Peo v. Burkard

22CA1680 Peo v Burkard 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1680
Larimer County District Court No. 20CR1939
Honorable C. Michelle Brinegar, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Joshua Burkard,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE KUHN
Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Robert Joshua Burkard, appeals the judgment of

conviction entered on jury verdicts finding him guilty of one count

each of impersonating a peace officer and false reporting to

authorities. We affirm.

I. Background

¶2 In September 2020, police officers were dispatched to

investigate the victim’s report that her boyfriend, Burkard, had

sexually assaulted her. A few days later, Burkard contacted the

victim from an unknown phone number to inquire whether she had

been in contact with law enforcement regarding the incident. He

began their text message exchange by falsely claiming that he was

contacting the victim from his parole officer’s phone. After the

victim asked Burkard why he was using the parole officer’s phone,

he responded, “Going back to mine.”

¶3 But shortly thereafter, Burkard sent the victim additional

messages from the same number, pretending that they were

communications from his parole officer, Lucas Singleton, and

ostensibly trying to get the victim to file a statement with the police

department regarding the incident. Among other messages,

Burkard wrote:

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• “Well I [am] taking [Burkard] to th[e] station w[i]ll you come

and file a statement”;

• “You[’]r[e] going to have to by the end of the day”;

• “This is [O]fficer [L]ucas I need you to answer your phone”;

and

• “We are going to need a[n] explanation.”

¶4 During this text exchange with the unknown number, the

victim responded that she had already made her statement to the

police. She also directed Burkard, in the guise of “Officer Lucas,” to

contact “[her] detective” and provided him with contact information

for Investigator Ryan Adams. Undeterred, Burkard then called

Investigator Adams and again misrepresented himself as Parole

Officer Singleton (whom he identified as “Officer Lucas”):

[INVESTIGATOR ADAMS:] Investigations
division, this is Ryan.

[BURKARD:] Yeah, this is Officer Lucas, and
we will just need [the victim] to come on down
to the station. . . . Tell [the victim] she needs
to come to the station Loveland Police
Department.

¶5 The prosecution charged Burkard with impersonating a peace

officer under section 18-8-112, C.R.S. 2024, which states that a

2
person commits the offense by “falsely pretend[ing] to be a peace

officer and perform[ing] an act in that pretended capacity.”1 After

the close of evidence, the trial court granted a defense motion to

add false reporting to authorities as a lesser nonincluded offense.2

The jury found Burkard guilty of both crimes. The trial court then

sentenced him to 2 years in prison for impersonating a peace officer

and 180 days of jail time for false reporting to authorities, to be

served concurrently in the custody of the Department of

Corrections.

II. Analysis

¶6 On appeal, Burkard contends that his conviction for

impersonating a peace officer can’t stand because (1) section

18-8-112 is unconstitutionally overbroad and vague; (2) the trial

1 Impersonating a peace officer was a class 6 felony when Burkard

committed these acts. See § 18-8-112(2), C.R.S. 2020. It’s a class
5 felony under the current version of the statute. § 18-8-112(2),
C.R.S. 2024.

2 Specifically, the added count was for false reporting of identifying

information to law enforcement authorities. See § 18-8-111(1)(c),
C.R.S. 2020. Subsection (1)(c) has since been repealed and
relocated to section 18-8-111.5, C.R.S. 2024. See Ch. 462, sec.
277, § 18-8-111, 2021 Colo. Sess. Laws 3195.

3
court reversibly erred by admitting certain testimony from the

victim; and (3) the court reversibly erred by allowing the

prosecutors to engage in misconduct during closing and rebuttal

closing arguments. We address each of these contentions in turn.

A. The Constitutionality of Section 18-8-112

¶7 Burkard first contends that Colorado’s impersonating a peace

officer statute is unconstitutionally overbroad and vague, both

facially and as applied to his conduct.

1. Applicable Law and Standard of Review

¶8 A statute is overbroad if its scope is so comprehensive that it

restricts or has a chilling effect on speech protected by the First

Amendment. See People v. Graves, 2016 CO 15, ¶ 12. A defendant

can bring a facial overbreadth challenge to a statute that impacts a

constitutionally protected activity, even when his own activity is not

protected. People v. Hickman, 988 P.2d 628, 635-36 (Colo. 1999).

But to prevail on such a challenge, the defendant “must show that

the overbreadth of the statute is both real and substantial, judged

in relation to the statute’s plainly legitimate sweep.” Graves, ¶ 14.

In evaluating an overbreadth challenge, the court must decide

whether there is a substantial encroachment to any constitutionally

4
protected speech. See Hickman, 988 P.2d at 636. Unless the

statute reaches a substantial amount of constitutionally protected

speech, an overbreadth challenge fails. Graves, ¶ 15.

¶9 If a statute reaches protected speech but is not substantially

overbroad, a defendant must show that the statute is

unconstitutional as applied to his conduct. See People v. Campbell,

174 P.3d 860, 866 (Colo. App. 2007). “[A]n as-applied challenge

alleges that the statute is unconstitutional as to the specific

circumstances under which a defendant acted.” People v. Ford, 232

P.3d 260, 263 (Colo. App. 2009).

¶ 10 While the overbreadth doctrine derives from the First

Amendment, People v. Moreno, 2022 CO 15, ¶ 13, the vagueness

doctrine is rooted in due process principles that a statute must

(1) “give fair warning of prohibited conduct so that individuals may

conform their actions accordingly” and (2) “establish standards that

are sufficiently precise to avoid arbitrary and discriminatory

enforcement,” Graves, ¶ 17. Consequently, “a conviction fails to

comport with due process where it is obtained under a statute that

is so vague that it ‘fails to provide a person of ordinary intelligence

fair notice of what is prohibited, or is so standardless that it

5
authorizes or encourages seriously discriminatory enforcement.’”

Id. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

¶ 11 We review the constitutionality of a statute de novo. Id. at ¶ 9.

2. The Parties’ Arguments

¶ 12 In support of his overbreadth challenge, Burkard argues that

the statute sweeps in a substantial amount of constitutionally

protected speech because while it proscribes “an act” in the

pretended capacity, the statute doesn’t define that term or include

any other language that would limit the statute’s reach to the acts

within its legitimate sweep. Under these circumstances, he asserts,

“the impersonating a peace officer statute reaches far beyond its

legitimate aims and constitutional legislative goals” of ensuring

“public safety and protecting the reputation of law enforcement.”

Likewise, Burkard contends that the statute is “unconstitutionally

vague because the undefined term ‘act’ fails to provide fair warning

of prohibited conduct and authorizes arbitrary and discriminatory

enforcement.”

¶ 13 The People argue that Burkard’s overbreadth and vagueness

challenges aren’t properly before us because he didn’t raise them in

the trial court. Burkard concedes that he didn’t preserve those

6
challenges in the trial court but asserts that we should nonetheless

review his claims because doing so would best serve the goals of

efficiency and judicial economy. See Hinojos-Mendoza v. People,

169 P.3d 662, 667-68 (Colo. 2007), abrogated on other grounds as

recognized by Phillips v. People, 2019 CO 72, ¶¶ 32-33.

3. Whether to Address the Merits of Burkard’s
Unpreserved Constitutional Challenges

¶ 14 Constitutional arguments generally must be explicitly raised in

the trial court to alert the court to the challenger’s contentions and

allow it to develop a factual record on the issue. People v. Allman,

2012 COA 212, ¶ 13. That is particularly true when a party, such

as Burkard here, asserts that a statute is unconstitutional as

applied to his conduct. People v. Veren, 140 P.3d 131, 140 (Colo.

App. 2005). If a party fails to challenge the constitutionality of a

statute in the trial court, then the court doesn’t make sufficient

factual findings regarding that claim for our review. Thus, for an

appellate court to entertain an unpreserved as-applied

constitutional challenge, “it is imperative that the trial court make

some factual record that indicates what causes the statute to be

unconstitutional as applied.” Id.; see also People v. Patrick, 772

7
P.2d 98, 100 (Colo. 1989) (“We again stress that we cannot

determine the as-applied constitutionality of a statute based upon

an incomplete record of the facts.”); People v. Mountjoy, 2016 COA

86, ¶ 38 (declining to review a defendant’s as-applied challenge

when the defendant didn’t raise the issue in the trial court and the

court made no factual findings to be reviewed), aff’d on other

grounds, 2018 CO 92M; People in Interest of L.C., 2017 COA 82,

¶ 17 (“Appellate courts generally decline to address unpreserved

as-applied challenges to the constitutionality of a statute because of

the lack of a developed record.”).

¶ 15 As to the unpreserved facial challenges to the statute, Burkard

and the People argue divergent case law. The People urge us to

follow cases stating that constitutional challenges should not be

raised for the first time on appeal, while Burkard argues that doing

so here would be an appropriate exercise of our discretion,

particularly because the review would “clearly further judicial

economy.” See People v. Houser, 2013 COA 11, ¶¶ 29-35

(describing the different approaches to unpreserved constitutional

challenges).

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¶ 16 In this case, however, we conclude that we need not choose

one of these paths because any error here would not have been

plain in any case.3

4. Any Error Here Wasn’t Plain

¶ 17 Burkard and the People also disagree on whether plain error

applies to his claim. Burkard argues that plain error doesn’t apply

when a statute is unconstitutional. We disagree. Unpreserved

3 We disagree with Burkard’s argument that we “should exercise

[our] discretion to review [his] constitutional claims because a
miscarriage of justice would result if his conviction stands under a
plainly unconstitutional statute.” While we may take up
unpreserved issues in civil cases to prevent a miscarriage of justice,
that standard doesn’t apply in criminal cases. See JW Constr. Co. v.
Elliott, 253 P.3d 1265, 1271 (Colo. App. 2011) (collecting cases); see
also People in Interest of M.B., 2020 COA 13, ¶ 21 (recognizing the
miscarriage of justice exception for review of unpreserved errors in
dependency and neglect cases). Rather, we generally review
unpreserved issues in criminal cases for plain error. See Hagos v.
People, 2012 CO 63, ¶ 14. And unlike its federal counterpart, the
miscarriage of justice component is not part of Colorado’s plain
error framework. See People v. Greer, 262 P.3d 920, 932-33 (Colo.
App. 2011) (J. Jones, J., specially concurring); see also People v.
Crabtree, 2024 COA 40M, ¶¶ 68-71 (declining to adopt the federal
plain error analytical framework).

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constitutional errors that are not structural are reviewed for plain

error. See Hagos v. People, 2012 CO 63, ¶ 14.4

¶ 18 To qualify as plain error, an error must be obvious and

substantial. Id. We reverse only when the error so undermined the

fundamental fairness of the trial that it casts serious doubt on the

reliability of the judgment of conviction. Id. An error is obvious

only if, at the time of trial, the action challenged on appeal

contravened a clear statutory command, a well-settled legal

principle, or Colorado case law. See People v. Crabtree, 2024 CO

40M, ¶¶ 42, 53.

¶ 19 Burkard argues that the error here was obvious in part

because the Colorado Supreme Court had observed in Bolles v.

People, 541 P.2d 80, 82 (Colo. 1975), that “a statute is facially

overbroad if it sweeps so comprehensively as to substantially

include within its proscriptions constitutionally protected speech.”

4 To the extent Burkard posits that structural error applies in this

case, we also disagree. See Johnson v. People, 2023 CO 7, ¶ 28
(reviewing for plain error the defendant’s unpreserved vagueness
challenge); People v. Helms, 2016 COA 90, ¶¶ 13-14 (reviewing
unpreserved facial challenges to the constitutionality of a statute for
plain error).

10
But he doesn’t explain — and we don’t see — why this general

statement from Bolles should have alerted the trial court that

section 18-8-112 may be unconstitutional. After all, Bolles

addressed the constitutionality of a different law, concluding that

portions of Colorado’s harassment statute were facially overbroad.

Id. at 81, 84. And Burkard directs us to no Colorado appellate

opinion that has addressed whether the impersonating a peace

officer statute is constitutional, let alone suggested that the statute

is constitutionally infirm in ways he contends it is.

¶ 20 When Colorado statutory law or case law would not have

alerted the trial judge to an unobjected-to error, the error can’t be

deemed obvious. Crabtree, ¶ 42; see also People v. Taylor, 2021

COA 133, ¶ 15 (“Statutes are entitled to a presumption of

constitutionality, rooted in the doctrine of separation of powers,

through which ‘the judiciary respects the roles of the legislature and

the executive in the enactment of laws.’” (quoting Rocky Mountain

Gun Owners v. Polis, 2020 CO 66, ¶ 30)). And because any

constitutional error wasn’t obvious at the time of Burkard’s trial,

the error wasn’t plain. See Crabtree, ¶¶ 41-43 (noting that an error

is plain only if it’s both obvious and substantial).

11
¶ 21 Under these circumstances, then, we conclude there was no

plain error in the trial court not sua sponte declaring the statute

unconstitutionally overbroad and vague.

B. Admissibility of Evidence

¶ 22 Burkard next contends that the trial court reversibly erred by

failing to sua sponte exclude certain portions of the victim’s

testimony. We disagree.

1. Applicable Law and Standard of Review

¶ 23 “The Colorado Rules of Evidence favor the admissibility of

relevant evidence unless otherwise prohibited by constitution,

statute, or rule.” People v. Hood, 2024 COA 27, ¶ 19; see also CRE

402. Evidence is relevant if it has any tendency to make the

existence of a fact of consequence more or less probable. CRE 401.

But relevant evidence may nonetheless be excluded if its probative

value is substantially outweighed by, among other things, the

danger of unfair prejudice or misleading the jury. CRE 403.

¶ 24 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Owens, 2024 CO 10, ¶ 105. “[A] trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, unfair, or based on an incorrect understanding of the

12
law.” Id. However, because Burkard didn’t object to the challenged

testimony at trial, we will reverse only if we conclude that the trial

court’s decision to admit the testimony was plainly erroneous. See

People v. Martinez, 2020 COA 141, ¶ 62.

2. The Trial Court Didn’t Reversibly Err by Admitting the
Challenged Portions of the Victim’s Testimony

¶ 25 Burkard contends that the trial court reversibly erred by

admitting the victim’s testimony that she had “known [Burkard]

through this court process”; that their relationship was “bad” when

she received the relevant texts from him, as “[i]t was right after [she]

had contacted [the] police”; and that during the text message

exchange, she was staying “at a hotel that the Victims’ Advocacy

had helped set up for the evening.” Burkard argues that these

statements constituted “inflammatory, irrelevant, and prejudicial

evidence suggesting that [he] had victimized [the victim]” in a

manner unrelated to the charges in this case. In other words,

Burkard asserts that the statements were inadmissible because

they were not relevant to the elements of his impersonating a peace

officer charge and they improperly referred to the original sexual

assault allegations. We discern no reversible error.

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¶ 26 For starters, contrary to Burkard’s argument, we don’t view

the victim’s testimony about how she had known him through the

court process and the quality of their relationship as irrelevant

evidence that was only related to the underlying sex assault

investigation. While these statements perhaps didn’t pertain

directly to an element of his impersonation charge, they served as

background information about the facts under which the charged

crime occurred. See People v. Dunlap, 124 P.3d 780, 806 (Colo.

App. 2004) (noting that evidence that doesn’t relate to any

proposition that must be proved may nonetheless be admissible as

background information).5 For example, just before the victim

testified that she had known Burkard “through this court process,”

she recounted how they “met a couple years ago through Facebook”

and “had hung out a couple times since then.” Similarly, she

testified about the general quality of her relationship with Burkard

5 On appeal, Burkard argues only that this evidence was irrelevant

and unfairly prejudicial. To the extent he also implies that this
evidence was improper character evidence, we conclude that the
statements were not obviously extrinsic and therefore didn’t clearly
fall within CRE 404(b). See Rojas v. People, 2022 CO 8, ¶ 44
(recognizing an intrinsic-extrinsic distinction with extrinsic acts
falling under CRE 404(b) and intrinsic acts falling outside the rule).

14
because the prosecutor had asked her to share that information “for

the context of those messages.”

¶ 27 Moreover, the victim’s statements hardly revealed more than

what was already obvious. Indeed, Burkard stipulated to the fact

that the alleged charged conduct occurred after Investigator Adams

had already been assigned to investigate a “disagreement” between

Burkard and the victim. The trial court had read that stipulation to

the jury by the time of the victim’s testimony. Given the testimony

and evidence provided to the jury, the victim’s statement that their

relationship was “bad” at the time of the texts wasn’t new

information. Consequently, we can’t say on this record that the

trial court abused its discretion by failing to sua sponte exclude the

victim’s statement generally describing the current state of her

relationship with Burkard. See Owens, ¶ 105.

¶ 28 As for the victim’s testimony about where she was when she

received Burkard’s texts, the victim didn’t specify why the Victims’

Advocacy had arranged for her to stay at a hotel, much less suggest

that its involvement was related to the undisclosed sexual assault

allegations. But even if we were to assume that this statement

improperly suggested that Burkard had victimized her in some

15
unknown way, any error in admitting that statement wasn’t plain

because it wasn’t substantial. See Martinez, ¶ 62.

¶ 29 First, the victim’s reference to the Victims’ Advocacy’s

involvement was very brief and bare bones. It was limited to a

single sentence in the roughly 250-page transcript from the 2-day

trial, the prosecutor didn’t ask any follow-up questions, and we see

no indication that the prosecutor referred to this statement during

closing argument or at any other point during the trial. See People

v. Arzabala, 2012 COA 99, ¶ 80 (concluding that the trial court

didn’t plainly err by admitting certain testimony in part because the

testimony was brief and the prosecutor didn’t specifically refer to it

in closing argument).

¶ 30 Second, overwhelming evidence supported Burkard’s

conviction for impersonating a peace officer as it was undisputed

that he had falsely identified himself as a parole officer in the

communications with the victim and Investigator Adams. True,

Burkard argued that he hadn’t committed an act in the false

capacity of a parole officer. But as his counsel put it in closing

argument, “the facts are pretty straightforward” and many “of them

ha[d] been stipulated to.” See People v. Munoz-Diaz, 2023 COA 105,

16
¶ 29 (concluding that any evidentiary error wasn’t plain because

there was overwhelming independent evidence of the defendant’s

guilt).

¶ 31 For these reasons, we conclude that the trial court didn’t

reversibly err by admitting portions of the victim’s testimony that

Burkard challenges on appeal.

C. Prosecutorial Misconduct

¶ 32 Finally, Burkard contends that the trial court reversibly erred

by allowing the prosecutors to engage in misconduct during closing

and rebuttal closing arguments. We again disagree.

1. Applicable Law and Standard of Review

¶ 33 We use a two-step analysis to review prosecutorial misconduct

claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First,

we evaluate whether the prosecutor’s conduct was improper under

the totality of the circumstances, considering factors such as the

language used, the context in which the statements were made, and

the strength of the evidence supporting the conviction. People v.

Vialpando, 2022 CO 28, ¶ 21. Second, if the conduct was improper,

we determine whether reversal is required under the applicable

standard of review. Wend, 235 P.3d at 1096. Each of these steps is

17
analytically independent of the other, so a prosecutorial misconduct

claim fails unless both steps are satisfied. Id.

¶ 34 Because Burkard didn’t object to the asserted misconduct at

trial, we review his claims for plain error. Vialpando, ¶ 20.

Prosecutorial misconduct constitutes plain error only if it is

flagrantly, glaringly, or tremendously improper. Domingo-Gomez v.

People, 125 P.3d 1043, 1053 (Colo. 2005). And prosecutorial

misconduct in closing argument rarely constitutes plain error.

People v. Burdette, 2024 COA 38, ¶ 61.

2. The Prosecutors Didn’t Commit Misconduct During Closing
and Rebuttal Closing Arguments

¶ 35 Burkard contends that one of the prosecutors engaged in

misconduct during closing argument by (1) repeatedly referring to

the text messages he had sent to the victim as “threats” and

(2) stating that the victim had already been in contact with the

police when she received his texts. He also asserts that during

rebuttal closing, a different prosecutor (3) improperly argued that

Burkard’s texts were intended “to intimidate” the victim; and

(4) drew the jury’s attention to a “high-profile” case that a

prospective juror mentioned during voir dire, “in which a woman

18
named Lacy Miller was murdered after being pulled over by a

person impersonating a police officer.” Although Burkard didn’t

object to any of these statements during trial, on appeal he posits

that “[t]hese comments cumulatively served to improperly suggest

that [he] had victimized [the victim] and that the jury should base

its decision on this inference of other nefarious conduct.” We’re not

persuaded.

¶ 36 To begin, we don’t agree with Burkard that it was misconduct

to characterize his texts to the victim as “threats.” While not all of

his messages can be construed as threats, the record shows that

the prosecutor used that characterization only when discussing two

messages in particular. Specifically, the prosecutor stated that

Burkard “tried a threat” when he told the victim that she would

need to file a police statement by the end of the day. And the

prosecutor used the term “threat” to describe the message in which

Burkard said, “We are going to need a[n] explanation.” Considering

that Burkard was writing to the victim pretending to be a parole

officer, those two messages could be perceived as “threats” that if

the victim didn’t do what he was asking her to do, the person

19
communicating with her could exercise his purported authority as a

parole officer.

¶ 37 Thus, we discern no misconduct in the prosecutor’s use of

that term. Likewise, we don’t discern under these circumstances

any misconduct in the comment during rebuttal closing that

Burkard’s messages were intended “to intimidate [the victim] into

going [to the police station] and talking to the cops.” See People v.

Rodriguez, 2021 COA 38M, ¶ 31 (observing that a prosecutor has

“‘wide latitude in the language and presentation style used’ during

closing argument” and that the prosecutor “may employ rhetorical

devices and engage in oratorical embellishment and metaphorical

nuance”) (citations omitted).

¶ 38 Moreover, we’re not persuaded by Burkard’s argument that

the prosecutor’s comments about how the victim was already in

contact with the police at the time of the text exchange “created an

unfair and prejudicial inference that [he] had done something

criminal or harmful to [the victim].” Those comments accurately

described facts in evidence. As noted above, the victim told

Burkard in the text exchange that she had already filed a police

statement. And her contact with law enforcement was apparent

20
from the parties’ factual stipulation that Investigator Adams was

already investigating the underlying incident when the charged

conduct occurred. See People v. McMinn, 2013 COA 94, ¶ 61

(“Prosecutors may comment on the evidence admitted at trial and

the reasonable inferences that can be drawn therefrom.”).

¶ 39 Finally, Burkard takes issue with the following statements the

prosecutor made in her rebuttal closing:

Now, at the beginning of jury selection, when
you were all here, you all talked about why
this kind of conduct is criminalized and why it
is illegal in our state. You said peace officers
should be someone that you can trust, that if
you get a call from the likes of Investigator
Adams or [Parole] Officer Singleton, that you
know that the person you’re talking to on the
phone is a cop. You want to have that trust.

You said that peace officers are ones in a
position of authority, that you don’t want
someone to use that authority when they don’t
actually have it. And that’s exactly why you’re
here today. You’re here today because
someone -- Mr. Burkard -- pretended to be a
parole officer and took acts under that guise.

¶ 40 He asserts that these statements drew the jury’s attention to a

case that one prospective juror mentioned during jury selection in

support of her belief that impersonating a peace officer should be a

crime:

21
[JUROR D]: Well, obviously, there’s safety
issues if, you know, someone is impersonating
it, so I think that’s something that people have
to be aware of. I mean, I remember a case in
Fort Collins. It was a long time ago, but I
think -- Lacy Miller or some -- I can’t
remember exactly.

But someone had impersonated a police officer
and pulled her over, and I think she was killed.
And, you know, it was probably one of the first
times I had ever heard of something like that
happening, so yeah. I mean, I think it’s crime
to impersonate a police officer though.

Burkard contends that “[b]y reminding the jury why impersonating

a peace officer is illegal ‘in our state,’ the prosecutor drew a line of

reference between what happened to Lacy Miller and what

happened between Mr. Burkard and [the victim].”

¶ 41 We disagree with this interpretation of the prosecutor’s

comments. The record shows that during jury selection, the

prosecutor asked multiple prospective jurors to share their

thoughts about whether impersonating a peace officer should be a

crime. While Juror D brought up the Lacy Miller case, the

prosecutor and the other prospective jurors didn’t talk about it

further. Instead, the prosecutor focused on safety concerns

associated with someone assuming the authority of a peace officer

22
and how such impersonation undermines the public’s trust in law

enforcement. During that colloquy, one prospective juror observed

that “police officers are supposed to be the people you can trust.”

¶ 42 The prosecutor’s comments in rebuttal closing emphasized the

concerns that all prospective jurors had identified, with the

prosecutor reminding the jurors how they had discussed that

“peace officers should be someone that you can trust” and “that you

don’t want someone to use [the] authority [of a peace officer] when

they don’t actually have it.” In light of this record, then, we don’t

perceive the prosecutor’s remarks as referring to the Lacy Miller

case in particular, much less as inviting the jury to equate

Burkard’s actions with the actions implicated in that case.

¶ 43 In sum, we conclude that the statements the prosecutors

made during closing and rebuttal closing arguments weren’t

improper, let alone so flagrantly, glaringly, or tremendously

improper as to constitute plain error. See Domingo-Gomez, 125

P.3d at 1053. Thus, Burkard’s prosecutorial misconduct claim

fails.

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III. Disposition

¶ 44 The judgment is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.

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