
<div> </div>
<div>v. </div>
<div> </div>
<div>Noe Maniz, </div>
<div> </div>
<div>Defendant-Appellant. </div>
<div> </div>
<div> </div>
<div>JUDGMENT AFFIRMED<span> </span>
</div>
<div> </div>
<div>Division I </div>
<div>Opinion by JUDGE TAUBMAN* </div>
<div>J. Jones<span> and Sullivan, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 3, 2024 </div>
<div> </div>
<div> </div>
<div>Philip J. Weiser, Attorney General, <span>Lane Towery, Assistant Attorney General</span> </div>
<div>Fellow, Denver, Colorado, for Plaintiff<span>-Appellee </span>
</div>
<div> </div>
<div>Megan A. Ring, Colorado State Public Defender, <span>Rachel Z. Geiman</span>, Deputy </div>
<div>State Public Defender, Denver, Colorado, for Defendant-Appellant </div>
<div> </div>
<div> </div>
<div>*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. </div>
<div>VI, § 5(3), and § 24-51-1105, C.R.S. 2024. </div>
<div> </div>
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<div>1 </div>
<div>¶ 1<span> </span><span>Defendant, Noe Maniz<span>, </span>appeals the judgment of conviction </span>
</div>
<div>entered on jury verdicts finding him guilty of first degree assault </div>
<div>(causing serious bodily injury with a deadly weapon) and second </div>
<div>degree assault (causing serious bodily injury).<span> </span>We affirm.<span> </span>
</div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>Maniz and <span>R.</span>B-G. spent a few days at a hotel trying to rekindle </span>
</div>
<div>their relationship. One night, R.B-G. left the hotel and went to t<span></span>he </div>
<div>hospital.<span> <span>She had a black eye, a cut to her face that required </span></span>
</div>
<div>stitches, a facial fracture, and blood on her clothes. </div>
<div>¶ 3<span> </span><span>Maniz was charged with nineteen counts, including first </span>
</div>
<div>degree assault, second degree assault, third degree assa<span></span>ult, </div>
<div>violating bail bond conditions, violating a protection order, and </div>
<div>domestic violence as a habitual offender. A number of t<span></span>he charges </div>
<div>were dismissed, and Maniz went to trial on first and second deg<span></span>ree </div>
<div>assault.<span> <span> </span></span>
</div>
<div>¶ 4<span> </span><span>At trial, the events leading to R.B-<span>G.<span>’</span></span>s injuries were highly </span>
</div>
<div>disputed. A hotel employee testified that the day before the </div>
<div>incident, there had been yelling in the couple<span>’</span><span>s </span>hotel room and a </div>
<div>complaint made to the front desk. On the night of the incident, the </div>
<div>employee heard crying coming from the hotel room and called the </div>
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<div>2 </div>
<div>nonemergency police number<span>. </span>Shortly after that, R.B-<span>G.</span> called the </div>
<div>front desk to say she was leaving the hotel room to go to the </div>
<div>hospital, Maniz had hit her, and she wanted the room locked s<span></span>o </div>
<div>that Maniz could not re-enter.<span> </span>
</div>
<div>¶ 5<span> </span><span>The jury also heard from a responding police officer and </span>
</div>
<div>viewed body camera footage of his interview with R.B-<span>G.</span> at t<span></span>he </div>
<div>hospital. The officer said R.B-<span>G.</span>, who did not appear to be </div>
<div>intoxicated at the hospital, told him that Maniz had punched her </div>
<div>when she asked him to leave the hotel room because she believed </div>
<div>he was intoxicated.<span> </span>
</div>
<div>¶ 6<span> </span><span>However, according to R.B-<span>G.</span><span>’s testimony, </span>she did not </span>
</div>
<div>remember what had happened in the hotel room or at the hospital.<span></span> </div>
<div>She also said she had been very intoxicated that night and <span></span>that her </div>
<div>injuries were probably the result of an accident that occurre<span></span>d </div>
<div>during rough, consensual sex over the bathroom sink<span>. </span>Though she </div>
<div>could not recall the specific events, she said she remember<span>ed</span> </div>
<div>threatening to leave the hotel room at one point, but then offering t<span></span>o </div>
<div>stay if Maniz had rough sex with her.<span> </span><span> </span>
</div>
<div>¶ 7<span> </span><span>The jury convicted Maniz of first degree and second degree </span>
</div>
<div>assault, including an act of domestic violence. The trial court </div>
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<div>3 </div>
<div>sentenced him to twenty-one years in the custody of the </div>
<div>Department of Corrections.<span> </span>
</div>
<div>II.<span> <span>Discussion </span></span>
</div>
<div>¶ 8<span> </span><span>Maniz contends that (1) the trial court erred by ruling <span></span>that the </span>
</div>
<div>defense opened the door to evidence of Maniz<span>’</span>s prior domestic </div>
<div>violence case involving R.B-<span>G.</span>, and (2) the prosecutor<span></span> committed </div>
<div>misconduct by making a closing argument that included the </div>
<div>equivalent <span>of</span> expert testimony and that misstat<span>ed</span> and shift<span>ed</span> <span></span>the </div>
<div>burden of proof.<span> </span>We disagree with both contentions. </div>
<div>A.<span> <span>Opening the Door </span></span>
</div>
<div>1.<span> <span>Standards of Review and Reversal </span></span>
</div>
<div>¶ 9<span> <span>We review a trial court’s evidentiary rulings for an abuse of </span></span>
</div>
<div>discretion. <span>Rojas v. People</span>, 2022 CO 8, ¶ <span>16</span>, 504 P.3d <span></span>296, 302<span>; </span>
</div>
<div>see also People v. Johnson<span>, 2021 CO 35, ¶ <span>16</span>, 486 P.3d 11<span></span>54, 1158 </span>
</div>
<div>(“[W]e review a trial court’s determination of whether a party open<span></span>ed </div>
<div>the door to otherwise inadmissible evidence for an abuse of </div>
<div>discretion.”). <span> A court abuses its discretion when its decision is </span>
</div>
<div>manifestly arbitrary, unreasonable, or unfair, or when it <span></span>misapplies </div>
<div>the law<span>. </span><span>Johnson</span><span>, </span>¶ <span>16</span>, 486 P.3d at 1158. </div>
</div>
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<div>4 </div>
<div>¶ 10<span> </span><span>Maniz contends that the admission of evidence of his prior </span>
</div>
<div>case <span>involving R.B-<span>G.</span> violated his due process right<span></span>s and therefore </span>
</div>
<div>warrants reversal under the constitutional harmless error st<span></span>andard. </div>
<div>See Hagos v. People<span>, 2012 CO 63, ¶ <span>11</span>, 288 P.3d 116, <span></span>119. We </span>
</div>
<div>disagree with this assertion. The constitutional harmless error </div>
<div>standard applies to errors <span>“that specifically and directly offend a </span>
</div>
<div>defendant<span>’</span><span>s constitutional rights<span>.” <span>People v. Flockhart<span></span><span>, 2013 CO 42, </span></span></span></span>
</div>
<div>¶ <span>20</span>, 304 P.3d 227, 233 (quoting <span>Wend v. People</span>, 235 P.3<span></span>d 1089, </div>
<div>1097 (Colo. 2010)).<span> </span>We apply the nonconstitutional harmless error </div>
<div>standard to determine if an erroneous evidentiary ruling warrants </div>
<div>reversal<span>. <span>See People v. Kern<span>, 2020 COA 96, ¶ 13, 474 P.3d 197, </span></span></span>
</div>
<div>201<span>; <span>Yusem v. People<span>, 210 P.3d 458, 469 n.16 (Colo. 2009) </span></span></span>
</div>
<div>(“Erroneous admission of CRE 404(b) evidence is not error <span></span>of </div>
<div>constitutional dimension.”).<span> </span>
</div>
<div>2.<span> <span>Applicable Law </span></span>
</div>
<div>¶ 11<span> </span><span>Otherwise inadmissible evidence can become admissible if <span></span>a </span>
</div>
<div>party opens the door “by presenting incomplete evidence on a </div>
<div>subject.”<span> <span>People v. Heredia-<span>Cobos</span><span>, 2017 COA 130, ¶ <span>20</span>, 415 P.3d </span></span></span>
</div>
<div>860, 865<span>. </span> <span>When a defendant “opens the door to otherwise </span>
</div>
<div>inadmissible evidence, [the prosecution] may then inquire into the </div>
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<div>5 </div>
<div>previously barred matter.” <span>Golob v. People<span>, 180 P.3d 1006, 1<span></span>012 </span></span>
</div>
<div>(Colo. 2008). The “opening the door” doctrine prevent<span></span>s one party </div>
<div>from gaining an unfair advantage through <span>“the selective </span>
</div>
<div>presentation of facts that, without being elaborated or placed in </div>
<div>context, create an incorrect or misleading impression.” <span>Id.</span><span> <span>An</span><span> </span></span>
</div>
<div>opposing party may introduce otherwise inadmissible evidence <span>“</span>only </div>
<div>to the extent necessary to <span>‘</span>rebut any adverse inferences which </div>
<div>might have resulted,<span>’</span> or to correct <span>‘</span>an incorrect or misleading </div>
<div>impression.<span>’”</span><span> <span>People v. Cohen<span>, 2019 COA 38, ¶ <span>26</span>, 440 P.3d 1256, </span></span></span>
</div>
<div>1263 (citations omitted). </div>
<div>3.<span> <span>Additional Facts </span></span>
</div>
<div>¶ 12<span> </span><span>Before trial, the prosecution moved to admit CRE 404(b) </span>
</div>
<div>evidence of Maniz<span>’</span>s prior domestic violence case involving R.<span></span>B-<span>G.</span>, in </div>
<div>which R.B-G. recanted her allegations at trial, leading to Maniz<span>’s</span> </div>
<div>acquitt<span>al</span><span>. The trial court ruled that the evidence was inadmissible </span>
</div>
<div>because it did not find by a preponderance of the evidence t<span></span>hat the </div>
<div>underlying allegations in the case were true<span>. </span>However, the court </div>
<div>found that <span>—</span> subject to a limiting instruction <span>—</span> <span>“</span>if [R.B-<span>G.</span>] testifies </div>
<div>in contradiction to prior statements regarding the facts in <span></span>this case, </div>
<div>she is subject to impeachment with her prior statements reg<span></span>arding </div>
</div></div>
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<div>6 </div>
<div>the alleged events in this case<span>” <span>and “</span></span>is also subject to impeachment </div>
<div>through her prior inconsistent statements made in [the prior c<span></span>ase </div>
<div>with Maniz].<span>” <span> </span></span>
</div>
<div>¶ 13<span> </span><span>At trial, after the prosecution rested, the defense called R.B-<span>G.</span> </span>
</div>
<div>as its only witness. Defense counsel asked R.B-G. whether she ha<span></span>d </div>
<div>ever been helped by the district attorney<span>’</span>s office. <span>She</span> testified t<span></span>hat </div>
<div>the district attorney<span>’s office never “tried to help” her, did n<span></span>ot follow </span>
</div>
<div>up with her, did not call her to ask how she was doing<span></span>, did not offer </div>
<div>her any resources, and did not “give [her] the opportunity <span></span>to talk </div>
<div>about what had happened that night.” <span> She further explained that<span></span> </span>
</div>
<div>she had only spoken to the victim<span>’s advocate “but not the </span>
</div>
<div>prosecution, not the D.A., not law enforcement, until [she] <span></span>took that </div>
<div>upon [her]self.”<span> </span>
</div>
<div>¶ 14<span> </span><span>The prosecutor argued <span>that this testimony “opened the door” </span></span>
</div>
<div>to evidence that the district attorney<span>’</span>s office had had multiple </div>
<div>communications with R.B-<span>G.</span> <span>“in a case prior, as well as t<span></span>his case<span>” </span></span>
</div>
<div>and that R.B-G. had repeatedly indicated that she did not want t<span></span>o </div>
<div>cooperate or testify.<span> </span>Over defense counsel<span>’</span>s objection, the trial </div>
<div>court ruled that the prosecution could introduce such eviden<span></span>ce<span>. </span>
</div>
<div>Before the prosecut<span>or</span> continued with cross-examination, defense </div>
</div></div>
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<div>7 </div>
<div>counsel reiterated his objection that the door had not been opene<span></span>d </div>
<div>to that evidence and that it would be improper impe<span></span>achment </div>
<div>evidence outside the scope of direct examination.<span> </span> </div>
<div>¶ 15<span> </span><span>R.B-G. testified on cross-examination that this was not the </span>
</div>
<div>first time she <span>“had a case like this” with Maniz, she had</span> had contact </div>
<div>“multiple” times with the district attorney’s office “regarding prior </div>
<div>cases,” she <span>had not want<span>ed</span> to testify in those cases, and she had </span>
</div>
<div>changed her story in those cases.<span> </span>R.B-G. also conceded that she </div>
<div>had contact with the victim<span>’</span>s advocate in this case: </div>
<div>[PROSECUTOR:] And you recall that the </div>
<div>Victim<span>’</span><span>s Advocate in this particular matter </span>
</div>
<div>reached out to you right after you got out of </div>
<div>the hospital to extend help to you, didn<span>’</span>t she? </div>
<div>[R.B-<span>G.</span><span>:] Yes, the Victim<span>’</span>s Advocate. </span>
</div>
<div>[PROSECUTOR:] And she represents our office, </div>
<div>doesn<span>’</span><span>t she? </span>
</div>
<div>[R.B-<span>G.</span><span>:] I would </span><span>—</span><span> yes. </span>
</div>
<div>R.B-<span>G.</span><span> <span>did not elaborate on the details of the “prior cases” in <span></span>her </span></span>
</div>
<div>testimony. </div>
<div>¶ 16<span> </span><span>The prosecution then called a victim/witness coordinator as a </span>
</div>
<div>rebuttal witness.<span> <span>She</span></span> testified that <span>in “bad or felony cases” </span>she </div>
<div>reach<span>es</span><span> out to alleged victims to establish relationship<span>s,</span> and that </span>
</div>
</div></div>
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<div>8 </div>
<div>she had spoken with R.B-G. in previous cases. She also said that </div>
<div>R.B-<span>G.</span><span> <span>“usually did not want to cooperate</span></span>,<span>” <span>did not want Maniz <span></span>“to </span></span>
</div>
<div>be held accountable on his charges,” and did not want<span></span> to testify.<span> </span>
</div>
<div>¶ 17<span> </span><span>The jury was not given a contemporaneous limiting instruction </span>
</div>
<div>regarding this testimony.<span> </span>However, the trial court ultimately </div>
<div>instructed the jury as follows: “<span>You heard testimony related to ot<span></span>her </span>
</div>
<div>proceedings other than those charged in this case. The Defendant </div>
<div>is to be tried for the crimes charged in this case, and no other. You </div>
<div>are not to speculate about the charges, status, or outcomes of t<span></span>hose </div>
<div>other cases.<span>”</span><span> </span>
</div>
<div>4.<span> <span>Analysis </span></span>
</div>
<div>¶ 18<span> </span><span>Maniz argues that R.B-<span>G.</span><span>’s testimony</span> did not open the do<span></span>or to </span>
</div>
<div>his prior case involving her because she only testified regarding <span></span>the </div>
<div>district attorney<span>’</span>s communications with her in this case, and <span></span>the </div>
<div>testimony did not create an “<span>incorrect or misleading impression</span><span>” </span>
</div>
<div>that needed to be corrected. The People respond that (1) R.B-<span>G.<span>’</span></span><span>s </span>
</div>
<div>testimony put her credibility at issue and subjected her to </div>
<div>impeachment with prior acts showing a character for </div>
<div>untruthfulness, and (2) she opened the door to impeachment wi<span></span>th </div>
<div>evidence of Maniz<span>’</span>s prior case to explain her <span>“demonstrably unt<span></span>rue </span>
</div>
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<div>9 </div>
<div>statements” about the prosecution’<span>s communications with her. <span></span>We </span>
</div>
<div>agree with the People<span>’s first argument and thus need not reach the </span>
</div>
<div>second. </div>
<div>¶ 19<span> <span>“[E]vidence of specific acts used solely for impeachment is </span></span>
</div>
<div>governed by [CRE] 608(b).” <span>People v. Segovia<span>, 196 P.3d 1126, <span></span>1130 </span></span>
</div>
<div>(Colo. 2008)<span>. </span>Under CRE 608(b)(1), the trial court, <span>in</span> its discretion, </div>
<div>may permit cross-examination of a witness related to a specific </div>
<div>instance of the witness<span>’</span>s conduct if probative of the witness<span>’</span><span>s </span>
</div>
<div>“<span>character for truthfulness or untruthfulness</span><span>.”<span> <span> </span></span></span>
</div>
<div>¶ 20<span> </span><span>When R.B-G. took the stand, she put her credibility at <span></span>issue. </span>
</div>
<div>See Segovia<span>, 196 P.3d <span>at</span> 1130<span>. </span>Here, the questioning about </span>
</div>
<div>R.B-<span>G.</span><span>’</span><span>s actual communications with the district att<span></span>orney<span>’</span>s office </span>
</div>
<div>and about her changing her testimony in a prior case bore squarely<span></span> </div>
<div>on <span>her “</span>character for truthfulness or untruthfulness<span>.”</span><span> </span>CRE </div>
<div>608(b)(1)<span>. <span>Accordingly, this evidence was admissible as </span></span>
</div>
<div>impeachment evidence under CRE 608(b).<span> </span><span>See People v. Phillips</span><span>, </span>
</div>
<div>2012 COA 176, ¶ <span>63</span>, 315 P.3d 136, 153 <span>(“We may uphold the trial </span>
</div>
<div>court<span>’</span><span>s evidentiary decision on any ground supported by t<span></span>he record, </span>
</div>
<div>even if that ground was not articulated or considered by the t<span></span>rial </div>
<div>court.”).<span> <span> </span></span>
</div>
</div></div>
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<div>10 </div>
<div>¶ 21<span> </span><span>Moreover, Maniz was put on notice of the potential </span>
</div>
<div>consequences of calling R.B-G. to testify <span>by</span> the trial court<span>’</span>s <span></span>order </div>
<div>denying the prosecution<span>’</span>s CRE 404(b) motion, <span>but</span> which<span></span> </div>
<div>contemplated <span>“</span>impeachment through [R.B-<span>G.<span>’</span><span>s]</span></span> prior inconsistent<span></span> </div>
<div>statements made in [the prior case with Maniz].<span>” <span> </span></span>
</div>
<div>¶ 22<span> </span><span>Accordingly, the trial court did not abuse its discretion by </span>
</div>
<div>admitting R.B-<span>G.</span><span>’s </span>testimony, as elicited by the defense. </div>
<div>B.<span> <span>Prosecutorial Misconduct </span></span>
</div>
<div>¶ 23<span> </span><span>Maniz contends that the prosecutor committed misconduct </span>
</div>
<div>during rebuttal closing by (1) making an argument equivalent <span></span>to </div>
<div>expert testimony based on facts not in evidence and (2) misstating </div>
<div>and shifting the burden of proof.<span> </span>Because Maniz did not </div>
<div>contemporaneously object to these statements at trial, we apply a </div>
<div>plain error standard of review to both claims, and we discern n<span></span>o </div>
<div>plain error.<span> </span><span>Hagos</span><span>, ¶</span> 14, 288 P.3d at 120. </div>
<div>1.<span> <span>Standard of Review </span></span>
</div>
<div>¶ 24<span> </span><span>We engage in a two-step analysis when reviewing claims of </span>
</div>
<div>prosecutorial misconduct. <span>People v. Sauser</span>, 2020 COA 174, ¶ <span>78<span>, </span></span>
</div>
<div>490 P.3d 1018, 1034. First, we examine whether the prosecuto<span></span>r<span>’</span><span>s </span>
</div>
<div>conduct was improper based on the totality of the circumstance<span></span>s. </div>
</div></div>
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<div>11 </div>
<div>Id.<span> <span>Second, we determine whether that conduct warrants r<span></span>eversal </span></span>
</div>
<div>according to the proper standard of review. <span>Id. </span>
</div>
<div>¶ 25<span> </span><span>When determining whether a prosecutor<span>’</span>s statements were </span>
</div>
<div>improper and whether reversal is warranted, we consider the </div>
<div>language used, the context of the statements, the strength <span></span>of the </div>
<div>evidence, whether the prosecutor improperly appealed to the <span></span>jurors<span>’</span> </div>
<div>sentiments, whether the misconduct was repeated, and any other </div>
<div>relevant factors. <span>People v. Walters</span>, 148 P.3d 331, 335 (Colo. <span></span>App. </div>
<div>2006). </div>
<div>¶ 26<span> </span><span>Under the plain error standard, w<span>e </span>will not reverse unless any </span>
</div>
<div>misconduct was obvious and substantial. <span>Hagos</span>, ¶ 14, 288 P.3d <span>at</span> </div>
<div>120<span>. <span>An error is obvious if it contravenes (1) a statute; (2) a well-</span></span>
</div>
<div>settled legal principle; or (3) Colorado case law.<span> </span><span>People v. Pollard</span><span>, </span>
</div>
<div>2013 COA 31M, ¶ 40, 307 P.3d 1124, 1133.<span> </span>An error is substantial </div>
<div>if it so undermined the fundamental fairness of the trial as t<span></span>o cast </div>
<div>serious doubt on the reliability of the judgment of conviction<span>. </span>
</div>
<div>People v. Smith<span>, 2018 CO 33, ¶ <span>24</span>, 416 P.3d 886, 89<span></span>1. </span>
</div>
<div>¶ 27<span> <span>“Prosecutorial misconduct in closing argument rarely </span></span>
</div>
<div>constitutes plain error.” <span> People v. Smalley<span>, 2015 COA 140, ¶ <span>37<span>, </span></span></span></span>
</div>
<div>369 P.3d 737, 745<span>. </span>To warrant reversal under the plain error </div>
</div></div>
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<div>12 </div>
<div>standard, such <span>misconduct must be “flagrant</span><span>ly,</span> glaringly, <span>or </span>
</div>
<div>tremendously improper.” <span>Domingo-Gomez v. People<span>, <span>125 P.3d 104<span></span>3, </span></span></span>
</div>
<div>1053 (Colo. 2005) (quoting <span>People v. Avila</span>, 944 P.2d 673, 676 (Colo.<span></span> </div>
<div>App. 1997)). </div>
<div>2.<span> <span>Expert Testimony </span></span>
</div>
<div>¶ 28<span> </span><span>During rebuttal closing argument, the prosecutor showed <span>a </span></span>
</div>
<div>PowerPoint presentation, which included a photo showing blood on </div>
<div>the bathroom sink and one showing blood on R.B-<span>G.<span>’</span></span>s sweatshi<span></span>rt. </div>
<div>In referencing the photos, the prosecut<span>or </span>said, </div>
<div>This is the hoodie that [R.B-G.] was wearing </div>
<div>when she went into the hospital. And you will </div>
<div>notice a bit of a blood pattern here on the </div>
<div>inside of that hoodie. <span>. . .</span> Now, ultimately, you </div>
<div>will notice, as well, a pattern that is on the </div>
<div>sink itself. </div>
<div>. . . . </div>
<div>If she were naked at the time, why [are] there </div>
<div>clothing patterns on the sink that she was </div>
<div>leaning on when she was injured, that she, </div>
<div>herself, talks about leaning on. She was </div>
<div>clearly clothed. Look <span>—</span> look at the fiber </div>
<div>marks. </div>
<div>Now, further, look at how these things match </div>
<div>up, these fiber marks that were clearly on her </div>
<div>shirt, because if you look at the photos here, </div>
<div>blood had run down her face, it had pooled </div>
<div>between her breasts and underneath her </div>
<div>breasts, and, ultimately, it had led to a lo[t] of </div>
</div></div>
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<div><div>
<div>13 </div>
<div>blood collecting right here, almost exactly </div>
<div>where she might be leaning onto a sink. </div>
<div>Now, this blood pattern would have also </div>
<div>transferred onto a hoodie that she puts on and </div>
<div>then goes to the hospital. So we know that she </div>
<div>was wearing a shirt, that she leaned on the </div>
<div>sink, that she put a shirt on <span>—</span> <span>or</span> possibly was </div>
<div>wearing it at the time, and then went to the </div>
<div>hospital to show. The physical evidence lines </div>
<div>up with her being clothed when she was </div>
<div>assaulted, not naked. </div>
<div>Defense counsel did not object. </div>
<div>¶ 29<span> </span><span>Maniz contends that this amounted to misconduct because </span>
</div>
<div>the photo of the sink had not been admitted into evidence, and, by </div>
<div>talking about blood patterns, the prosecutor improperly present<span></span>ed </div>
<div>expert opinion. </div>
<div>¶ 30<span> <span>“<span>During closing argument, a prosecutor has wide latitude an<span></span>d </span></span></span>
</div>
<div>may refer to the strength and significance of the evidence, </div>
<div>conflicting evidence, and reasonable inferences that may be <span></span>drawn </div>
<div>from the evidence.<span>”</span><span> </span><span>Walters</span>, 148 P.3d <span>at</span> 334<span>. </span>To protect a </div>
<div>defendant<span>’</span><span>s right to a fair trial, a prosecutor may not<span></span> refer to facts </span>
</div>
<div>not in evidence during closing argument. <span>Id.</span> Prosecutors may not </div>
<div>imply that they have specialized knowledge and expertise in </div>
<div>particular matter<span>s,</span> or encourage jurors to rely on such kn<span></span>owledge </div>
</div></div>
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<div>14 </div>
<div>and expertise, rather than <span>to</span> limit their deliberation to the facts in </div>
<div>evidence and any resulting reasonable inferences.<span> </span><span>See People v. </span>
</div>
<div>Davis<span>, 280 P.3d 51, 54 (Colo. App. 2011) (stating that rule an<span></span>d </span>
</div>
<div>concluding that the trial court erred by permitting an argument by </div>
<div>the prosecutor that <span>“</span>effectively amounted to expert testimony<span>”).</span> </div>
<div>¶ 31<span> </span><span>A photo of the blood on the bathroom sink was admitted at </span>
</div>
<div>trial as Exhibit 9.<span> </span>From our review of the record, the photo </div>
<div>included in the prosecution<span>’</span>s PowerPoint appears to be of the <span></span>same </div>
<div>subject as Exhibit 9 <span>—</span> the blood smear on the bathroom sink.<span> </span>The </div>
<div>PowerPoint slide merely focuses on the blood smear. Although the </div>
<div>PowerPoint slide shows more detail than Exhibit 9, the PowerP<span></span>oint </div>
<div>slide was not <span>“</span><span>new<span>”</span></span> evidence, and we cannot conclude that any </div>
<div>difference between the photo and the slide casts serious doubt on </div>
<div>the reliability of the judgment of conviction. </div>
<div>¶ 32<span> </span><span>As to the prosecutor<span>’</span>s discussion of blood patterns<span>, “</span>counsel </span>
</div>
<div>may properly point to circumstances that may raise questions <span></span>or </div>
<div>cast doubt on a witness<span>’</span>s testimony and draw reasonable infe<span></span>rences </div>
<div>from the evidence as to the credibility of witnesses.<span>” <span>People v. </span></span>
</div>
<div>Wallace<span>, 97 P.3d 262, 270 (Colo. App. 2004). Here, the prose<span></span>cutor </span>
</div>
<div>point<span>ed</span><span> out that one could infer from the physical evidence that </span>
</div>
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<div>15 </div>
<div>R.B-<span>G.</span><span> was clothed when she was bleeding, which would c<span></span>ontradict </span>
</div>
<div>her version of events that she sustained injuries while having se<span></span>x<span>, </span>
</div>
<div>perhaps while fully naked. <span>Al</span>though the prosecutor used t<span></span>he word </div>
<div>“pattern,” we conclude that this <span>did not rise to the level of expert </span>
</div>
<div>testimony. </div>
<div>¶ 33<span> <span>People v. Ramos<span>, 2017 CO 6, ¶¶ 9-10, 388 P.3d 888, 891<span>, o</span>n </span></span></span>
</div>
<div>which Maniz relies, is distinguishable. There, the supreme c<span></span>ourt </div>
<div>concluded that <span>“an ordinary citizen</span>, without nineteen years of </div>
<div>experience investigating thousands of cases involving blood, would </div>
<div>not have been able to <span>provide the same conclusions.”</span><span> </span><span>Id.</span><span> </span>The </div>
<div>supreme court also noted that the jurors asked the detectiv<span></span>e six </div>
<div>questions based on his “training and experience.”<span> </span><span>Id.</span><span> <span>Further, the </span></span>
</div>
<div>court concluded that using technical terms like “spatt<span></span>er” and “cast<span>-</span>
</div>
<div>off” demonstrated “that forensics and the analysis of<span> blood transfe<span></span>r </span>
</div>
<div>—<span> specifically the difference between cast-off and transfer </span>—<span> a<span></span>re </span>
</div>
<div>technical areas not within the realm of an ordinary person’s </div>
<div>experience or <span>knowledge.”</span><span> </span><span>Id. </span>
</div>
<div>¶ 34<span> <span>Davis<span>, 280 P.3d at 51, is also distinguishable. In that case, </span></span></span>
</div>
<div>despite no expert or lay testimony having been admit<span></span>ted “<span>regarding </span>
</div>
<div>trauma victims’ experiences or any ‘stages’ they endure<span> . . <span></span>. the </span>
</div>
</div></div>
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<div><div>
<div>16 </div>
<div>prosecutor made argument and gave a slide presentation <span></span>on these </div>
<div>issues, while attempting to portray them as matters the jury wo<span></span>uld </div>
<div>know from common sense or common experience.<span>”</span><span> </span><span>Id.</span> at 53. The </div>
<div>division concluded that the prosecution was describing <span></span>a variation </div>
<div>of “rape trauma syndrome,” which was improper because it </div>
<div>“implicated the results of social science research<span>, <span>and there is no </span></span>
</div>
<div>reason to believe average jurors would be knowledgeable a<span></span>bout the </div>
<div>reactions and behaviors of rape victims<span>.” <span>Id.</span></span> at 53-54 (citation </div>
<div>omitted).<span> <span>The division reasoned tha<span>t “the prosecutor implied that </span></span></span>
</div>
<div>he had specialized knowledge and expertise in such matters, </div>
<div>perhaps derived from his position as a deputy district att<span></span>orney who </div>
<div>might be experienced in dealing with such victims,” which </div>
<div>“improperly encouraged jurors to rely on such supposed kn<span></span>owledge </div>
<div>and expertise, rather than to limit their deliberation to t<span></span>he facts in </div>
<div>evidence and the reasonable inferences therefrom.” <span>Id.</span><span> at 54. </span>
</div>
<div>¶ 35<span> </span><span>Here, in contrast to both of these cases, the prosecutor only </span>
</div>
<div>asked the jurors to compare the blood patterns on R.B-<span>G.</span><span>’s hoodie </span>
</div>
<div>with those on the sink. In so doing, the prosecutor was drawing </div>
<div>reasonable inferences from the evidence as to R.B-<span>G.<span>’</span></span>s credibility.<span></span> </div>
</div></div>
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<div>17 </div>
<div>¶ 36<span> </span><span>However, even if we assume, without deciding, that some of </span>
</div>
<div>these arguments were improper, they were not flagrantly, glaring<span></span>ly, </div>
<div>or tremendously improper. <span>People v. Allgier</span><span>, </span>2018 COA 122, ¶ <span>51<span>, </span></span>
</div>
<div>428 P.3d 713, <span>723</span><span>.</span><span> </span>Nor were they obvious or substantial. <span>Hagos</span><span>, </span>
</div>
<div>¶ 14, 288 P.3d <span>at</span> 120<span>. </span>The arguments were brief and isolated and </div>
<div>constituted only a small part of the prosecutor<span>’</span><span>s </span>overall closing </div>
<div>argument. <span>See Sauser</span><span>, </span>¶ <span>93</span>, 490 P.3d at 1036<span>. </span> Further, the trial </div>
<div>court instructed the jury before trial that closing arguments are n<span></span>ot </div>
<div>evidence. Moreover, defense counsel did not lodge a </div>
<div>contemporaneous objection to this argument, and <span>“</span>[w]e may </div>
<div>consider a lack of contemporaneous objection by the defendant<span></span> as </div>
<div>demonstrating <span>‘</span>the defense counsel<span>’</span>s belief that the live argument<span></span>, </div>
<div>despite its appearance in a cold record, was not overly damaging.<span>’”</span><span> </span>
</div>
<div>Walters<span>, 148 P.3d <span>at</span> <span>334</span> (quoting </span>Domingo-Gomez<span>, 125 P.<span></span>3d <span>at</span> </span>
</div>
<div>1054).<span> <span>Accordingly, we conclude that the prosecutor<span>’</span>s arguments, </span></span>
</div>
<div>even if improper, did not rise to the level of plain error. </div>
<div>3.<span> <span>Misstating the Law and Shifting the Burden of Proof </span></span>
</div>
<div>¶ 37<span> </span><span>In rebuttal closing argument, the prosecutor read aloud the </span>
</div>
<div>reasonable doubt jury instruction and then argued as follows: </div>
</div></div>
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<div><div>
<div>18 </div>
<div>What that<span>’</span><span>s </span>trying to say, ladies and </div>
<div>gentlemen, is that reasonable doubt cannot be </div>
<div>hanged [sic] on mere possibilities. It can<span>’</span>t be </div>
<div>hanged [sic] on mere what-ifs happened. And </div>
<div>that is the entirety of the defense<span>’</span>s case.<span> </span>What </div>
<div>if they were having rough consensual </div>
<div>intercourse, and what if it got so rough that he </div>
<div>injured her? </div>
<div>But you will recognize what she doesn<span>’</span>t </div>
<div>remember. She conveniently remembers all </div>
<div>the things surrounding that, but even she </div>
<div>can<span>’</span><span>t testify to exactly what happened. They </span>
</div>
<div>have nothing but speculation about what </div>
<div>happened that night. And that is not </div>
<div>reasonable doubt. <span>It<span>’</span></span>s just not. </div>
<div>¶ 38<span> </span><span>Maniz argues that <span>by asserting that “reasonable doubt cannot </span></span>
</div>
<div>be hanged [sic] <span>on mere possibilities,” the prosecutor misstate<span></span>d the </span>
</div>
<div>law regarding reasonable doubt. Even if we assume that <span></span>such a </div>
<div>statement <span>wa</span><span>s </span>improper, we nevertheless conclude that it does not </div>
<div>rise to the level of plain error.<span> </span>The statement occurred only once. </div>
<div>Further, the trial court properly instructed the jury on <span></span>the </div>
<div>reasonable doubt standard.<span> </span>Also, the prosecutor read the prope<span></span>r </div>
<div>standard to the jury just before making this statement<span>. </span><span>See People </span>
</div>
<div>v. Caldwell<span>, 43 P.3d 663, 672 (Colo. App. 2001) (concluding that <span></span>no </span>
</div>
<div>plain error occurred in the prosecutor<span>’</span>s misstatement of t<span></span>he law in </div>
</div></div>
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<div><div>
<div>19 </div>
<div>closing argument because it only occurred once and t<span></span>he jury was </div>
<div>otherwise properly instructed). </div>
<div>¶ 39<span> </span><span>Maniz also argues that the prosecutor shifted the burden of<span></span> </span>
</div>
<div>proof <span>by</span> <span>stating that the defense “ha[d] nothing but <span></span>speculation </span>
</div>
<div>about what happened that night.<span>”</span><span> </span>We are not persuaded. </div>
<div>¶ 40<span> </span><span>The prosecution bears the burden of establishing beyond a </span>
</div>
<div>reasonable doubt every element of the offense with <span></span>which the </div>
<div>defendant is charged. <span>People v. Santana</span><span>,</span><span> </span>255 P.3d 1126, 1130 </div>
<div>(Colo. 2011). This burden never shifts, and the prosecutor shoul<span></span>d </div>
<div>not suggest otherwise through argument or comment. <span></span> <span>Id<span>.</span></span><span> </span>Even </div>
<div>when a prosecutor<span>’</span>s comments might imply that a defendant has </div>
<div>the burden of proof, the comments do not constitute error if<span></span>, </div>
<div>considered in context, they do not actually shift the burden. <span>Id.</span> <span></span>at </div>
<div>1131. An appellate court must evaluate the comments in lig<span></span>ht of </div>
<div>the entire record to determine whether the prosecution actually </div>
<div>shifted the burden of proof. <span>Id<span>.</span></span><span> </span>In assessing whether a prosecutor </div>
<div>shifted the burden of proof, we consider the degree to wh<span></span>ich (1) the </div>
<div>prosecutor specifically argued or intended to establis<span></span>h that the </div>
<div>defendant carried the burden of proof; (2) the prosecutor<span>’</span>s actions </div>
<div>were a fair response to defense counsel<span>’</span>s questioning and </div>
</div></div>
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<div><div>
<div>20 </div>
<div>comments; and (3) the court and counsel informed the jury a<span></span>bout </div>
<div>the defendant<span>’</span>s presumption of innocence and the prosecuti<span></span>on<span>’</span><span>s </span>
</div>
<div>burden of proof.<span> </span><span>Id.</span> at 1131-32. </div>
<div>¶ 41<span> </span><span>First, we do not perceive the <span>prosecutor’s </span>comment <span>as</span> </span>
</div>
<div>reflecting a specific intent to shift the burden of proof to Maniz.<span></span> <span>See </span>
</div>
<div>id. <span>at 1133 (finding no burden shifting where, in part, <span>“the </span></span>
</div>
<div>prosecutor never explicitly argued that the defendant [had] t<span></span>he </div>
<div>burden of proof”<span>).<span> <span> </span></span></span>
</div>
<div>¶ 42<span> </span><span>Second, the prosecutor<span>’</span>s comment was a fair response to </span>
</div>
<div>defense counsel<span>’</span>s arguments. In the defense<span>’</span>s closing, counsel </div>
<div>emphasized R.B-<span>G.</span><span>’s </span>version of the events that her injuries w<span></span>ere </div>
<div>likely the result of rough, consensual sex over the bathroom sin<span></span>k.<span> </span>
</div>
<div>The prosecutor<span>’</span><span>s </span>comment <span>that the defense had “</span>nothing but </div>
<div>speculation<span>” </span><span>merely suggested that there was a lack of eviden<span></span>ce </span>
</div>
<div>supporting the defense<span>’</span>s theory<span>. </span><span>See People v. Walker</span>, 2022 COA </div>
<div>15, ¶ <span>41</span>, 509 P.3d 1061, 1072 <span>(“Commenting on the lack of </span>
</div>
<div>evidence supporting a defense theory does not shift the burden <span></span>of </div>
<div>proof.”)<span>. </span>
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<div>¶ 43<span> </span><span>Finally, the written jury instructions properly informed the </span>
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<div>jury that “[t]<span>he burden of proof is upon the Prosecution t<span></span>o prove to </span>
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<div><div>
<div>21 </div>
<div>the satisfaction of the jury beyond a reasonable doubt the existenc<span></span>e </div>
<div>of all of the elements necessary to constitute the crime charge<span></span>d.<span>” </span>
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<div>Cf.<span> <span>COLJI-Crim. E:03 (2023). The elemental instructions and <span></span>those </span></span>
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<div>pertaining to the inferences the jury could draw from t<span></span>he evidence </div>
<div>also noted the prosecution<span>’</span>s burden.<span> </span>Both the prosecutor<span>’</span>s and </div>
<div>defense counsel<span>’</span>s closing arguments further reinforced the prope<span></span>r </div>
<div>burden of proof.<span> </span>Further, the court instructed the jury at the </div>
<div>beginning of trial regarding the proper burden of proof. In t<span></span>he </div>
<div>absence of evidence to the contrary, we presume that t<span></span>he jury </div>
<div>followed the trial court<span>’</span>s instructions. <span>Santana</span>, 255 P.3d at </div>
<div>1132-<span>33.</span><span> </span>
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<div>¶ 44<span> </span><span>Therefore, we conclude that Maniz<span>’</span>s prosecutorial misconduct </span>
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<div>claims fail. </div>
<div>III.<span> <span>Disposition </span></span>
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<div>¶ 45<span> </span><span>The judgment of conviction is affirmed. </span>
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<div>JUDGE J. JONES and JUDGE SULLIVAN concur. </div>
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