Peo v. Johnson

23CA1346 Peo v Johnson 06-18-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1346
Jefferson County District Court No. 21CR3250
Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sean Phillip Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE BROWN
Harris and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 18, 2026

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Jenna S. Baker, Assistant Attorney General Fellow, Denver, Colorado,
for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Sean Phillip Johnson, appeals the judgment of

conviction entered on a jury verdict finding him guilty of internet

luring of a child and attempt to commit sexual assault on a child.

We affirm.

I. Background

¶2 In 2021, Investigator Paul Spokas, an investigator for the

Child Sex Offender Internet Investigations Unit of the Jefferson

County Sheriff’s Office, posed as a thirteen-year-old girl on the

Whisper application (the persona).1 On Whisper, the persona

posted, “What’s ur whisper secret[?]” and Johnson responded, “My

secret? I like younger . . . [.] I also would meet someone to fuck,

but haven’t yet.” The persona and Johnson exchanged several

messages on Whisper. In those messages, the persona told

Johnson multiple times that she was thirteen years old.

¶3 The conversation moved from Whisper to text messages. In

one message, Johnson indicated that he “love[d] ageplay [sic],”

which he explained as “[p]retending you’re [twelve] or something.”

1 The Whisper application is a social media application that allows

anonymous users to post in a general feed. Other users can
interact with that post on the general feed or contact a user directly.

1
After the persona insisted she was actually thirteen and told

Johnson she was not going to text him anymore if he did not believe

her, Johnson responded that he was “down it’s cool” and said, “I

like to be careful on devices others can read, but I’ll whisper in your

ear that I love it.” Johnson later texted, “I really like you’re

[thirteen],” and “I would want to kiss you right away.” He also told

the persona, “I’m just being careful honestly in case someone reads

this ever,” and he sent sexually explicit texts about what he wanted

to do to the persona.

¶4 At one point, Johnson and the persona arranged a video chat.

Investigator Spokas used a prerecorded video of an adult volunteer

posing as the persona, appearing to have technical difficulties, and

then hanging up.

¶5 The persona and Johnson arranged to meet in person for

lunch at a fast food restaurant. The persona sent a screenshot of a

map with a middle school marked and texted Johnson that she

would sneak out during lunch. On the day of the arranged

meeting, Investigator Spokas posed as a restaurant employee and

identified Johnson when he ordered food through the drive-through.

2
Investigator Spokas and two other police officers arrested Johnson

at the restaurant.

¶6 Johnson was charged with internet luring of a child and

attempt to commit sexual assault on a child. A jury convicted him

as charged. The district court sentenced Johnson to ten years to

life of sex offender intensive supervised probation.

II. Challenge for Cause

¶7 Johnson contends that the district court violated his

constitutional right to a fair and impartial jury by denying his

challenge for cause to Juror B.P. We perceive no error.

A. Applicable Law and Standard of Review

¶8 Criminal defendants have a constitutional right to trial by an

impartial jury. U.S. Const. amends. VI, XIV; Colo. Const. art. II,

§ 16. “A defendant’s right to an impartial jury is violated if the trial

court fails to remove a juror biased against the defendant.”

Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). To that end, a

trial court “shall sustain a challenge for cause” based on “[t]he

existence of a state of mind in the juror evincing enmity or bias

3
toward the defendant or the [S]tate.” § 16-10-103(1)(j), C.R.S. 2025;

see Crim. P. 24(b)(1)(X).2

¶9 Even so, “[a] prospective juror’s expression of concern or

indication that [they] possess[] a preconceived belief as to some

aspect of the case does not . . . mandate exclusion of that juror for

cause.” Marko v. People, 2018 CO 97, ¶ 21; see People v. Marciano,

2014 COA 92M-2, ¶ 8 (“While jurors often express concern or

indicate preconceived beliefs during voir dire, such concerns and

beliefs do not automatically disqualify them from service.”). If, after

further examination and rehabilitative efforts, the trial court

believes that a juror will follow the law and be impartial, the court is

not required to remove the juror for cause. People v. Clemens, 2017

CO 89, ¶¶ 15-16.

¶ 10 We review for an abuse of discretion a trial court’s ruling on a

challenge for cause, id. at ¶ 13, considering the entire voir dire of

the prospective juror, People v. Oliver, 2020 COA 97, ¶ 7. A court

2 We note that section 16-10-103(1)(j), C.R.S. 2025, and Crim. P.

24(b)(1)(X) are not identical, but both the Colorado Supreme Court
and divisions of this court have treated them as “functional
equivalents.” People v. Oliver, 2020 COA 97, ¶ 8 n.1. Neither party
argues any substantive difference between the statute and rule, so
we treat them as equivalent too.

4
abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. Id.

Employing this standard “gives deference to the trial court’s

assessment of the credibility of prospective jurors’ responses,

recognizes the trial court’s unique role and perspective in evaluating

the demeanor and body language of prospective jurors, and serves

to discourage reviewing courts from second-guessing the trial court

based on a cold record.” Id. (quoting Clemens, ¶ 13).

B. Additional Background

¶ 11 During voir dire, the district court asked each juror to answer

a series of questions displayed on a posterboard. In response, B.P.

explained, among other things, that he worked “for the director of

the police academy at Red Rocks Community College,” that he

worked “with police officers every day,” and that he “believe[d] [he]

could be fair with both sides.” When the prosecutor asked B.P.

what his job entailed, B.P. said that he is not a police officer and

that his work at the police academy consists of “preparing different

course materials and other . . . administrative or secretarial tasks.”

¶ 12 Continuing with voir dire of B.P., the prosecutor explained

that jurors must assess the credibility of witnesses. She said,

5
I want you to kind of imagine there’s a line in
front of me, and somewhere in the middle,
neutral, a police officer or a witness walks in,
and I put them in the middle. I don’t know
this person. I haven’t heard from them, they
could be a good officer or a bad officer, or a
good witness or a bad witness. If an officer
walks in and they have a badge and a uniform,
maybe they have a firearm, on one end[,] I
believe absolutely everything that person says,
they’re a police officer, they’re in uniform, so I
trust them. On the other end, I believe
nothing that person says . . . .

The prosecutor asked B.P., “Given your experience, [are] you able to

assess from that middle ground? Can you assess each officer

fairly?” B.P. responded, “I think so. I think . . . any evidence or

testimony that they would provide would just be dependent on their

individual experience, rather than just wearing a uniform.”

¶ 13 Later, defense counsel asked the panel if “anyone here . . .

feel[s] that police officers . . . or law enforcement are more credible

than other people?” B.P. apparently raised his hand, and the

following exchange occurred:

[B.P.]: On the topic of credibility for police
officers, I think they’re more prepared to be
credible.

[Defense Counsel]: Okay.

6
[B.P.]: They have body-worn cameras that they
wear, they have set areas through the city they
would be in throughout the day if they’re on
patrol. Any calls are logged. So they have a
lot of their day on paper, per se.

[Defense Counsel]: Sure.

[B.P.]: So that they can be prepared to be
credible if they need to be.

[Defense Counsel]: Right. And in the course of
your work at the police academy, are
officers . . . trained or informed about how to
testify in court?

[B.P.]: There are mock trials that happen in the
academy, yes.

[Defense Counsel]: Okay. And what kind of
training do they get in association with these
mock trials?

[B.P.]: How to . . . properly convey . . . what
happened. Or how to communicate with the
[j]udge or different moving parts in the
courtroom.

[Defense Counsel]: Maybe even speak to the
jury?

[B.P.]: Sure.

¶ 14 Defense counsel moved to strike B.P. for cause because he

worked for the police academy and believed “law enforcement is

more prepared to be credible when testifying,” which counsel

understood to mean that B.P. “thought police were more credible.”

7
The district court denied the challenge because, considering the full

voir dire, B.P. “always expressed that he could be fair.” Counsel did

not use a peremptory challenge on B.P., and he served on the jury.

C. The District Court Did Not Abuse Its Discretion by Denying
Johnson’s Challenge for Cause to Juror B.P.

¶ 15 Johnson contends that the district court abused its discretion

by denying his challenge for cause to Juror B.P. because “B.P.’s

statements revealed that he could not apply the credibility

instruction equally to lay and law enforcement witnesses” and

would assume that police officers were more credible. We disagree.

¶ 16 True, a juror who indicates that police officers are more

credible simply because of their position may be unable to render

an impartial verdict. People v. Sandoval, 733 P.2d 319, 321 (Colo.

1987). And we acknowledge that B.P. apparently raised his hand

when defense counsel asked whether anyone thought police officers

were more credible. But we do not read B.P.’s actual responses as

reflecting a belief that police officers are inherently more credible.3

3 Johnson argues that B.P. “could not apply the credibility

instruction equally to lay and law enforcement witnesses,” but no
one asked B.P. about the credibility instruction or whether he
would judge the credibility of a lay witness differently than a law
enforcement witness.

8
¶ 17 Instead, B.P. indicated that officers are better prepared to

testify because everything they do is documented or recorded in

some way. B.P. said he would assess an officer’s testimony based

on their individual experience. And he said he believed he could be

fair to both sides, which the court credited. See id. (“It is the trial

court’s prerogative to give considerable weight to a potential juror’s

statement that [they] can fairly and impartially serve on the case.”);

Oliver, ¶ 11 (“In determining whether a potential juror can set aside

any preconceived notions and render an impartial verdict, the trial

court may consider a juror’s assurances that [they] can serve fairly

and impartially.”). Considering the entire voir dire, see Oliver, ¶ 7,

we conclude that the district court did not abuse its discretion

when it determined that B.P. would follow the law and be impartial,

see Clemens, ¶ 15.

¶ 18 We are not persuaded otherwise by Johnson’s argument that

B.P.’s expression of impartiality should be discounted because it

preceded his statements about police officer credibility and because

no one rehabilitated B.P. after defense counsel’s questioning. There

was no need for rehabilitation because none of B.P.’s statements

about officers reflected an “automatic acceptance” of their testimony

9
based solely on their status. Sandoval, 733 P.2d at 321; see People

v. Garcia, 2018 COA 180, ¶ 22 (the trial court was not required to

inquire further when the juror unequivocally stated he would follow

the law as instructed).

¶ 19 Given the substantial deference we afford the district court, we

conclude that it did not abuse its discretion by denying Johnson’s

challenge for cause. See People v. Cevallos-Acosta, 140 P.3d 116,

122 (Colo. App. 2005) (the trial court did not abuse its discretion by

denying a challenge for cause against a juror who said he would

weigh police testimony heavily but also said he wanted to make his

judgment based on the facts); People v. Richardson, 58 P.3d 1039,

1043 (Colo. App. 2002) (upholding the trial court’s denial of a

challenge for cause against a juror who had friends and family in

law enforcement and said he would “possibly” believe law

enforcement witnesses more, but who ultimately said “that both

sides would get a fair trial from him,” because the “entire voir dire

of this potential juror . . . support[ed] a finding that the juror would

be impartial”); see also People v. Fleischacker, 2013 COA 2, ¶ 27 (“It

is not necessary that a prospective juror state with absolute

certainty that [they] will set aside all potential bias.”).

10
III. Expert Testimony

¶ 20 Johnson contends that the district court erred by allowing

Investigator Spokas to give unqualified expert testimony about

(1) Voice over Internet Protocol (VoIP) phone numbers; (2) grooming;

(3) the Whisper application; (4) adult fetish websites; and (5) teen

slang. We perceive no reversible error.

A. Applicable Law and Standard of Review

¶ 21 CRE 701 governs the admission of lay witness testimony,

while CRE 702 governs the admission of expert testimony. Under

CRE 701, lay witness testimony is limited to “opinions or

inferences” that are (1) “rationally based on the perception of the

witness”; (2) “helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue”; and (3) “not

based on scientific, technical, or other specialized knowledge within

the scope of [CRE] 702.”

¶ 22 “[T]he critical factor in distinguishing between lay and expert

testimony is the basis for the witness’s opinion.” Venalonzo v.

People, 2017 CO 9, ¶ 22. We “must consider whether the testimony

could be based on an ordinary person’s experience or knowledge.”

People v. Murphy, 2021 CO 22, ¶ 21. If so, it is proper lay opinion

11
testimony if it meets the requirements of CRE 701. Id. at ¶¶ 17, 20.

But if a “witness provides testimony that could not be offered

without specialized experiences, knowledge, or training, then the

witness is offering expert testimony.” Venalonzo, ¶ 23.

¶ 23 “Police officers regularly, and appropriately, offer testimony

under CRE 701 based on their perceptions and experiences.”

People v. Tallwhiteman, 124 P.3d 827, 832 (Colo. App. 2005); accord

Murphy, ¶ 21. An officer’s testimony only “becomes objectionable

when what is essentially expert testimony is improperly admitted

under the guise of lay opinions.” People v. Stewart, 55 P.3d 107,

123 (Colo. 2002).

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

discretion. People v. Montoya, 2024 CO 20, ¶ 47. A court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair, or when it misapplies the law. Id.; Oliver, ¶ 7.

¶ 25 If the error is preserved by objection, we review it under the

harmless error standard and will reverse only “if the error

‘substantially influenced the verdict or affected the fairness of the

trial proceedings.’” Hagos v. People, 2012 CO 63, ¶ 12 (citation

omitted). If the error is unpreserved, we review for plain error. Id.

12
at ¶ 14. Plain error is both obvious and substantial. Id. An error is

obvious if it contravenes a statute or rule, a well-settled legal

principle, or established Colorado case law, Campbell v. People,

2020 CO 49, ¶ 25, and is “‘so clear-cut, so obvious,’ [that] a trial

judge should be able to avoid it without benefit of objection,” People

v. Crabtree, 2024 CO 40M, ¶ 42 (quoting Romero v. People, 2017 CO

37, ¶ 6). An error is substantial only if it “so undermined the

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

the reliability of the judgment of conviction.” Id. at ¶ 43 (citation

omitted). The defendant bears the burden of establishing that plain

error occurred. People v. Conyac, 2014 COA 8M, ¶ 54.

B. VoIP Testimony

¶ 26 Johnson contends that the district court erred by allowing

Investigator Spokas to testify that Johnson used a VoIP phone

number and that such phone numbers are “untraceable.” We see

no reason to reverse.

¶ 27 Notably, Johnson failed to object to most of the testimony he

now challenges on appeal. And, with one exception, when Johnson

did object, he objected on different grounds. Thus, this claim of

error is largely unpreserved. See Forgette v. People, 2023 CO 4,

13
¶ 21 (“To preserve an issue for appellate review, a party must make

a timely objection on the record” that is “specific enough to draw

the trial court’s attention to the asserted error.” (citations omitted));

People v. Ujaama, 2012 COA 36, ¶¶ 37-38 (an issue is unpreserved

if the objection is made on different or unspecified grounds that

would not have alerted the trial court to the issue on review).

Ordinarily, we review an unpreserved contention for plain error.

See Hagos, ¶ 14. But because we conclude that any error was

harmless, we treat the whole of Johnson’s contention as preserved.

See id. (“[Plain] error must impair the reliability of the judgment of

conviction to a greater degree than under harmless error to warrant

reversal.”).

1. Additional Background

¶ 28 Investigator Spokas testified during direct examination that

Johnson used Voice over Internet Protocol or VoIP applications or

phone numbers to video call and text the persona. The investigator

explained how to obtain a VoIP phone number and that such

numbers only work on Wi-Fi. The investigator noted using a VoIP

number “obviously . . . keeps somebody more anonymous” because

the number is “not registered to them in any way, shape, or form.”

14
The investigator also explained that he decided to arrange an in-

person meeting because Johnson was using VoIP “services, or these

fake phone numbers that don’t come back to anybody.” Defense

counsel did not object to any of this testimony.

¶ 29 During redirect examination, the prosecutor asked, “The

V[o]IPs, the phone numbers that are not linked back to

individuals[,] . . . how do you get one of those on your phone?”

Investigator Spokas began to answer, “[K]ind of like I said before,

you can just go into —” when defense counsel objected, “This is

outside the scope. I didn’t ask anything about Voice [o]ver Internet

Protocol, and he’s not an expert in this.” The district court

overruled the objection. Investigator Spokas explained that a

person can obtain a VoIP number from different applications and

that the assigned number is not connected to a cellular network

and only works on Wi-Fi.

¶ 30 The prosecutor then asked: If a person deleted a VoIP

application or was not on Wi-Fi “would those V[o]IP numbers, would

you still be able to contact somebody, or would they still be able to

receive communication?” The investigator answered, “No, they

15
cannot —” when defense counsel objected, “Speculation. It’s a Rule

702 problem as well, Judge.” The court overruled the objection.

2. Any Error in Allowing Investigator Spokas’ Testimony
on VoIP Phone Numbers Was Harmless

¶ 31 We are not convinced that Investigator Spokas’ VoIP testimony

was expert testimony, but even assuming it was, we conclude that

any error in admitting it was harmless. See Hagos, ¶ 12.

¶ 32 Investigator Spokas testified generally about VoIP phone

numbers, including that someone can obtain one by downloading

an app, that they work only over Wi-Fi, and that they allow

someone to have a separate number that is “more anonymous” and

does not “come back to anybody.” He also testified that Johnson

used a VoIP phone number to communicate with the persona. But

that testimony did not directly prove any element of the charged

crimes and had little bearing on Johnson’s guilt. Johnson did not

contest that he sent sexually explicit text messages to the persona

or arranged to meet her; rather, his primary theory of defense was

that he believed the persona was an adult engaging in “age play” by

pretending to be thirteen. That Johnson used a VoIP number to

communicate with the persona did not disprove that belief.

16
¶ 33 Investigator Spokas also testified that he had been an

investigator in the Child Sex Offender Internet Investigations Unit

for five years, went through a testing and selection process to

become part of the unit, and studied social media applications. He

said that his work was “geared towards social media, protecting

kids online,” and that the unit also provided “technology safe

presentations” at schools. Based on Investigator Spokas’

background and training, he likely would have been qualified to

testify as an expert regarding VoIP phone numbers had he been

offered as one. See Conyac, ¶ 67 (any error in admitting unqualified

expert testimony was harmless, in relevant part, because the

witness was qualified to offer expert testimony). Investigator

Spokas’ testimony was also helpful to the jury and likely would

have satisfied CRE 702, which allows for the admission of qualified

expert opinion testimony if it will assist the trier of fact to

understand the evidence or to determine a fact in issue. And

Johnson does not argue that the prosecution’s failure to endorse

the investigator as an expert hindered his ability to cross-examine

the investigator effectively or to obtain his own competing expert.

See Conyac, ¶ 69.

17
¶ 34 Accordingly, we conclude that any error by the district court in

admitting the VoIP testimony as lay testimony was harmless as it

did not substantially influence the verdict or impair the fairness of

the trial. See Zapata v. People, 2018 CO 2, ¶ 62; see also Pernell v.

People, 2018 CO 13, ¶ 22 (“[A]n objected-to trial error is harmless if

there is no reasonable possibility that it contributed to the

defendant’s conviction.”).

C. Grooming Testimony

¶ 35 Johnson contends that the district court erred by allowing

Investigator Spokas to testify about common grooming behavior for

a person who commits sexual assault on children. We perceive no

plain error.

1. Additional Background

¶ 36 During cross-examination, defense counsel asked Investigator

Spokas about a few of the messages between the persona and

Johnson. Counsel read aloud Johnson’s message that he was

“looking for someone to fuck,” and the persona’s response, “[I]f we

vibe, I’d be down.” Counsel asked the investigator what he

“intend[ed] to convey by saying, if we vibe.” Investigator Spokas

responded, “That’s common vernacular that’s used with teenagers

18
that basically means, if we get along.” Later, when questioning the

investigator about Johnson arranging to meet the persona for

lunch, counsel asked, “[S]o the point was, the first step in whatever

was going to occur here, was to meet for lunch to see if you vibed,

and if you got along with Mr. Johnson?” The investigator

responded affirmatively.

¶ 37 During redirect examination, the prosecutor asked Investigator

Spokas if, “in [his] experience, [it is] common that people engage in

forming friendships or grooming activities,” to which the

investigator stated, “Very often. Yes.” The prosecutor continued,

“Does that include buying someone food or gifts or something like

that?” The investigator said, “Yes.” Defense counsel objected that

the testimony was “[o]utside the scope.” After an off-the-record

bench conference, the district court sustained the objection in part.

The prosecutor then asked the investigator, “And so, in your

experience on some of these websites and sexual conversations, is it

common to engage in relationship-building or vibing, if you will, or

activities like buying lunch, that sort of thing?” Investigator Spokas

answered, “Yes.” Defense counsel did not object.

19
2. The District Court Did Not Plainly Err
by Allowing the Challenged Testimony

¶ 38 As a threshold matter, we agree that Investigator Spokas’

testimony about grooming behavior was unqualified expert

testimony. See Romero, ¶ 10 (“[A]n ordinary citizen could not be

expected to be familiar with sexual predators’ strategies . . . .”). But

Investigator Spokas testified about grooming before defense

counsel’s “[o]utside the scope” objection. The court partially

sustained the objection, and the prosecutor rephrased her question

to focus on “relationship-building” and “vibing.” Defense counsel

did not object again, nor did he ask for further relief regarding the

testimony that preceded his objection. See People v. Alemayehu,

2021 COA 69, ¶ 101 (declining to consider an alleged error when

the trial court effectively sustained the defendant’s objection by

ordering the prosecutor to rephrase, and defense counsel requested

no additional relief).

¶ 39 Notably, defense counsel explored the topic of “vibing” on

cross-examination. Defense counsel repeatedly asked the

investigator about the messages between Johnson and the persona

arranging to have lunch to check if they “vibed.” And but for the

20
single reference to “grooming” — which was not repeated after

defense counsel’s objection was sustained — the prosecutor’s

redirect questions and the investigator’s answers were appropriately

responsive to cross-examination. On this record, we cannot

conclude that the challenged testimony was obviously unqualified

expert testimony that the district court should have sua sponte

disallowed. See Crabtree, ¶ 42; Campbell, ¶ 25.

D. Other Challenged Testimony

¶ 40 Johnson contends that the district court plainly erred by

allowing Investigator Spokas to testify that (1) it was “apparent” that

there were minors on the Whisper application; (2) there are

adult-only role play and fetish websites that confirm a user’s age;

and (3) the slang terms he used as the persona are “frequently

used” by teens. We perceive no error, let alone plain error.

1. Additional Background

¶ 41 Investigator Spokas testified that the Whisper application had

no requirements to prove identity or age before signing up and that

the age options a user could choose ranged from fifteen years old to

forty-five and older. During redirect examination, the prosecutor

asked the investigator if, based on his experience, the Whisper

21
application had users under the ages of seventeen and fifteen.

Investigator Spokas answered, “Yes.” The prosecutor then asked if

it was “apparent that there are users under the age of [seventeen]

on the app.” The investigator answered affirmatively “based on

other users who have started conversations with our teen personas”

who “turn[] out to be a real [fifteen year old].” The investigator later

testified that there are websites specifically “designed for adults

with role play or fetishes that require credit card payment and

[identification] confirmation[].” Defense counsel did not object.

¶ 42 Investigator Spokas also testified about various slang terms he

used when posing as the persona and about how teenagers

commonly used those terms. For example, the investigator

explained that “lol” meant “[l]augh [o]ut [l]oud, or [l]aughing [o]ut

[l]oud,” “rn” meant “right now,” “asf” meant “as fuck,” “omg” meant

“oh my god,” “tryna get done” meant “trying to get done,” and “sum”

meant “something.” Defense counsel did not object.

2. The District Court Did Not Plainly Err
by Allowing the Challenged Testimony

¶ 43 We acknowledge that Investigator Spokas had training in

investigating child sex offenses on the internet that likely included

22
the topics about which he testified, but that does not mean the

challenged testimony was so outside the experience or knowledge of

an ordinary person that it obviously constituted expert testimony.

See Murphy, ¶ 21; Venalonzo, ¶ 22.

¶ 44 Investigator Spokas’ testimony that it was “apparent” there

were minors on the Whisper application was based on his

observations using the application. Any ordinary person could use

the Whisper application, interact with a user, and provide the same

testimony. See People v. Glover, 2015 COA 16, ¶ 52 (detective’s

testimony about Facebook was not expert testimony because it was

based on knowledge “common among ordinary people using . . .

Facebook”). Similarly, given the widespread use of the internet, one

does not need specialized training or experience to know that there

are fetish websites for adults that require age confirmation. See id.

Because the challenged testimony could be based on an ordinary

person’s experience or knowledge, the court did not err by admitting

it as lay testimony. See Murphy, ¶ 21.

¶ 45 Likewise, the investigator’s testimony about teen slang terms

did not require special training or knowledge. Most of the

referenced abbreviations and acronyms are well known; many have

23
become part of the common vernacular. See, e.g., Merriam-Webster

Dictionary, https://perma.cc/KMX5-Y4E6 (defining “LOL” as “laugh

out loud; laughing out loud”); Merriam-Webster Dictionary,

https://perma.cc/Y6V7-NJ75 (defining “OMG” as “oh my God”);

Merriam-Webster Dictionary, https://perma.cc/YK8X-NKU5

(defining “tryna” as “used for ‘trying to’ in informal speech”). And

others are easily discernable from the context of the messages. See

Glover, ¶ 53 (the meaning of “street slang” was ascertainable from

the context in which it was used); People in Interest of D.I., 2015

COA 136, ¶ 29 (If “an officer’s opinion could be reached by an

ordinary person based on a process of reasoning familiar in

everyday life, it is admissible as lay opinion evidence.” (citation

omitted)). An ordinary person who interacts with a teenager or uses

text messaging to communicate could testify as Investigator Spokas

did. Accordingly, the court did not err by admitting the testimony

as lay testimony. See Murphy, ¶ 21.

IV. Prosecutorial Misconduct

¶ 46 Johnson contends that the district court plainly erred by

allowing the prosecutor to use his post-arrest silence to imply his

guilt in violation of his due process rights. We disagree.

24
A. Applicable Law and Standard of Review

¶ 47 Every person has a constitutional right to remain silent during

police questioning. See U.S. Const. amend. V; Miranda v. Arizona,

384 U.S. 436, 460-61 (1966). Before a custodial interrogation,

police must inform a suspect “that he has a right to remain silent,

that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney, either

retained or appointed.” Miranda, 384 U.S. at 444. “A person is in

custody for Miranda purposes if [he] has been formally arrested or

if, under the totality of the circumstances, a reasonable person in

the suspect’s position would have felt that [his] freedom of action

had been curtailed to a degree associated with formal arrest.”

People v. Garcia, 2017 CO 106, ¶ 20. It is improper for a prosecutor

to allude to a defendant’s exercise of his right to remain silent “as

indicating a consciousness of guilt,” People v. Wright, 511 P.2d 460,

462 (Colo. 1973), “because the Miranda warnings implicitly assure

the defendant that his silence will carry no penalty,” People v.

Davis, 312 P.3d 193, 198 (Colo. App. 2010) (citing Doyle v. Ohio,

426 U.S. 610, 619 (1976)), aff’d, 2013 CO 57.

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¶ 48 We engage in a two-step analysis when reviewing claims for

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we decide whether such actions warrant reversal under the

proper standard. Id.

¶ 49 We review de novo whether a prosecutor’s comments on a

defendant’s post-arrest silence violated his due process rights.

People v. Castro, 2022 COA 101, ¶ 20. And because the parties

agree that this issue is unpreserved, we will reverse only for plain

error. See Hagos, ¶ 14. For prosecutorial misconduct to constitute

plain error, it “must be flagrant or 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.” People v. McMinn, 2013 COA 94, ¶ 58.

B. Additional Background

¶ 50 Investigator Spokas testified that he was working undercover

at the restaurant drive-through on the day of the arranged meeting

between Johnson and the persona. He said he recognized Johnson

in the drive-through as the person from the video chat and alerted

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the nearby officers, Sergeant Michael Harris and Investigator

Vernon Woodin. Once Johnson parked, Sergeant Harris

approached the car with his gun drawn and ordered Johnson to

step out of the vehicle.

¶ 51 Sergeant Harris’ body camera footage, which defense counsel

admitted at trial, showed that Johnson did not immediately comply.

Investigator Spokas testified that Johnson appeared to be

“manipulating” his phone and “deleting or getting rid of . . . the

evidence of the communication with [the persona].” The officers

eventually removed Johnson from his car and placed him in

handcuffs. Johnson did not speak other than to ask, “What’s going

on?” The arrest lasted forty-four seconds. After Johnson was

placed in a police vehicle, he requested a lawyer and did not make

any other statements.

¶ 52 At trial, Johnson did not testify, but part of his theory of

defense as conveyed through counsel was that he did not believe he

was speaking to an actual child; rather, he “love[d] ageplay [sic].”

Defense counsel also implied that Johnson was trying to determine

if the persona was a scammer. For example, defense counsel asked

Investigator Spokas about “scam baiting,” which involves “engaging

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and wasting” a scammer’s time. And during closing argument,

defense counsel said, “We don’t really know, we can’t be in the

mind, of Sean Johnson. We don’t know if he’s someone who likes to

flesh out scammers on the Internet.”

¶ 53 During closing argument, the prosecutor said,

And when [Johnson is] stopped by law
enforcement, he doesn’t say ha ha caught you,
this was a scam. He doesn’t say, I thought she
was an adult. He starts deleting things off of
his phone. Because this is who he knew he
was talking to. And he knew what he was
going to do.

C. The District Court Did Not Plainly Err by Allowing the
Prosecutor to Comment on Johnson’s Post-Arrest Silence

¶ 54 As an initial matter, we reject the People’s argument that the

prosecutor’s comment was about Johnson’s silence while the

officers were “attempting to arrest” him. See People v. Rios, 2020

COA 2, ¶ 24 (explaining that a prosecutor should avoid commenting

on a defendant’s prearrest silence, but Fifth Amendment

protections do not apply in noncustodial settings). The entire

interaction beginning with the officers ordering Johnson out of his

car until Johnson was in handcuffs was only forty-four seconds.

The officers approached Johnson’s car with guns drawn and

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ordered him to get out. Under such circumstances, a reasonable

person in Johnson’s position “would have felt ‘deprived of his

freedom of action to the degree associated with a formal arrest’” and

would be considered in custody. People v. Null, 233 P.3d 670, 676

(Colo. 2010) (citation omitted). Thus, we understand the prosecutor

to have commented on Johnson’s custodial silence.

¶ 55 To determine whether the prosecutor’s comment was meant to

draw meaning from Johnson’s silence, we consider (1) whether the

remark was meant to create an inference of guilt, and (2) whether

the prosecutor argued that Johnson’s silence was an implied

admission of guilt. See Davis, 312 P.3d at 198-99. We conclude

that the prosecutor’s comment on Johnson’s custodial silence was

intended to suggest his guilt. The remark implied that, if Johnson

were innocent, he would have told arresting officers he believed he

was exposing a scammer or meeting an adult; conversely, his failure

to do so implied his guilt.

¶ 56 We reject the People’s argument that the prosecutor’s

comment was not intended to imply guilt because she “did not

argue that if [Johnson] were innocent, he would have explained his

defense to officers when he was arrested.” The prosecutor need not

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have so explicitly linked Johnson’s silence to his guilt for the

comment to have been improper. See id. Accordingly, we conclude

that the prosecutor committed misconduct.

¶ 57 Having determined that the prosecutor’s conduct was

improper, we must evaluate whether it warrants reversal under

plain error review. See Wend, 235 P.3d at 1096; see also People v.

Burnell, 2019 COA 142, ¶ 45 (“[N]ot every reference to a defendant’s

exercise of the right to remain silent requires reversal.”). We

conclude that the misconduct was obvious because the law is well

settled that a prosecutor may not use a defendant’s post-Miranda

silence to imply guilt. See Doyle, 426 U.S. at 619; Wright, 511 P.2d

at 462; People v. Coleman, 2018 COA 67, ¶ 35. But we also

conclude that the misconduct does not require reversal because it

did not so undermine the fundamental fairness of the trial as to

cast serious doubt on the reliability of the judgment of conviction.

See Hagos, ¶ 14.

¶ 58 To evaluate the effect of a prosecutor’s comment on a

defendant’s silence, we examine

(1) the prosecutor’s use of the post-arrest
silence; (2) which party elected to pursue the
line of questioning; (3) the quantum of other

30
evidence of guilt; (4) the intensity and
frequency of the reference; and (5) the trial
court’s opportunity to grant a motion for
mistrial or to give curative instructions.

Castro, ¶ 40.

¶ 59 As discussed, the prosecutor injected the issue into the case

and used Johnson’s silence to imply his guilt. But the prosecutor

made the comment in closing argument in response to the defense

theory that Johnson did not think he was talking to a real child or

was trying to expose an internet scam. The comment was brief, it

was not repeated, and it was not the prosecution’s primary

argument to establish Johnson’s guilt. The district court did not

have the opportunity to give a curative instruction because defense

counsel did not alert the court to the prosecutor’s misconduct. See

Domingo-Gomez v. People, 125 P.3d 1043, 1054 (Colo. 2005) (“The

lack of an objection may demonstrate the defense counsel’s belief

that the live argument, despite its appearance in a cold record, was

not overly damaging.” (citation omitted)).

¶ 60 Importantly, the evidence that Johnson committed the

charged conduct was overwhelming. The persona told Johnson she

was thirteen no less than five times. She also said she was not old

31
enough to drive and planned to sneak out of middle school to meet

him for lunch. Although Johnson discussed age play, he stopped

mentioning it once the persona insisted she was thirteen and said

she would not meet him if he did not believe her. Johnson told the

persona he needed to “be careful on devices others can read”

because he did not “want to get in trouble.” He sent the persona

several sexually explicit messages after she insisted her real age

was thirteen. And he made clear what he wanted to do when he

met the persona for lunch, telling her that he wanted to “kiss [her],

lick [her], fuck [her],” that “sex keeps the weight down,” and that he

could not “wait to find out how [she] taste[d].”

¶ 61 Considering the Castro factors and the record as a whole,

reversal is not required. See McMinn, ¶ 58; Hagos, ¶ 14.

V. Disposition

¶ 62 We affirm the judgment of conviction.

JUDGE HARRIS and JUDGE TOW concur.

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