Peo v. Smith

23CA0643 Peo v Smith 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0643
Weld County District Court No. 21CR1469
Honorable Allison J. Esser, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Keith Alan Smith,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE BERNARD*
Moultrie, J., concurs
Taubman*, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 A jury convicted defendant, Keith Alan Smith, of possession

with intent to manufacture or distribute methamphetamine and

adjudicated him a habitual traffic offender. He appeals. We affirm.

I. Background

¶2 In July 2021, an investigator working with the Weld County

Drug Task Force saw defendant leave a business and get into a

stolen car. At the investigator’s request, a police officer patrolling

nearby stopped the car.

¶3 When the officer asked defendant for identification, defendant

admitted his driving privileges were suspended. While talking with

defendant, the officer noticed a black bag on the driver’s seat

floorboard near defendant’s right foot. The officer learned

defendant’s driver’s license was revoked, so he arrested him.

¶4 The officer asked a second officer to inventory the contents of

the stolen car before towing it. During the inventory search, the

second officer found two bags containing methamphetamine in the

black bag, along with a pipe and a digital scale. Elsewhere in the

car, he found two smaller bags of methamphetamine, a second pipe,

a calculator, some gel capsules, and two phones.

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¶5 At the police station, the investigator interviewed defendant

and asked him to become a confidential informant. Defendant

declined the invitation.

¶6 At trial, defendant’s theory of defense was the

methamphetamine was not his; rather, the police officers planted it

in the car. Defense counsel supported this theory by arguing,

“[T]he discrepancies between the testimony of law enforcement and

what is shown on their body worn camera footage calls into

question their credibility and motive.”

II. Defense Jury Instruction

¶7 Defendant contends the court erred when it refused his jury

instruction addressing the statutory permissive inference of police

officer misconduct in section 24-31-902(1)(a)(III), C.R.S. 2025, a

provision of the Enhance Law Enforcement Integrity Act. (Although

the Act has been amended since the time of the crime, because the

changes did not substantively impact the portions relevant on

appeal, we cite the current version.)

A. Additional Background

¶8 Both officers testified at trial about their use of their body-

worn cameras during their contact with defendant.

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¶9 The footage from the first officer’s camera showed the lens was

covered by something for a few minutes during his initial contact

with defendant. The first officer could not explain in his trial

testimony what had covered the camera lens.

¶ 10 The second officer turned off his camera for twelve minutes at

one point. He admitted to doing so at trial, adding that he only

turned it back on after he picked up the black bag and looked

inside it.

¶ 11 Both officers testified they confiscated $1,600 in cash from

defendant during the arrest. But their cameras were turned off

when they counted the cash, which violated the police department’s

policy.

¶ 12 After all the evidence had been presented, defense counsel

asked the court to instruct the jury: “If you conclude that law

enforcement intentionally tampered with or disabled their body-

worn cameras, then there is a permissive inference that the missing

footage would have reflected misconduct by the peace officer.” The

court denied this request because it thought the instruction was

“argumentative.” The court added: “Certainly, the [d]efense can

argue . . . whether or not law enforcement intentionally tampered

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with or disabled their body-worn cameras and what inference or

conclusion the jury should reach from that.”

B. The Enhance Law Enforcement Integrity Act

¶ 13 The Enhance Law Enforcement Integrity Act governs all local

law enforcement agencies’ use of body-worn cameras. See § 24-31-

902; People v. Soron, 2026 CO 3, ¶ 41. The Act states officers “shall

wear and activate a body-worn camera . . . during any interaction

with the public initiated by the peace officer, whether consensual or

nonconsensual, for the purpose of enforcing the law or investigating

possible violations of the law.” § 24-31-902(1)(a)(II)(A). The Act

describes when an officer “may” turn off a body-worn camera: “to

avoid recording personal information that is not case related; when

working on an unrelated assignment; when there is a long break in

the incident; and in administrative, tactical, and management

discussions when civilians are not present.” § 24-31-902(1)(a)(II)(B).

It also explains the consequences when a police officer does not

comply with the Act. See § 24-31-902(1)(a)(III)-(IV). For example, if

a police officer does not activate a camera or tampers with it, then

“there is a permissive inference in any investigation or legal

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proceeding . . . that the missing footage would have reflected

misconduct by the [police] officer.” § 24-31-902(1)(a)(III).

C. Standard of Review

¶ 14 In his reply brief, defendant submits the court’s decision to

deny his request for the instruction “amounts to constitutional

error.” This is not the standard of review. “We review preserved

instructional errors for nonconstitutional harmless error.” People v.

Koper, 2018 COA 137, ¶ 9. Under this standard, if a court

erroneously declines to give a defense instruction, we will reverse a

conviction only if “there is a reasonable probability that [the error]

contributed to the defendant’s conviction.” Mata-Medina v. People,

71 P.3d 973, 980 (Colo. 2003).

D. Analysis

¶ 15 We will assume, without deciding, the court erred when it

denied defense counsel’s proposed instruction. But we nonetheless

conclude this putative error was harmless because there is not a

reasonable probability the error contributed to defendant’s

conviction. See id.

¶ 16 A permissive inference “allows, but does not require, the trier

of fact to infer” something. Jolly v. People, 742 P.2d 891, 896 (Colo.

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1987). Often, the something is an “elemental fact of a crime from

proof by the prosecution of the predicate fact on which the inference

is based.” Id.

¶ 17 In the context of this case, as we understand defendant’s

contention, the permissive inference does not arise from the

prosecution’s proof of a predicate fact concerning an element of the

crime charged. Rather, under section 24-31-902(1)(a)(III), the

permissive inference contained in defendant’s proposed instruction

would have worked this way: Had the first officer not covered the

lens of his camera; had the second officer kept his camera on; and

had the two officers kept their cameras on when they counted the

$1,600, the resulting footage would have shown they planted

methamphetamine in the car defendant was driving. So, defendant

submits, the jury should have been instructed that it was allowed,

but not required, see Jolly, 742 P.2d at 896, to infer the officers

planted the methamphetamine.

¶ 18 But, based on the evidence submitted at trial, two other

instructions the court read to the jury, and defense counsel’s

closing argument, the jury clearly knew it was allowed, but not

required, to infer the officers planted the methamphetamine.

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¶ 19 The jury saw the recordings from the two officers’ cameras and

observed the first officer’s camera lens becoming covered. Through

defense counsel’s questions, it learned that the second officer’s

camera was not activated during part of the arrest and that neither

officer’s camera was activated, in violation of departmental policy,

when they were counting the $1,600. These issues were explored

on cross-examination, and they were front and center at trial.

¶ 20 The court instructed the jurors they were “the sole judges of

the credibility of each witness and the weight to be given to the

witness’s testimony.”

¶ 21 The jury was also given defendant’s theory of defense

instruction. It read:

The defense asserts that [defendant] did not
possess the drugs charged in this case. The
defense asserts that law enforcement planted
the evidence in this case. The defense asserts
that the discrepancies between the testimony
of law enforcement and what is shown on their
body worn camera footage calls into question
their credibility and motive.

¶ 22 This instruction’s focus was on alleged police misconduct, and

defense counsel began his closing argument by giving the jury a

reason for the misconduct: the “[w]ar on drugs.” He said this war

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could have a “dark side” where “people think that . . . the ends

justify the means,” and he pointed to inappropriate means such as

planting evidence or lying. Defendant, he continued, became a

“casualty” of the “war . . . [the] officers [in this case] were fighting.”

¶ 23 When the officers found the money on defendant, defense

counsel said they decided he was a drug dealer, even though he was

not one. Because he must be a drug dealer, counsel went on, the

officers wanted information from him; because they wanted

information from him, they needed leverage on him; and, once they

had leverage, they could coerce him to become a confidential

informant. The way to gain the necessary leverage to achieve their

goal, defense counsel submitted, was by covering lenses, turning off

cameras, and planting methamphetamine in the car defendant was

driving. The officers’ failure to record the counting of the $1,600

served to corroborate this theory.

¶ 24 But, counsel argued, since defendant was not a drug dealer,

the officers’ misconduct came to naught. Defendant had no

information about drug dealing to give the officers, so he declined to

become a confidential informant.

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¶ 25 Defense counsel discussed this theory in detail during closing

argument; indeed, it was the sole focus of his argument. Over

approximately twenty-three pages of transcript, counsel repeatedly

accused the officers of planting the methamphetamine, covering the

lens of the first officer’s camera, turning off the second officer’s

camera, and violating departmental policy by failing to record their

count of the $1,600.

III. Prosecutorial Misconduct

¶ 26 Defendant contends the prosecutor committed misconduct,

rising to the level of reversible error, during both his closing

arguments because he denigrated both the theory of defense and

defense counsel. We disagree.

A. Additional Background

¶ 27 Defendant challenges the following statements the prosecutor

made during his closing arguments.

¶ 28 During his initial closing argument, the prosecutor said:

• “So, [the officers] could frame a guy they’d never met

before and put their entire [careers] in [peril.] Logic,

there’s no logic there. It’s insanity.”

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• “But as you’re listening to [d]efense [c]ounsel, ask

yourself as he gets you in the weeds, cause he’s gonna do

that. Is anything he says [logical]?”

¶ 29 During his rebuttal closing argument, the prosecutor said:

• “Just checking to make sure there’s not credits rolling

behind me. Because that would have made great fiction

what you just heard.”

• “The reality is — is what [d]efense counsel just presented

to you is bad Hollywood drama.”

• “Fiction with a plot line that doesn’t work, that doesn’t

accord to . . . reason, doesn’t accord to common sense,

doesn’t accord to logic.”

• “He’s talking about this outrageous claim of planting

evidence.”

• “Three officers with nothing to gain at all and you’re

gonna make an outrageous claim like that about three

public servants?”

¶ 30 Defendant did not object to any of these statements.

¶ 31 He objected, however, when the prosecutor said a short time

later, “Let’s not [mince] words. If you’re gonna make outrageous

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claims, let’s be perfectly clear. This is one of the most outrageous

claims I have heard in [the] many years I’ve been working as a

district attorney.” The court sustained the objection and instructed

the jury to disregard the prosecutor’s statement.

¶ 32 The prosecutor then said:

It’s an outrageous claim. I guess I don’t need
to explain how outrageous it is. You have
common sense. You can tell. If you’re gonna
make an outrageous claim about three public
servants there better be something on the
record that is not vague. That is not
speculative, which is the very nature of
everything that just came out of [d]efense
counsel’s mouth.

There better be something that is not purely
imaginary, that is not really the produc[t] of [a]
Netflix series of crime shows on Prime Video or
whatever. There better be something rooted in
reality to support that kind of outrageous
claim. And there isn’t.

The prosecutor also described the theory of defense as “[t]hat

outrageous theory that three public servants [with] literally nothing

to gain, no motive, unless you’re a crazy person[,] . . . have it out for

a guy they’ve never met and are gonna frame him.”

¶ 33 Defendant did not object to these latter statements.

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¶ 34 On appeal, defendant contends the prosecutor “repeatedly

denigrated defense counsel and his arguments.” The prosecutor,

defendant continues, “impl[ied] [the] defense [was] being presented

in bad faith, which [was] exactly what the prosecution did when it

referred to defense counsel’s arguments as, among other things,

‘insanity,’ ‘fiction,’ ‘bad Hollywood drama,’ and ‘outrageous.’”

B. Legal Principles

¶ 35 In reviewing a claim a prosecutor committed misconduct

during closing argument, we engage in a two-step analysis. Wend

v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we must decide

whether the statements were improper. Id. Second, if the

prosecutor made an improper statement, we must then decide

whether we will reverse the defendant’s conviction, applying the

appropriate standard of review. See id. Since defendant did not

object at trial to the statements he challenges on appeal, the

appropriate standard of reversal is whether any improper

statements constituted plain error. See Hagos v. People, 2012 CO

63, ¶ 14.

¶ 36 A prosecutor, “while free to strike hard blows, is not at liberty

to strike foul ones.” People v. Yachik, 2020 COA 100, ¶ 58 (quoting

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Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005)). Foul

blows include statements during closing argument calculated to

inflame the jury’s passions, to denigrate defense counsel, to

misstate the evidence, or to express personal opinions about the

credibility of witnesses. People v. Vasquez, 2022 COA 100, ¶ 62.

“References to a defendant’s or defense counsel’s diversionary

tactics . . . are improper when used as a means to denigrate the

defendant or defense counsel . . . .” People v. Serra, 2015 COA 130,

¶ 89.

¶ 37 But “prosecutors have wide latitude in the language and style

they choose to employ.” People v. Duncan, 2023 COA 122, ¶ 31

(quoting People v. McMinn, 2013 COA 94, ¶ 60). “[B]ecause

arguments delivered in the heat of trial are not always perfectly

scripted, reviewing courts accord prosecutors the benefit of the

doubt when their remarks are ambiguous or simply inartful.”

People v. Samson, 2012 COA 167, ¶ 30. To decide whether a

prosecutor’s comments during closing argument were misconduct,

we consider the language the prosecutor used, the context of the

statements, the strength of the evidence, and whether the

prosecutor repeated any misconduct. People v. Lovato, 2014 COA

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113, ¶ 64. We also consider the absence of any objection from

defense counsel because it may show counsel’s “belief that the live

argument, despite its appearance in [the] cold record, was not

overly damaging.” Id. at ¶ 65 (quoting People v. Wallace, 97 P.3d

262, 269 (Colo. App. 2004)).

¶ 38 Considering these various factors, “[p]rosecutorial misconduct

in closing argument rarely constitutes plain error.” Liggett v.

People, 135 P.3d 725, 735 (Colo. 2006). To rise to the level of plain

error, misconduct in closing argument must be “flagrantly,

glaringly, or tremendously improper, and it must so undermine the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” Id. (citation omitted).

C. Analysis

¶ 39 Read in context, the prosecutor’s comments did not attack or

denigrate defense counsel; they attacked the nature and quality of

the defense theory. In other words, just as defense counsel was

allowed to argue the viability of the defense theory, the prosecutor

was allowed to argue it was implausible. While the prosecutor was

not entitled to offer his opinion about the officers’ credibility, he was

allowed to explain why the evidence supported the officers’

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testimony and why the evidence did not support the defense theory.

See People v. Allee, 77 P.3d 831, 836 (Colo. App. 2003). Describing

the defense theory as “fiction” in alternative ways, such as equating

it with movie plots, may have been an excessive rhetorical flourish,

but such flourishes are allowed. See People v. Rodriguez, 2021 COA

38M, ¶ 31 (noting that many rhetorical flourishes or

embellishments fall within the wide latitude permitted in a

prosecutor’s presentation style); Allee, 77 P.3d at 837. It is not

misconduct to comment on defense counsel’s tactics if such

commentary is focused on the evidence and not on denigrating

counsel. See Allee, 77 P.3d at 836. An argument “suggest[ing] to

the jury that defendant’s theory as to why the jury should find a

reasonable doubt was so unlikely as to strain credibility” is not

improper as long as it “permissibly focuse[s] the jury’s attention on

the evidence and the inferences that [can] be reasonably drawn

from the evidence.” People v. Collins, 250 P.3d 668, 678 (Colo. App.

2010). And the prosecutor’s comments identifying the officers as

public servants were made to refute the defense’s theory. See

People v. Williams, 996 P.2d 237, 245 (Colo. App. 1999)(no

prosecutorial misconduct when the police officer’s credibility was

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the central issue at trial and both the prosecutor and defense

counsel provided reasons to believe or to reject his testimony).

¶ 40 But what if we assume, for the purposes of argument, some of

the prosecutor’s comments fell on the wrong side of the line, such

as the repeated use of the word “outrageous” or his references to

the defense theory being “bad Hollywood drama” or “fiction with a

plot line that doesn’t work.” See People v. Cuellar, 2023 COA 20,

¶ 74 (“[T]he prosecutor improperly denigrated defense counsel by

telling the jury that defense counsel’s statements about the victim

were intolerable.”). Defense counsel did not object to the repeated

uses of the word “outrageous” or to the references to “bad

Hollywood drama” or “fiction with a plot line that doesn’t work,”

which suggests “the live argument, despite its appearance in [the]

cold record, was not overly damaging.” Lovato, ¶ 65 (citation

omitted).

¶ 41 The prosecution’s case was strong: Defendant was found with

multiple bags containing methamphetamine and various items of

drug paraphernalia. See People v. Munoz-Casteneda, 2012 COA

109, ¶ 33 (prosecutorial misconduct was not plain error when

evidence of defendant’s guilt was overwhelming). And, when

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defense counsel objected to the prosecutor’s statement that the

defense theory was “one of the most outrageous claims I have heard

in [the] many years I’ve been working as a district attorney,” the

court sustained the objection and instructed the jury to disregard

the prosecutor’s statement. See Bondsteel v. People, 2019 CO 26,

¶ 62 (absent evidence to the contrary, we presume the jury followed

the court’s instructions).

¶ 42 So, even assuming some of the prosecutor’s comments were

improper, we nonetheless conclude they were not so flagrantly,

glaringly, or tremendously improper as to undermine the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. See Liggett, 135 P.3d at

735.

¶ 43 We recognize defendant braids his arguments — the court

should have given the jury the instruction he requested, and the

prosecutor committed misconduct during closing argument —

together at one point. He submits his instruction

would have properly and appropriately
countered the prosecution’s denigration of the
defense theory [during closing argument] by
instructing the jury that, under the law, it was
actually permissible to infer police misconduct

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from some of the evidence presented in the
case — such that the defense theory was not
“outrageous.”

¶ 44 But we concluded above defendant was able to present his

defense theory thoroughly to the jury through evidence and

argument. When combined with the court’s credibility instruction,

the jury understood it could acquit defendant if it thought the

officers had planted the methamphetamine. In these

circumstances, defendant’s proposed instruction would not have

been the ounce to make the pound of convincing the jury the

officers engaged in misconduct, and the instruction would not have

effectively blunted the prosecutor’s attack on the defense theory’s

feasibility. The crux of the issue was, instead, what the jury

thought of the evidence presented at trial.

¶ 45 The judgment is affirmed.

JUDGE MOULTRIE concurs.

JUDGE TAUBMAN specially concurs.

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JUDGE TAUBMAN, specially concurring.

¶ 46 I agree with most of the majority opinion. My only point of

disagreement is with the majority’s conclusion that the prosecutor’s

comments did not attack or denigrate defense counsel. However, I

agree with the majority that the prosecutor’s comments did not

constitute plain error, and therefore, I would also affirm the

conviction of defendant, Keith Alan Smith.

¶ 47 As the majority correctly notes, a prosecutor may not

denigrate defense counsel during closing argument. People v.

Vasquez, 2022 COA 100, ¶ 62, 521 P.3d 1042, 1055. I also

recognize that prosecutors have wide latitude in the language they

use during closing arguments. People v. Duncan, 2023 COA 122,

¶ 31, 545 P.3d 963, 972.

¶ 48 I part company with the majority, however, in its conclusion

that the prosecutor attacked only the nature and quality of the

defense theory, and not defense counsel. While it is the

prosecutor’s obligation to argue that defense counsel’s theory was

implausible, he could have done so using more temperate language.

Even though the prosecutor may have tied his closing comments to

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his belief that the defense theory was weak, he could have done so

without impugning defense counsel’s integrity.

¶ 49 When the prosecutor repeatedly stated that defense counsel’s

argument was “outrageous” and added that it was “bad Hollywood

drama” and “fiction with a plot line that doesn’t work,” he was

impermissibly denigrating defense counsel.

¶ 50 Even though many people these days engage in verbal

excesses, we shouldn’t countenance such language during a

prosecutor’s (or defense counsel’s) closing argument.

¶ 51 Nevertheless, given that prosecutorial misconduct in closing

argument rarely constitutes plain error, Liggett v. People, 135 P.3d

725, 735 (Colo. 2006), I conclude that the prosecutor’s closing

comments noted above do not rise to that level. Accordingly, I agree

with the majority’s conclusion that the prosecutor’s closing remarks

did not constitute plain error.

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