Peo v. Kolacny

22CA2106 Peo v Kolacny 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2106
Douglas County District Court No. 21CR841
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Corey Neil Kolacny,

Defendant-Appellant.

JUDGMENT AFFIRMED, ORDER REVERSED,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 5, 2025

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Corey Neil Kolacny, appeals the conviction entered

on jury verdicts finding him guilty of felony menacing, criminal

mischief, prohibited use of a weapon, violation of a protection order,

and two counts of possession of a weapon by a previous offender.

We affirm Kolacny’s judgment of conviction but reverse the court’s

order imposing surcharges, costs, and fees, and we remand for

amendment of the mittimus.

I. Background

¶2 The prosecution charged Kolacny with the above offenses.

During a bifurcated trial in which the felony menacing, criminal

mischief, and prohibited use of a weapon charges were tried first,

the prosecution presented the following evidence.

¶3 Wil Lowery and Shannon Ball were in Lowery’s car, parked in

a public, on-street parking spot in Castle Rock, when they heard a

loud noise at approximately 10 p.m. Lowery thought someone had

thrown a rock at his car, so he got out to assess and discovered his

car had been damaged. While looking around to see who or what

might have caused the damage, he saw a nearby house. Although

Lowery said it was “pitch black,” he saw someone he described as a

white adult male wearing a lighter colored shirt move in the dark.

1
¶4 Lowery asked the person why he threw rocks at his car, and

the person responded that Lowery was on private property. As

Lowery continued to ask about the damage to his car, the person

responded, “[If] you step one foot closer, I’m going to blow it.”

Lowery did not see a weapon, but he heard a gunshot and saw a

flash and smoke rising from what he believed to be the muzzle of a

firearm. Lowery and Ball immediately drove away and later called

the police.

¶5 Officer Robert Schuster responded to the scene of the incident.

After confirming that Lowery had been parked in a public parking

space, he saw a person — later identified as Kolacny — leave a

nearby residence and stand behind a truck parked in the

residence’s driveway.

¶6 Officers detained Kolacny, interviewed him, and conducted a

protective sweep of his residence. Kolacny told investigating officers

that he was playing video games and watching television when he

heard a car backfire. Kolacny denied having a firearm, firing a gun

on the night of the incident, or being otherwise involved with the

shooting. Following the protective sweep, Officer Schuster found a

spent .45 caliber shell casing in the driveway and a slingshot in the

2
bed of the truck. Kolacny authorized officers to search his

residence, and Officer Schuster found a “Walther-labeled handgun”

(Walther gun) in a closet next to the front door and ten rounds of

rifle ammunition elsewhere in the home. Officers also found an

unspent .45 caliber bullet and “tactile gloves” in Kolacny’s home,

and, during a pat down search, they found three “nickel-sized

rocks” in Kolacny’s front pants pocket. Samples taken from

Kolacny’s hands and forearms that night later tested positive for

gunshot residue.

¶7 During their investigation, officers asked Kolacny whether he

had information about a neighboring home that was similar in

appearance to Kolacny’s home. The officers learned that the

neighboring home belonged to Kolacny’s grandfather. Officers

testified that Kolacny informed them that he didn’t have access to

his grandfather’s home, the home was locked, and his grandfather

wasn’t there. Officers obtained a warrant to search Kolacny’s

grandfather’s home several hours into their investigation. An officer

testified that, while the police waited for the search warrant, he

didn’t see anyone in the area besides Kolacny, and he didn’t see

anyone enter or exit Kolacny’s grandfather’s home. After obtaining

3
the search warrant for the grandfather’s home, officers entered

through the back door, which they discovered was neither locked

nor latched. Inside, officers found a magazine loaded with .45

caliber bullets and a “Taurus 911” .45 caliber handgun (Taurus

gun).

¶8 The trial was bifurcated so that the jury wouldn’t hear about

Kolacny’s prior offenses — an element of the possession of a

weapon by a previous offender charge — before it considered the

felony menacing, criminal mischief, and prohibited use of a weapon

charges during the first portion of the trial. After the second

portion of the trial, the jury convicted Kolacny as charged.

¶9 On appeal, Kolacny contends that the trial court erred by

admitting irrelevant and unduly prejudicial firearms evidence and

by admitting hearsay testimony regarding the cost of the damage to

Lowery’s car. He also contends that the prosecutor committed

misconduct during opening statements and closing argument.

Finally, he contends that the trial court erred by imposing

surcharges, costs, and fees without allowing him to request a

waiver based on his indigency.

4
¶ 10 We address each contention in turn. We affirm the judgment

of conviction on all counts but reverse the court’s imposition of

surcharges, costs, and fees and remand for correction of the

mittimus.

II. Firearm Paraphernalia Evidence

¶ 11 Kolacny contends that the district court erred by admitting

evidence of the Walther gun, rifle ammunition, and tactile gloves

(collectively, firearms paraphernalia) because such evidence was

irrelevant and unduly prejudicial. We agree that the court erred by

admitting the firearms paraphernalia but conclude that any error

was harmless.

A. Additional Facts

¶ 12 The morning of trial, defense counsel notified the court that

they1 were objecting to the admission of evidence of the Walther

gun. Defense counsel asserted the Walther gun was not a firearm

capable of shooting a projectile; rather, the Taurus gun was the

“operable” firearm that the prosecution theorized Kolacny fired from

the driveway. Thus, defense counsel argued that evidence of the

1 Kolacny was represented by two public defenders during the trial.

5
Walther gun was irrelevant and unfairly prejudicial. The

prosecution disagreed, asserting that the Walther gun was relevant

to the jury’s consideration of (1) Kolacny’s “bias and credibility,”

based on statements he made to officers the night of the incident;

and (2) the thoroughness of law enforcement’s investigation because

it demonstrated officers had considered but ruled out the Walther

gun as the weapon that was used in the incident.

¶ 13 Defense counsel also asserted that the rifle ammunition was

not relevant to the menacing charge because it was “not related to

the weapon that was fired.” As with the Walther gun, the

prosecution responded that the ammunition was relevant to

Kolacny’s bias and credibility and to whether law enforcement had

conducted a thorough investigation. The trial court determined it

didn’t yet have enough information to rule on the admissibility of

either piece of evidence.

¶ 14 Kolacny’s defense at trial was mistaken identity. During

opening statements, Kolacny’s counsel argued that the investigating

officers had failed to take “a lot of things into consideration” and

prematurely “arrested their only suspect” — Kolacny — who counsel

asserted was the wrong person. During trial, defense counsel

6
renewed the objection to the admission of evidence of the Walther

gun because it was a starter pistol2 incapable of firing bullets. In

response, the prosecution alleged that defense counsel had opened

the door to the evidence’s admission by asserting the officers had

not conducted a thorough investigation. Additionally, the

prosecution disputed defense counsel’s assertion that the Walther

gun was inoperable, arguing that a detective assigned to the case

indicated the Walther gun was capable of firing a live round and

should be considered a weapon. The court again determined it

didn’t have enough information to rule.

¶ 15 During his trial testimony, Officer Schuster said that he

routinely collects exculpatory and inculpatory evidence from crime

scenes to have a “full picture of the investigation.” When he entered

Kolacny’s residence, he was looking for “anything related to . . . the

initial report that rocks had been thrown . . . or anything related to

a firearm.” He thus documented the Walther gun and the rifle

2 Starter pistols’ barrels are specifically designed to fire only blank

cartridges and are most commonly used in track and field
competitions to signal the start of events and in special effects to
simulate the firing of gunshots. See Merriam-Webster Dictionary,
https://perma.cc/Y368-8ZNA.

7
ammunition because anytime officers investigate a scene with a

report of “shots fired . . . , anything that could be related to a

shooting is important.” Similarly, another officer testified that he

made note of the “tactile gloves” because “[p]eople sometimes use

those when they fire weapons.”

¶ 16 On cross-examination, Officer Schuster acknowledged that

there was no ammunition in the Walther gun when he found it. He

also acknowledged that it wouldn’t have been capable of shooting a

.45 caliber bullet. Additionally, Corporal Daniel Moffit, another

responding officer, testified he observed that the barrel channel of

the Walther gun had been sealed with filler, rendering it

permanently inoperable.

B. Standard of Review and Preservation

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

discretion. Gonzales v. People, 2020 CO 71, ¶ 25. A court abuses

its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair or is based on an erroneous understanding

of the law. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).

¶ 18 We apply the harmless error standard to preserved claims of

error and reverse only for errors that “substantially influenced the

8
verdict or affected the fairness of the trial proceedings.” Hagos v.

People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,

342 (Colo. 1986)).

¶ 19 We reverse unpreserved claims for plain error. Id. at ¶ 14.

Plain errors are “obvious” and “substantial.” Id. A “plain error” is

an error so obvious that a trial judge should be able to avoid it

without an objection. Scott v. People, 2017 CO 16, ¶ 16. An

obvious error is ordinarily one that contravenes (1) a clear statutory

command; (2) a well-settled legal principle; or (3) Colorado case law.

Id. An error must be “seriously prejudicial” to be considered

substantial; that is, the error must have so undermined the

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

reliability of the defendant’s conviction. People v. Ujaama, 2012

COA 36, ¶ 43; see Hagos, ¶ 14.

¶ 20 Kolacny objected to the admission of evidence of the Walther

gun on the basis that it was irrelevant and that “it would confuse

the jury and be prejudicial to [him].” He also objected to the rifle

ammunition’s admission on relevance grounds. Therefore, we

review these contentions for harmless error.

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¶ 21 However, we review for plain error Kolacny’s contention that

the rifle ammunition evidence was unduly prejudicial because he

didn’t contemporaneously object to its admission on that basis.3

We likewise review for plain error Kolacny’s contention that the

testimony about the tactile gloves was irrelevant and unduly

prejudicial because Kolacny didn’t raise any objection to that

testimony.

C. Applicable Law

¶ 22 Evidence must be relevant under CRE 401 and not unfairly

prejudicial under CRE 403 to be admissible. People v Greenlee, 200

P.3d 363, 366 (Colo. 2009), abrogated on other grounds by Rojas v.

People, 2022 CO 8. Evidence is relevant if it has any tendency to

make the existence of a fact of consequence more or less probable.

CRE 401. “Relevant evidence ‘need not prove conclusively the

proposition for which it is offered, . . . but it must in some degree

3 Kolacny’s opening brief refers to the firearms paraphernalia

evidence collectively and argues that the court’s admission of that
evidence was “irrelevant and prejudicial.” However, his objection at
trial focused on whether the evidence was irrelevant and, therefore,
inadmissible under CRE 402. Kolacny acknowledges that he didn’t
argue during trial, as he does here, that the rifle ammunition was
inadmissible under CRE 403 because any relevant probative value
was substantially outweighed by unfair prejudice.

10
advance the inquiry.’” Greenlee, 200 P.3d at 366 (quoting 2 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence

§ 401.04[2][b] (Joseph M. McLaughlin ed., 2d ed. 2008)).

¶ 23 While relevant evidence is generally admissible, see CRE 402,

CRE 403 permits the exclusion of relevant evidence if its probative

value is substantially outweighed by the danger of unfair prejudice.

Because CRE 403 strongly favors admissibility, on review, we afford

the evidence its maximum probative value and the minimum

reasonably expected unfair prejudice. People v. Gibbens, 905 P.2d

604, 607 (Colo. 1995).

¶ 24 Under the version of the statute in effect at the time of the

incident, a person commits felony menacing if

by any threat or physical action, he or she
knowingly places or attempts to place another
person in fear of imminent serious bodily
injury . . . [b]y the use of a deadly weapon or
any article used or fashioned in a manner to
cause a person to reasonably believe that the
article is a deadly weapon.

§ 18-3-206(1)(a), C.R.S. 2021.

¶ 25 A “[d]eadly weapon” includes “[a] firearm, whether loaded or

unloaded . . . that, in the manner it is used or intended to be used,

is capable of producing death or serious bodily injury.”

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§ 18-1-901(2)(e)(I)-(II), C.R.S. 2024. And a “[f]irearm” is “any

handgun, automatic, revolver, pistol, rifle, shotgun, or other

instrument or device capable or intended to be capable of

discharging bullets, cartridges, or other explosive charges.”

§ 18-1-901(3)(h).

¶ 26 Under the applicable version of the prohibited use of a weapon

statute, a person commits a crime by discharging a firearm

“[r]ecklessly or with criminal negligence.” § 18-12-106(1)(b), C.R.S.

2021.

D. Analysis

1. Walther Gun

¶ 27 The prosecution asserts that evidence of the Walther gun was

relevant to Kolacny’s credibility because the officers’ discovery of it

made it more probable that Kolacny wasn’t truthful when he told

them that he hadn’t possessed any firearms the night of the

incident. We disagree.

¶ 28 As captured in bodycam footage, Kolacny stated that he wasn’t

in possession of any guns on the night of the incident. But he

didn’t testify at trial. See People v. Segovia, 196 P.3d 1126, 1130

(Colo. 2008) (“If a witness takes the stand and testifies, [he] puts

12
[his] credibility in issue. Thus, the opposing party is entitled to

impeach the witness’s credibility.”) (citation omitted). Therefore, the

prosecution couldn’t use the Walther gun as extrinsic evidence to

challenge the credibility of Kolacny’s pretrial statements. See CRE

608(b) (noting that, generally, extrinsic evidence of specific

instances of a witness’s conduct can’t be used to attack or support

the witness’s character for truthfulness); see also People v. Thomas,

2014 COA 64, ¶ 42 (explaining that CRE 608(b) doesn’t prevent

admission of extrinsic evidence that specifically contradicts

defendant’s direct testimony). Accordingly, evidence of the Walther

gun was not relevant to Kolacny’s credibility.

¶ 29 Moreover, prosecution witnesses testified that the Walther gun

was inoperable and incapable of firing .45 caliber — or any other

caliber — ammunition. Thus, the admission of evidence of the

Walther gun didn’t advance the jury’s inquiry into whether Kolacny

had committed the offenses of menacing and prohibited use of a

weapon because those offenses were based on allegations that an

unknown person fired an unseen weapon into the air.

¶ 30 And we disagree with the People’s assertion that, regardless of

the Walther gun’s operability, it was relevant to rebut defense

13
counsel’s assertion that law enforcement hadn’t conducted a

thorough investigation. While “evidence may be independently

relevant to show that police conducted a thorough investigation,”

People v. Marks, 2015 COA 173, ¶ 34, defense counsel didn’t argue

that the officers hadn’t thoroughly investigated Kolacny; she argued

that law enforcement hadn’t investigated anyone else. Therefore,

the Walther gun evidence could not logically advance the jury’s

determination of whether law enforcement had investigated anyone

other than Kolacny.

¶ 31 Nonetheless, we conclude that the court’s error in admitting

evidence of the Walther gun was harmless. The prosecution

produced evidence at trial that, immediately following the incident,

Kolacny was the only individual observed in the area for several

hours while officers waited for a warrant to search the grandfather’s

house. It also produced a spent .45 caliber shell casing recovered

from the driveway of Kolacny’s home, which was immediately next

door to his grandfather’s house, and elicited testimony confirming

that officers were able to enter the grandfather’s home through an

unlocked door after obtaining the warrant; that officers recovered

the .45 caliber Taurus gun and .45 caliber magazine from the

14
grandfather’s home; and that Kolacny’s hands and forearms later

tested positive for gunshot residue.

¶ 32 And the jury — as evidenced by the substance of the jury

questions it submitted to the court during trial — carefully

evaluated the evidence presented to it. Contrary to Kolacny’s

assertion that the jurors’ extensive questions show “confusion” and

“distraction caused by the admission of the firearms

paraphernalia,” the record reflects that the jurors asked questions

throughout the trial. For example, the jury asked questions about,

among other things, Lowery’s and Ball’s actions and observations,

the distance between Kolacny’s home and Lowery’s car, the location

of Kolacny’s home relative to his grandfather’s home, whether there

were fingerprints on the .45 spent shell casing from Kolacny’s

driveway, whether Kolacny’s hands were tested for gunshot residue,

and whether the spent shell casing matched the type of ammunition

found in the Taurus gun’s magazine. And while the jurors asked a

few questions related to the Walther gun, they weren’t fixated on it.

¶ 33 Thus, considering the entirety of the record, we can’t conclude

that the court’s erroneous admission of evidence of the Walther gun

substantially impacted the verdict or affected the fairness of the

15
trial. See Masters v. People, 58 P.3d 979, 1002-03 (Colo. 2002) (“If

a reviewing court can say with fair assurance that, in light of the

entire record of the trial, the error did not substantially influence

the verdict or impair the fairness of the trial, the error may properly

be deemed harmless.” (quoting People v. Gaffney, 769 P.2d 1081,

1088 (Colo. 1989))).

2. Rifle Ammunition

¶ 34 Kolacny asserts that the rifle ammunition was irrelevant —

and the court’s admission of it was therefore erroneous — because

(1) there was no evidence that a rifle was involved in menacing the

victims; (2) the rifle ammunition was too large to fit in either the

Walther or the Taurus guns; and (3) neither the spent shell casing

found in Kolacny’s driveway nor the unfired live round inside the

Taurus gun was a rifle cartridge. We agree.

¶ 35 The People admit that the rifle ammunition couldn’t be fired

from either the Walther gun or the Taurus gun. And we reject the

People’s argument that the ammunition was relevant to challenge

Kolacny’s truthfulness because, as we’ve already concluded, the

prosecution couldn’t use extrinsic evidence to challenge Kolacny’s

credibility.

16
¶ 36 We likewise reject the People’s argument that admission of the

ammunition was relevant to the jury’s determination of the

menacing charge, for two reasons. First, because the rifle

ammunition alone couldn’t satisfy the definition of “[f]irearm,”

§ 18-1-901(3)(h), its admission couldn’t assist the jury in

determining whether Kolacny had menaced the victims by using a

deadly weapon. Second, because Lowery didn’t see the item that

caused the damage to his car or produced the flash and smoke that

he believed came from a firearm, we reject the assertion that the

rifle ammunition was probative of the jury’s determination of

whether Kolacny had used “any article,” § 18-3-206(1)(a), C.R.S.

2021, in a manner that caused the victims’ to reasonably believe

that a deadly weapon was involved. See People v. Carlson, 712 P.2d

1018, 1022 (Colo. 1986) (“In determining whether the challenged

evidence relates to a fact of consequence to the determination of

this case, we must necessarily look to the elements of the crime[s]

charged.”). Thus, the rifle ammunition was irrelevant, and the

court erred by admitting it.

¶ 37 Regardless, we conclude the court’s error — even if obvious —

did not substantially affect the fundamental fairness of the trial so

17
as to cast serious doubt on the reliability of the judgment of

conviction.

¶ 38 Our review of the record doesn’t indicate that the jury was

unduly focused on the rifle ammunition. While the jury asked

numerous questions during the trial, it asked only two questions

related to the ammunition: whether a rifle was found in Kolacny’s

residence and whether the rifle ammunition was pictured in one of

the prosecution’s admitted exhibits. Thus, we conclude that the

court’s erroneous admission of the rifle ammunition didn’t

substantially influence the verdict, impact the fundamental fairness

of the trial, or cast serious doubt on the reliability of Kolacny’s

conviction.

3. Tactile Gloves

¶ 39 Kolacny argues that evidence about the tactile gloves was

irrelevant because the prosecution presented no evidence Kolacny

wore the gloves the night of the incident or that the gloves were

otherwise involved. We agree.

¶ 40 At trial, while officers testified that tactile gloves may indicate

that a person uses firearms, the presence of the tactile gloves in

Kolacny’s residence — without more — didn’t help the jury

18
determine at any fact at issue, such as the identity of the shooter or

the type of weapon fired.

¶ 41 Nonetheless, we conclude the court didn’t plainly err by

admitting evidence about the tactile gloves. The testimony about

the tactile gloves was limited. And in closing argument, the

prosecution did not emphasize the gloves as key evidence

supporting any of the charges. Accordingly, we conclude the

limited references to the tactile gloves weren’t so prejudicial as to

cause us to seriously doubt the reliability of Kolacny’s conviction.

See People v. Lahr, 2013 COA 57, ¶ 24 (“[A]ll inadmissible evidence

is not equally prejudicial,” and on review, we may deem

inadmissible evidence to have less prejudicial impact when it is only

minimally referenced.).

III. Hearsay Testimony

¶ 42 Kolacny contends that the trial court reversibly erred by

admitting hearsay testimony about the cost of the damage to

Lowery’s car. We disagree.

A. Additional Facts

¶ 43 During direct examination, Lowery testified that he had owned

his car — an Audi A4 — for four to five months before the incident.

19
He also said that he was “really into cars,” and that he knew his car

had no previous damage because he looked at it frequently. When

the prosecutor asked Lowery to estimate the cost of the damage to

his car, Lowery said that he believed it amounted to about $2,000.

Defense counsel objected to Lowery’s testimony, arguing Lowery

was “getting into [hearsay] in regards to an estimation.” The court

overruled the objection, noting that Lowery could testify to the value

of the damage to his car to the extent that he knew the value. The

court further noted, “If it comes to an exact estimate or exact

damages, that’s a different topic.”

¶ 44 The prosecutor then asked Lowery if he had sought

information about what it would cost to fix his car and, if so,

whether that information changed his estimate of the value of the

damage to the car. Lowery responded that he had and that his

estimation of the damage to his car “was very similar to what [he]

was quoted.”

¶ 45 During closing argument, the prosecutor referenced Lowery’s

estimate of the cost of repairing his car stating, “[H]e told you that

he got an estimate . . . that can confirm that amount.”

20
B. Standard of Review and Preservation

¶ 46 We review a court’s admission of hearsay evidence for an

abuse of discretion. People v. Valles, 2013 COA 84, ¶ 53. A court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair or based on an erroneous understanding of

the law. Yusem, 210 P.3d at 463.

¶ 47 As an initial matter, the parties dispute whether Kolacny

preserved this issue for review. Because Kolacny objected to the

testimony as improper hearsay, we conclude that the issue was

sufficiently preserved.

C. Applicable Law

¶ 48 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Hearsay statements

are generally inadmissible unless an exception applies. CRE 802.

¶ 49 A person commits criminal mischief when he or she knowingly

damages another person’s real or personal property. § 18-4-501(1),

C.R.S. 2024. The damage element reflects the economic loss to the

victim, in terms of actual value, which is generally determined by

market value. People v. Dunoyair, 660 P.2d 890, 894-95 (Colo.

21
1983). In criminal mischief cases, “the value of the damage may be

determined by the costs of repair and replacement,” People v

Waters, 641 P.2d 292, 294 (Colo. 1981), as shown by competent

evidence, People v. Moore, 226 P.3d 1076, 1084 (Colo. App. 2009).

D. Analysis

¶ 50 When Kolacny was charged, criminal mischief was a class 6

felony if the aggregate damage to the property at issue was between

$1,000 and $5,000. § 18-4-501(4)(b)-(d), C.R.S. 2021. Thus, to

prove Kolacny committed felony criminal mischief, the prosecution

had to prove, among other things, that the damage Kolacny caused

to Lowery’s car amounted to between $1,000 and $5,000. See

§ 18-4-501(1), (4)(d), C.R.S. 2021; see also People v. Jamison, 220

P.3d 992, 993 (Colo. App. 2009) (noting the burden is on the

prosecution to prove the value of damage to property beyond a

reasonable doubt).

¶ 51 Kolacny contends Lowery’s testimony that Lowery’s estimation

of the damage to his car “was similar to what [Lowery] was quoted”

constituted hearsay because he asserted the estimation to prove the

truth of the amount of the damage and “crossed the line by

incorporating a third-party professional estimate.”

22
¶ 52 Even if we assume Lowery’s testimony was based on

information from a professional estimate and, thus, constituted

hearsay, we conclude any error was harmless. See Hagos, ¶ 12.

Kolacny doesn’t challenge the admissibility of Lowery’s testimony

about Lowery’s own estimation of the damage to his car. And

because that testimony was based on Lowery’s personal knowledge,

it was sufficient to support the damages element of the criminal

mischief charge. See CRE 602 (witnesses may testify to matters of

which they have personal knowledge); People v. Payne, 2014 COA

81, ¶ 26 (“[A]n owner is [always] competent to testify as to the value

of his or her property,” so long as the testimony “relate[s] to the

property’s value at the time of . . . the crime.”); see also People v.

Coahran, 2019 COA 6, ¶¶ 42-43 (victim’s testimony estimating

amount of damages to car could reasonably support defendant’s

conviction for felony criminal mischief). While Lowery’s testimony

was the only evidence of damage to his car in an amount necessary

to support a conviction for a class 6 felony, Kolacny’s counsel had

the opportunity to cross-examine Lowery on his statement but

didn’t do so.

23
¶ 53 We acknowledge that one of the responding officers testified

that his estimate of the damage to Lowery’s car was only about

$500. But it was up to the jury to assess the credibility of witness

testimony, consider it along with the other evidence presented, and

resolve any conflicts in the evidence. See People v. Poe, 2012 COA

166, ¶ 14 (the jury, as the fact finder, resolves conflicts,

inconsistencies, and disputes in the evidence). Accordingly, we

reject Kolacny’s assertion that Lowery’s testimony substantially

influenced the verdict or affected the fairness of the trial

proceedings.

IV. Prosecutorial Misconduct

¶ 54 Kolacny next asserts that the prosecutor committed

misconduct during her opening statement and closing argument by

misstating the law on the presumption of innocence. We disagree.

A. Additional Facts

¶ 55 During her opening statement — after discussing the evidence

related to the victims’ report of the incident and the resulting law

enforcement investigation, and before discussing the evidence

related to Kolacny’s words and actions that night — the prosecutor

24
told the jury, “[A]s we go through this trial, to look at the

misdirections and mistruths.”

¶ 56 In addition, during closing argument, the prosecutor said:

I want to talk to you about something the
Court has instructed and talked to you about.
While a defendant is presumed innocent, he is
not presumed credible. Credibility
determinations are your province, right? But
the defendant’s statements to officers on the
night of [the incident], they’re not presumed
credible. You don’t have to give him that
presumption. You can look at the evidence
and his statements, and they don’t line up,
right?

¶ 57 Kolacny’s counsel didn’t contemporaneously object to these

statements.

B. Standard of Review, Preservation, and Applicable Law

¶ 58 The primary purpose of an opening statement is to provide the

jury with an outline of what counsel expects the evidence will show.

People v. Bustos, 725 P.2d 1174, 1177 (Colo. App. 1986). “[A]

prosecutor may refer to evidence that subsequently will be adduced

at trial and draw inferences from that evidence.” People v. Estes,

2012 COA 41, ¶ 23. Likewise, a prosecutor has latitude during

closing argument and may refer to “the strength and significance of

the evidence, conflicting evidence, and reasonable inferences that

25
may be drawn from the evidence.” People v. Rhea, 2014 COA 60,

¶ 46 (quoting People v. Walters, 148 P.3d 331, 334 (Colo. App.

2006)). However, “[c]ounsel may not misstate or misinterpret the

law in closing arguments.” People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).

¶ 59 We engage in a two-step analysis to review a claim of

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

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

questionable conduct was improper based on the totality of the

circumstances.” Id. We evaluate the alleged misconduct by

examining the context of the argument as a whole and in light of

the evidence before the jury. People v. Strock, 252 P.3d 1148, 1153

(Colo. App. 2010).

¶ 60 Second, if the prosecutor’s conduct was improper, we

determine whether the misconduct warrants reversal. Wend, 235

P.3d at 1089; People v. Robinson, 2019 CO 102, ¶ 18. Because

Kolacny didn’t object to the prosecutor’s statements, we review for

plain error. See Wend, 235 P.3d at 1097. Only misconduct that is

“flagrantly, glaringly, or tremendously improper” warrants reversal

under the plain error standard. Domingo–Gomez v. People, 125 P.3d

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1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676

(Colo. App. 1997)). And “[p]rosecutorial misconduct in closing

argument rarely constitutes plain error.” Strock, 252 P.3d at

1152-53.

C. Analysis

1. Opening Statement

¶ 61 Kolacny asserts that the prosecutor’s opening statement,

“[r]ather than being a fair comment on the evidence, . . . gutted the

presumption of innocence,” therefore requiring that all his

convictions be overturned. We disagree.

¶ 62 The prosecutor made the challenged statement in the context

of explaining what she believed conflicts in the evidence would show

at trial. The prosecutor made no other references to “misdirections”

or “mistruths” in either portion of the bifurcated trial. This isolated

statement, when viewed in context, is hardly the kind of

“tremendously improper” statement that would warrant reversal of

Kolacny’s convictions.

¶ 63 However, besides a conclusory statement that the prosecutor’s

alleged misconduct applied to all his convictions, Kolacny doesn’t

present argument as to why his convictions for violation of a

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protection order and two counts of possession of a weapon by a

previous offender should be reversed. We therefore deem any

argument as to these convictions abandoned. See People v.

Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (A defendant’s “failure to

specifically reassert on . . . appeal all of the claims which the

district court disposed of . . . constitutes a conscious

relinquishment of those claims which he does not reassert.”).

2. Closing Argument

¶ 64 Kolacny first asserts that because he pleaded not guilty, he

must be presumed credible. Kolacny doesn’t cite any Colorado law

to support his assertion, however, and we have found none. To the

contrary, the credibility of any witness — including that of a

defendant — can be questioned. See § 13-90-101, C.R.S. 2024

(“Neither parties nor other [interested] persons . . . shall be

excluded” from the general rule that “[i]n every case the credibility

of the witness may be drawn in question.”). And, as noted, during

closing argument, the prosecution may make reasonable inferences

that may be drawn from the evidence. Walters, 148 P.3d at 334.

Kolacny didn’t testify during the first portion of the trial, but the

jury heard evidence about his statements to officers. The

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prosecutor, therefore, appropriately pointed out contradictions

between those statements and other evidence in the case. See

People v. Walker, 2022 COA 15, ¶ 41 (“Commenting on the lack of

evidence supporting a defense theory does not shift the burden of

proof.”).

¶ 65 Kolacny next asserts that the prosecutor’s argument was

legally inaccurate because it was the prosecution’s burden to

demonstrate each element of the charged offenses beyond a

reasonable doubt. But Kolacny fails to explain how the prosecutor’s

argument that Kolacny was not entitled to a presumption of

credibility undermined the prosecution’s obligation to prove each

element of the charged offenses beyond a reasonable doubt.

Moreover, the court instructed the jury on the presumption of

innocence — including the prosecution’s burden to prove each

element of each charged offense beyond a reasonable doubt — and

instructed the jury that it was the sole judge of each witness’s

credibility and the weight to afford to each witness’s testimony. We

presume the jury understood and followed these instructions. See

People v. Snelling, 2022 COA 116M, ¶ 22. Additionally, the lack of a

contemporaneous objection to this assertion “demonstrate[s] ‘the

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defense counsel’s belief that the live argument, despite its

appearance in a cold record, was not overly damaging.’” Walters,

148 P.3d at 334-35 (quoting Domingo-Gomez, 125 P.3d at 1054).

¶ 66 Under the totality of the circumstances, we conclude that

there was no prosecutorial misconduct, let alone conduct that was

flagrant, glaring, or tremendously improper.

V. Surcharges, Costs and Fees

¶ 67 Lastly, Kolacny contends, and the People agree, that the

postconviction court erred by (1) imposing victim assistance

surcharges per count instead of per action and (2) by failing to

provide him with an opportunity to demonstrate his indigence and

request a waiver of surcharges, costs, and fees.

¶ 68 The court imposed a total of $3,283.11 in surcharges, costs,

and fees. See § 18-25-101(1)(a), C.R.S. 2024 (restorative justice

surcharge); § 24-4.1-119(1)(a), C.R.S. 2024 (victim compensation

surcharge); § 24-4.2-104(1)(a)(I), C.R.S. 2024 (victim assistance

surcharge); § 24-33.5-415.6(1), C.R.S. 2024 (genetic testing cost). A

court may waive all or a portion of these fees and surcharges if the

court determines that Kolacny is unable to pay them. See

§ 21-1-103(3), C.R.S. 2024 (authorizing public defender application

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fee at sentencing); § 18-25-101(4) (authorizing waiver of restorative

justice surcharge); § 24-4.1-119(1.5) (authorizing waiver of victim

compensation surcharge); § 24-4.2-104(1)(c) (authorizing waiver of

victim assistance surcharge); § 24-33.5-415.6(9) (authorizing waiver

of genetic testing cost); see also People v. Fisher, 539 P.2d 1258,

1260 (Colo. 1975). Similarly, a court may order convicted

defendants to pay the costs in their cases unless they are unable to

pay them. § 16-18-101(1), C.R.S. 2024. And the surcharge for the

victims’ assistance fund should only be “levied on each criminal

action resulting in a conviction.” § 24-4.2-104(1)(a)(I) (emphasis

added).

¶ 69 Our review of the record indicates that the court entered its

surcharge, cost, and fees order outside Kolacny’s presence and

didn’t provide him with an opportunity to address his ability to pay.

The court also erroneously imposed a surcharge for the victims’

assistance fund based on each count of conviction. Accordingly, we

remand this case to the trial court to determine whether Kolacny’s

obligation to pay surcharges, costs, and fees should be waived

because he is unable to pay them. See Waddell v. People, 2020 CO

39, ¶ 28 (remanding case to the trial court because it added

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surcharges outside the defendant’s presence without giving him an

opportunity to request a waiver).

¶ 70 Because we are affirming the judgment of conviction, if the

court determines on remand that Kolacny has the ability to pay

some or all of the victims’ assistance fund surcharge, the court

must only impose that surcharge once, consistent with section

24-4.2-104(1)(a)(I).

VI. Disposition

¶ 71 The judgment of conviction is affirmed. The court’s order

imposing surcharges, costs, and fees is reversed. The case is

remanded to the trial court to determine whether Kolacny’s

obligation to pay some or all of the statutory surcharges, costs, and

fees should be waived because he is unable to pay them and, if

necessary, correct the mittimus accordingly.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

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