Peo v. Hooper J

23CA1306 Peo v Hooper 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1306
El Paso County District Court No. 22CR3227
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Andrew Hooper,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE J. JONES
Grove and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Claire Pakis, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Joshua Andrew Hooper, appeals the district court’s

judgment of conviction entered on jury verdicts finding him guilty of

second degree burglary, first degree trespass, false reporting of

identifying information to law enforcement, theft, criminal

possession of an identification document, and criminal possession

of a financial device. We conclude that Hooper’s first degree

trespass conviction merges into his second degree burglary

conviction. We therefore vacate the trespass conviction and

sentence and remand for correction of the mittimus. In all other

respects, we affirm.

I. Background

¶2 One morning, a dog sitter went to check on his friends’ dogs in

their house and found Hooper in the kitchen. The dog sitter

believed that no one else would be in the house while the owners

were away. He asked Hooper whether he knew the homeowners,

and Hooper said that he did. The dog sitter then let the dogs

outside. After talking to the homeowners, who said no one had

permission to be at the house, he called the police.

¶3 Two officers responded to the call. They found Hooper in the

backyard with several bags. He refused an officer’s repeated

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commands to stop and put his hands up, saying “Katie” had given

him permission to be at the house. Other officers arrived and

detained Hooper in the backyard. The bags Hooper was holding

contained items from the house; inside the house, drawers were

open and numerous items were strewn about. No one named Katie

lived at the house and the homeowners confirmed that no one,

other than the dog sitter, had permission to be there while they

were gone or to possess the various items recovered from Hooper’s

bags.

¶4 The People charged Hooper with the offenses noted above and

criminal mischief.

¶5 A jury convicted Hooper of all charges except for criminal

mischief. The district court sentenced him to two years of

supervised probation.

II. Discussion

¶6 Hooper contends that (1) prosecutorial misconduct during

opening statement and rebuttal closing argument warrants reversal

of his convictions and (2) the district court erred by failing to merge

his first degree trespass (class 6 felony) conviction with his second

degree burglary (class 3 felony) conviction. We reject Hooper’s first

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contention, but we agree with him that his trespass conviction must

merge.

A. Prosecutorial Misconduct

¶7 Hooper contends that the prosecutor committed reversible

misconduct in both his opening statement and rebuttal closing

argument. Specifically, Hooper points to the following five

statements — the first made in opening and the other four in

rebuttal closing — made by the prosecutor that he asserts were

misconduct:

1. “I want to make it clear, there’s no evidence of any person

named Katie ever existing. Katie has never been seen by

anyone. The defendant gave no additional identifying or

contact information for Katie. And there is no evidence of

there being anyone named Katie in the house at any

point that night.”

2. “None of that makes any sense at all.” (The prosecutor

said this when discussing Hooper’s defense theory that

“Katie” had given him permission to be in the house.)

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3. “[T]his affirmative defense relies one hundred and ten

percent on the defendant’s credibility. And he is not . . .

a credible witness.”

4. Hooper’s “affirmative defense must fail.”

5. “His motive is not to be convicted. It’s a pretty strong

motive here. It’s something that would motivate someone

to say and do anything to prevent that from happening.”

We conclude that none of these statements were improper.

1. Applicable Law

¶8 A prosecutor has wide latitude when making arguments based

on facts presented in evidence and reasonable inferences that may

be drawn from those facts. People v. Ray, 2025 CO 42M, ¶ 129;

People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). But “a

prosecutor, while free to strike hard blows, is not at liberty to strike

foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo.

2005) (quoting Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)).

¶9 We use a two-step analysis to review claims of prosecutorial

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

First, we look at whether the statement “was improper based on the

totality of the circumstances.” Id. Second, if a statement was

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improper, we determine whether it warrants reversal under the

proper standard of review. Id.

¶ 10 When determining whether a statement was improper, we

must evaluate the statement “in the context of the argument as a

whole and in light of the evidence before the jury.” Ray, ¶ 128

(quoting Strock, 252 P.3d at 1153). We may also consider the

nature of the charges and defenses. Harris v. People, 888 P.2d 259,

266 (Colo. 1995).

¶ 11 A prosecutor is allowed to “comment on the lack of evidence

confirming [a] defendant’s theory of the case.” People v. Duncan,

2023 COA 122, ¶ 32 (quoting People v. Medina, 545 P.2d 702, 703

(Colo. 1976)). And during opening statement, a prosecutor may

discuss evidence expected to be presented at trial and “draw

inferences from” that evidence. People v. Manyik, 2016 COA 42, ¶

26 (quoting People v. Estes, 2012 COA 41, ¶ 19).

¶ 12 But a prosecutor can’t express his personal opinion or make

statements based on facts not in evidence, People v. Walters, 148

P.3d 331, 334 (Colo. App. 2006); nor can he misstate the law or

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attempt to shift the burden of proof onto the defendant, Duncan,

¶¶ 31-32.1

2. Analysis

a. Lack of Evidence Regarding “Katie”

¶ 13 Hooper first contends that, by pointing out in opening that

“there is no evidence of any person named Katie ever existing” and

saying, “The defendant gave no additional identifying . . .

information for Katie,” the prosecutor improperly shifted the burden

of proof. We disagree.

¶ 14 Immediately after the prosecutor’s comments about Katie, he

went on to say, “The house is full of clear indications that the

resident was someone named Amber.” And earlier the prosecutor

said that the jury would “hear from Amber that she has no

roommates” and “knows no one named Katie.” The prosecutor’s

statements were grounded in the lack of evidence that would

1 The parties dispute preservation as to some of Hooper’s

contentions on appeal regarding the statements at issue. Because
we conclude that none of the statements were improper, we don’t
need to resolve those disputes.

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support Hooper’s defense, and were therefore proper.2 Cf. Estes, ¶¶

22-25 (the prosecutor’s statement in opening that the defendant

was “making up” a story to justify his presence in a yard wasn’t

improper because it was, in context, a comment on what the

evidence would and would not show).

b. Hooper’s Version of Events Didn’t “Make Sense”

¶ 15 Hooper also contends that the prosecutor’s comment during

rebuttal closing argument that his theory of defense didn’t “make[]

any sense at all” improperly denigrated the defense and was an

expression of personal opinion. Not so.

¶ 16 The prosecutor’s comment was preceded by a recitation of

what Hooper had claimed concerning his permission to be at the

house and the evidence that cut against that theory. So, viewed in

context, the challenged statement was to the effect that the

evidence presented showed that Hooper’s defense didn’t “make[] any

sense.” Because the statement was tied to the evidence presented,

it neither denigrated the defense nor amounted to personal opinion.

2 Defense counsel’s opening statement confirmed that the theory of

defense was that someone named Katie had given Hooper
permission to be in the home.

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See People v. Welsh, 176 P.3d 781, 788 (Colo. App. 2007) (the

prosecutor’s statement in closing that the defendant was “trying to

blow smoke at” the jury was “arguably within the prosecutor’s

leeway to point to evidence and inferences that cast doubt on the

defense theory or show that evidence on which [the] defendant was

relying lacked substance”); People v. Herold, 2024 COA 53, ¶¶ 86-

89 (the prosecutor didn’t give a personal opinion when commenting

on evidence that cast doubt on a witness’s version of events).

c. Hooper’s Credibility

¶ 17 Third, Hooper contends that the prosecutor’s remark that

Hooper’s defense “relies on [the] defendant’s credibility. And he is

not . . . a credible witness” was improper burden shifting and a

misstatement of the law because it implied that he had the burden

of proving his affirmative defense of mistake of fact. Again, we

disagree.

¶ 18 A prosecutor may argue that jurors should not believe a

defendant, as long as the argument is grounded in evidence

presented at trial. See Domingo-Gomez, 125 P.3d at 1050.

¶ 19 When viewed in the context of the prosecutor’s closing

argument, it’s clear that the prosecutor was only trying to dissuade

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the jury from believing Hooper’s theory of defense based on the

evidence presented. He made this remark only after recounting

many reasons why Hooper’s “Katie” defense was untenable given

the evidence presented at trial. The prosecutor didn’t say or imply

that Hooper had to prove anything; to the contrary, he only pointed

out the lack of evidence supporting that defense and the surfeit of

evidence refuting it.

d. Hooper’s Defense “Must Fail”

¶ 20 Fourth, Hooper contends that the prosecutor improperly

shifted the burden of proof by telling the jury that his defense “must

fail.” The prosecutor said this after remarking on the credibility of

Hooper’s story, which was preceded by an examination of the lack

of evidence supporting that story and the evidence disproving it.

For the same reason that the prior statement wasn’t improper, this

one wasn’t either.

e. Hooper’s Motive

¶ 21 Fifth, Hooper contends that the prosecutor interjected his

personal opinion and disparaged the defense by saying that Hooper

had a “motive . . . not to be convicted” and that he would “say and

do anything to prevent” a conviction. We disagree.

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¶ 22 There is authority supporting the proposition that a

prosecutor can’t ask that a jury find a defendant who testified at

trial incredible simply because he is the defendant. E.g., State v.

Basham, 319 P.3d 1105, 1125 (Haw. 2014). Allowing such

argument would “discourage a defendant from exercising his [or

her] constitutional right to testify on his [or her] own behalf.” Id. at

1126 (alteration in original) (quoting State v. Walsh, 260 P.3d 350,

363-64 (Haw. 2011)). Because of this concern, in jurisdictions that

follow this rule, prosecutors may not argue during closing

arguments that “defendants, because they are defendants, . . . have

the ‘greatest motive to lie.’” Id. (quoting State v. Apilando, 900 P.2d

135, 149 (Haw. 1995)); see also United States v. Francis, 170 F.3d

546, 551-52 (6th Cir. 1999) (attacks on a testifying defendant’s

credibility at trial must be made by reference to the evidence

presented); State v. Hirata, 520 P.3d 225, 229 (Haw. 2022) (the

prosecutor’s remark during closing that the defendant, based only

on his party status, had a motive to lie during his testimony was

improper).

¶ 23 But this line of authority is distinguishable because Hooper

didn’t testify at trial. Rather, the only evidence of what Hooper

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claimed to believe about permission to be in the house was

introduced through the testimony of the dog sitter and officers at

the scene, and the officers’ body-worn camera recordings. The

prosecutor’s statements were directed at challenging the veracity of

Hooper’s statements to others, before charges were even brought.

So the concern about chilling a defendant’s exercise of his

constitutional right to testify isn’t implicated. Therefore, these

statements weren’t improper.

¶ 24 The cases on which Hooper relies to support a contrary

conclusion — People v. Jones, 832 P.2d 1036 (Colo. App. 1991), and

People v. Scheidt, 526 P.2d 300 (Colo. 1974) — are distinguishable.

In Jones, the prosecutor directly attacked defense counsel, using

sarcastic language to suggest that the defense was nothing more

than a last-minute change of horses asserted without a good faith

basis. Jones, 832 P.2d at 1038-39. In Scheidt, the supreme court

chastised the prosecutor for eliciting testimony from the defendant

at trial about where he had been confined, which was “not to be

placed before [the] jury.” Scheidt, 526 P.2d at 301-02. And the

prosecutor improperly argued that the jury should reject the

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defense theory as a “miscarriage of justice.” Id. at 302. Nothing

analogous to the events in Jones and Scheidt occurred in this case.3

B. Merger

¶ 25 Lastly, Hooper contends that we must merge his first degree

trespass felony conviction with his second degree burglary felony

conviction. The People concede the point. “[F]irst degree criminal

trespass is always a lesser-included offense of second degree

burglary . . . .” Whiteaker v. People, 2024 CO 25, ¶ 21. Therefore,

we agree with the parties that the convictions must merge. Id. at ¶¶

2, 24.

III. Disposition

¶ 26 We vacate Hooper’s first degree trespass conviction and merge

it into his second degree burglary conviction. On remand, the

district court must amend the mittimus to reflect the merger,

including as to sentencing. In all other respects, the judgment is

affirmed.

3 Hooper contends that the prosecutor’s comments, when

considered together, amount to cumulative error warranting
reversal. See Howard-Walker v. People, 2019 CO 69. But because
we have concluded that there was no prosecutorial misconduct, the
cumulative error doctrine isn’t implicated. People v. Jones, 2025
COA 43, ¶ 56; People v. Grant, 2021 COA 53, ¶ 76.

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JUDGE GROVE and JUDGE SCHUTZ concur.

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