Peo v. Frazier

22CA2253 Peo v Frazier 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2253
El Paso County District Court No. 22CR829
Honorable Gilbert A. Martinez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Frazier,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE GRAHAM
J. Jones and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

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

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, David Frazier, appeals his convictions on two

counts of second degree assault and on one count each of

menacing, kidnapping, extortion, and robbery. We affirm.

I. Background

¶2 The following summary of events is drawn from record

testimony. Although Frazier disagrees with the chronology, it is

supported by the record.

¶3 Frazier and the victim, S.R., met through a dating app in

December 2021. By the end of the month, they had moved in

together and were engaged. At trial, S.R. testified that the

relationship started well but that Frazier became abusive after she

moved in. The first incident occurred on January 9, 2022, after an

argument when Frazier placed his hands on S.R.’s neck and

strangled her until a roommate intervened. S.R.’s work supervisor

testified that she noticed the marks on S.R.’s neck. Then on

February 1, a second argument resulted in Frazier shoving her into

a massage chair. S.R. then went to the bedroom to pack her bags

and leave the home. But before she finished packing, Frazier got a

gun and pointed it at her before unloading it and setting it on the

bed within his reach.

1
¶4 The next day, S.R. planned to leave without Frazier knowing.1

However, he noticed that she had packed a hair straightener in her

work bag, which made him suspicious, so, while armed, he followed

her to her car, got in it, and placed the firearm in the central

console. S.R. told him that she was leaving him and asked him to

get out of the car. He refused and rode with her to work. Once

there, he yanked the keys from her hand, cutting her fingers, and

told her that if she didn’t quit, she’d never work again. He then

followed her into her workplace and stood by her as she resigned.

The two returned to the car and Frazier, armed with the gun, told

her to drive. She drove for approximately forty-five minutes while

he held the firearm and directed her.

¶5 Returning home, they sat in the car and talked for hours.

During that time, Frazier gave S.R. the gun and told her to shoot

him, but she refused. Eventually, they returned to their apartment.

Once inside, Frazier went with S.R. to the bedroom. He then

grabbed her, held her down on the bed, and made her swear that

she would not leave him. S.R. complied, and he released her. Later

1 Frazier disputes that S.R. accurately recounted the date of the

February 2 incident. The record does not support his argument.

2
that day, S.R. returned to work and rescinded her resignation. A

few days later, during an argument about cigarettes, Frazier

headbutted S.R., bruising her nose and chest and cutting his own

head.

¶6 The abuse escalated further on or about February 8.2 After

realizing that S.R. had the phone number of one of his friend in her

contacts, Frazier became extremely upset and accused her of

cheating. He had taken her debit card and demanded that she

transfer money from her second bank account into her checking

account, so he could use the money at a strip club. S.R. refused,

and Frazier’s money demands and threats escalated, as described

more fully in Part II.E.1 below. S.R. eventually gave in to his

demands and transferred approximately $60,000 into the checking

account and $1,500 directly to one of Frazier’s friends.

¶7 To appease him, and to seek a public place, S.R. then

suggested they go to the strip club together. That night, she

recovered her debit card after it fell from his pocket, and the next

2 The record is unclear about exactly when this incident occurred.

S.R. testified that it occurred on February 8 but also said that the
next day was February 9 or 10. Regardless, the testimony shows
that this incident occurred between February 6 and 10.

3
day at work, she called the police. Frazier was subsequently

arrested and charged with twenty-one counts stemming from these

domestic violence incidents. The prosecution narrowed the charges

to eight before trial, and he was ultimately convicted of six counts

and acquitted of two, both of which were misdemeanors. The court

sentenced him to forty years in the custody of the Department of

Corrections.

II. Analysis

¶8 Frazier contends that reversal is required because (1) the trial

court failed to conduct an inquiry under People v. Arguello, 772

P.2d 87 (Colo. 1989), and People v. Bergerud, 223 P.3d 686 (Colo.

2010), after he repeatedly interrupted the prosecutor’s closing

argument, resulting in the court removing him from the courtroom;

(2) the trial court erroneously admitted evidence; (3) the prosecutors

committed misconduct during closing argument; (4) the foregoing

errors amount to cumulative error; and (5) there was insufficient

evidence to sustain his robbery conviction. We address each

contention in turn.

4
A. Required Inquiries under Arguello and Bergerud

¶9 Frazier argues that the trial court erred by removing him from

the courtroom — without conducting any inquiry under Arguello

and Bergerud — after Frazier asserted his innocence during the

prosecutor’s closing argument and fired his attorney in front of the

jury. We disagree.

1. Additional Background

¶ 10 Frazier’s first attorney was a public defender, but that attorney

withdrew based on an irreconcilable conflict of interest. The court

then appointed alternate defense counsel to represent him.

¶ 11 When the prosecutor began closing argument, Frazier

interrupted her and — in front of the jury — told the court that

there was evidence proving his innocence that had not been

presented to the jury. The court excused the jury from the room,

reminded Frazier that he had chosen not to testify, and warned him

that he would be removed from the courtroom if he made

statements in front of the jury. The jury returned, and not long

after, Frazier interrupted again. The following exchange occurred.

[FRAZIER]: They’re lying, Your Honor. I’m in
custody. She quit her job.

5
[THE PROSECUTOR]: They drove around from
6:45 --

THE COURT: Sir, no statements.

[FRAZIER]: She quit her job.

THE COURT: Sir, no statements.

[FRAZIER]: From what I knew --

[SECOND PROSECUTOR]: Your Honor, I ask
the jury be excused during the outburst.

THE COURT: I don’t want any more
statements, sir, period.

[FRAZIER]: Based off procedural law --

THE COURT: No.

[FRAZIER]: I want a motion to suppress all
evidence. All of the discovery and charges --

THE COURT: If the jury would be excused
again, please.

[FRAZIER]: -- free --

([Frazier] continued to talk unintelligibly.)

(The jury left the courtroom.)

[FRAZIER]: -- I’m in custody, Your Honor. I’m
locked up right now. And she’s free, and
they’re not getting the full evidence. I told you
all about the full evidence since I had this
case, and no one is going to get it. No one
came to ask me nothing. Y’all just came and
arrested me off of what she said. This is not
fair, and you don’t even call my family back.

6
THE COURT: I’m going to give you one more
chance. All right? I’m going to ask you again
not to make any statements. If you make one
more statement again, I’m going to have you
removed from the courtroom and we’re going to
proceed with closings. It’s up to you. Are you
going to make some more outbursts? It’s up to
you, sir. Are you going to have more
outbursts, or not? I’m talking to you, Mr.
Frazier.

All right. You have fair warning. You’ve had
two outbursts. I’m letting you go with two. If
you have one more outburst, I’m going to
excuse the jury, and I’m going to have you
excused because we’re going to proceed to
closings with or without you. One more
chance, and that’s it.

Go ahead and get the jury. You get one more,
chance, sir, and that’s it. We’ll proceed with or
without you.

(The jury entered the courtroom.)

¶ 12 The prosecutor continued with closing argument for a moment

before Frazier interrupted again.

[FRAZIER]: I need to talk to counsel, my lawyer
that I fired.

THE COURT: If the jury can please leave the
courtroom again.

[FRAZIER]: The lawyer that I fired, I showed all
my information.

(The jury left the courtroom.)

7
THE COURT: The record should reflect the
jurors have left the courtroom. If court and
transport will take [Frazier] to the holding cell,
please.

[DEFENSE ATTORNEY]: We’ve got several
issues now before he goes that we need to
discuss.

THE COURT: Go ahead.

[DEFENSE ATTORNEY]: We’ve got several
issues now. There’s been a couple -- for lack
of a better word, we’ve had several outbursts.
He told the jury he’s in custody. I think there
might be a basis for a mistrial because of the
outbursts. And he raised an issue of
ineffective assistance of counsel, and he fired
me in front of the jury. So I think we probably
need to deal with that at this point.

THE COURT: How would you suggest we deal
with it?

[DEFENSE ATTORNEY]: I -- I don’t know. I
mean, I think he can fire his attorney at this
point. I know you have to accept it.

THE COURT: . . . I’m not going to accept the
firing and have you go to closing.

[DEFENSE ATTORNEY]: Okay. And I’m
prepared for that. I’m just . . .

THE COURT: Also, in regard to the
mistrial -- well, any response from the district
attorney?

[SECOND PROSECUTOR]: We obviously
resist[] any motion for a mistrial. This is all

8
[Frazier’s] own doing, so there’s no grounds for
a mistrial.

THE COURT: In regard to the mistrial, I’m
going to deny the grounds for a mistrial. The
record should reflect I did give [Frazier] an
opportunity to not talk, not outburst. I
warned him if he was going to have an
outburst, that indeed I would have him taken
into -- and proceed to closings with or without
him. He’s chosen to have an outburst again,
so I’m going to proceed to closing without him.
Is there any instruction you wish me to give
the jury once they come back in regard to
[Frazier] not being in the courtroom?

[DEFENSE ATTORNEY]: I’ve never had this
happen, Your Honor. I don’t know what
instruction there would be. Have you?

THE COURT: I would suggest that we advise
the jury that we’re going to proceed to closing
without the Defendant in the courtroom, and
they should not hold that against him.

The court held the remainder of the closing arguments in Frazier’s

absence.

¶ 13 After the jury returned its verdicts, Frazier filed a handwritten

motion with the trial court describing his disagreements with his

counsel, perceived ethical breaches, and his complaints with the

presentation of evidence at trial. The court held a hearing the next

week to address his concerns. At the hearing, the court heard

Frazier’s complaints, which were primarily directed toward his

9
attorney’s failure to conduct further investigation, provide

discovery, and secure witnesses on his behalf. His counsel

explained that he had provided Frazier with all discovery materials

and said that, because Frazier “said he was ready and wasn’t

waiving [the] speedy trial [deadline],” he could not do any additional

investigation. The court did not find a conflict of interest or

breakdown in communication, but, nevertheless, it allowed his

counsel to withdraw and appointed new alternate defense counsel.

2. Applicable Law and Standard of Review

¶ 14 A criminal defendant has a constitutional right to be present

for all critical stages of the trial. U.S. Const. amend. VI; People v.

Janis, 2018 CO 89, ¶ 16; see also Crim. P. 43. However, “the right

to be present is not absolute. A defendant may waive [his] right to

be present either expressly or through [his] conduct.” Janis, ¶ 17;

see also Crim. P. 43.

¶ 15 “[T]he denial of a defendant’s request for new counsel should

be reviewed for abuse of discretion.” Bergerud, 223 P.3d at 696 n.4.

And we review a preserved claim of the erroneous denial of a

request for new counsel and requirement to proceed with a

10
court-appointed attorney “under principles of harmless error.” Id.

at 696.

3. The Trial Court Did Not Abuse Its Discretion by Removing
Frazier Without an Arguello Advisement or Bergerud Inquiry

¶ 16 Frazier argues that after his third outburst during closing

argument, the trial court was required to inquire and advise him

under Arguello and Bergerud.

¶ 17 In Arguello, the court “granted certiorari to clarify what

standard applies in evaluating the validity of a waiver of the right to

counsel, and to determine whether [the defendant] through his

conduct impliedly waived his right to counsel.” 772 P.2d at 92.

¶ 18 Our review of the record does not demonstrate that Frazier

sought to waive his right to counsel. Nor is it clear from the record

that Frazier actually voiced objections to his counsel to the court.

In fact, after closing arguments, the court said that “the [d]efense

attorney made the statement that he was fired. I didn’t hear that,

but I’ll take him for his word.”

¶ 19 To be sure, the record shows that Frazier said, “I need to talk

to counsel, my lawyer that I fired,” and after the court removed

Frazier, his counsel said that “he raised an issue of ineffective

11
assistance of counsel, and he fired me in front of the jury.”

However, the record before us does not contain the actual firing or

an assertion of ineffective assistance of counsel. And at the

post-trial conflict hearing, the trial court did not find a conflict of

interest or breakdown in communications; instead, it simply

allowed his counsel to withdraw.

¶ 20 And to the extent that Bergerud was implicated by the firing

statements, application of its four-factor test to evaluate a request

for new counsel heavily favors the trial court’s determination.3

First, Frazier waited to raise his unclear objection to his counsel

until after the close of evidence, during the prosecutor’s closing

argument. Second, while the court made clear that counsel would

proceed through the remaining argument, it held a post-trial

hearing and inquiry on the issue and did not find a conflict of

3 To measure the constitutional implications of a defendant’s

request for new counsel, we inquire into (1) the timeliness of the
motion; (2) the adequacy of the court’s inquiry into the defendant’s
complaint; (3) whether the attorney-client conflict is so great that it
resulted in a total lack of communication or otherwise prevented an
adequate defense; and (4) the extent to which the defendant
substantially and unreasonably contributed to the underlying
conflict with his attorney. People v. Bergerud, 223 P.3d 686, 695
(Colo. 2010).

12
interest. Third, the record supports a conclusion that there was no

conflict “so great that it resulted in a total lack of communication or

otherwise prevented an adequate defense.” Bergerud, 223 P.3d at

695. And fourth, Frazier substantially and unreasonably ignored

the trial court’s warnings in such a way as to suggest that he was

lodging his vague objection “to unnecessarily delay the judicial

process.” Id. Thus, the trial court did not abuse its discretion by

failing to stop the trial and provide Frazier with new counsel, which,

as the court noted, would have required a mistrial.

It is essential to the proper administration of
criminal justice that dignity, order, and
decorum be the hallmarks of all court
proceedings in our country. The flagrant
disregard in the courtroom of elementary
standards of proper conduct should not and
cannot be tolerated. We believe trial judges
confronted with disruptive, contumacious,
stubbornly defiant defendants must be given
sufficient discretion to meet the circumstances
of each case. No one formula for maintaining
the appropriate courtroom atmosphere will be
best in all situations.

Illinois v. Allen, 397 U.S. 337, 343 (1970).

¶ 21 Here, when faced with an obstreperous defendant who had

thrice interrupted the prosecutor’s closing and received two

warnings, the trial court acted within its discretion and removed

13
him from the courtroom. See People v. Cohn, 160 P.3d 336, 341

(Colo. App. 2007) (“[A] defendant is deemed to have waived his right

to be present if, ‘[a]fter being warned by the court that disruptive

conduct will cause him to be removed from the courtroom, [the

defendant] persists in conduct which is such as to justify in his

being excluded from the courtroom.’” (quoting Crim. P. 43(b)(2))).

Under these circumstances we discern no error in the trial court’s

failure to conduct an Arguello inquiry or a Bergerud inquiry before

removing Frazier from the courtroom.

B. Evidentiary Contentions

¶ 22 Frazier contends that the trial court erred by admitting

(1) victim impact evidence; (2) evidence of other bad acts; and

(3) expert testimony in the guise of lay testimony. We disagree with

each contention.

1. Preservation and Standard of Review

¶ 23 The People argue that Frazier failed to preserve his evidentiary

arguments for appeal. We agree in part.

¶ 24 “To preserve a claim, a party must make an objection ‘specific

enough to draw the trial court’s attention to the asserted error.’”

People v. Tallent, 2021 CO 68, ¶ 12 (quoting Martinez v. People,

14
2015 CO 16, ¶ 14). When a party presents a new argument or

alters the grounds for an objection on appeal, the issue is forfeited

and reviewable only for plain error. Id.

¶ 25 Frazier’s counsel objected to testimony from S.R. as being

unduly prejudicial and subsequently objected to similar testimony

from one of her coworkers, but he did not object to later testimony

from a second coworker. His objection to the first coworker’s

testimony was based on speculation and prejudice, and he did not

specifically argue to the court that it was impermissible victim

impact evidence. But Frazier argues on appeal that the coworker’s

objected-to testimony should have been barred under CRE 403

because its probative value was substantially outweighed by the

danger of unfair prejudice; this issue is preserved. We conclude

that Frazier’s assertion of prejudice, vague though it may have

been, was substantial enough to include victim impact.

¶ 26 The remainder of Frazier’s evidentiary arguments are

unpreserved because his attorney did not object with specificity or

because Frazier advances new grounds for objection on appeal. See

People v. Snelling, 2022 COA 116M, ¶¶ 33-34.

15
¶ 27 We review evidentiary rulings for an abuse of discretion.

People v. Garrison, 2017 COA 107, ¶ 30. And we review claims of

nonconstitutional trial error that were preserved by objection for

harmless error. Hagos v. People, 2012 CO 63, ¶ 12. However, we

review all other claims of error, constitutional and

nonconstitutional, that were not preserved by objection for plain

error. Id. at ¶ 14. In doing so, we reverse only if the error was

obvious and substantial. Id.

¶ 28 “An error is ‘obvious’ if it is so clear cut that the judge should

have been able to avoid it without the benefit of an objection.”

People v. Rojas, 2025 COA 25, ¶ 44. An error is substantial if it “so

undermines the fundamental fairness of the trial itself as to cast

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

Hagos, ¶ 22; see also Rojas, ¶ 44.

2. Victim Impact Evidence

¶ 29 At trial, the victim testified that she had post-traumatic stress,

anxiety, and depression, and that she had missed work, lost hair,

lost focus, and needed psychological help due to Frazier’s actions.

Frazier’s counsel objected regarding a lack of medical records, and

the trial court effectively sustained the objection by saying, “Let’s

16
move on.” See People v. Carian, 2017 COA 106, ¶¶ 63-64 (telling

the prosecutor to “stay away” from the line of questioning effectively

sustained an objection and cured any potential prejudice). While

this somewhat ambiguous statement is not the preferred ruling on

an objection, in context the trial court’s statement effectively

prohibited further inquiry about S.R.’s mental health and diagnoses

from the prosecutor.

¶ 30 Frazier argues, citing People v. Martinez, 2020 COA 141, ¶ 40,

that the victim impact testimony was irrelevant and that its sole

function was to garner sympathy for S.R. But his argument fails to

account for the substantial evidence of guilt that was presented to

the jury. Thus, any error in allowing the testimony was, in our

view, harmless given the other, overwhelming evidence of guilt.

¶ 31 The numerous incidents of abuse spanned a considerable

amount of time. See People v. Dunlap, 975 P.2d 723, 744-46 (Colo.

1999). And, unlike in Martinez, ¶ 40, this was not a case where

“the victim impact evidence [did not make] any material fact or

element of the offense more or less probable.” Instead, S.R.’s and

her coworkers’ testimony was relevant. S.R.’s testimony explained

her and Frazier’s relationship, Frazier’s actions over time, her

17
reluctance to call the police, and the control that Frazier had over

her. Likewise, S.R.’s coworkers’ testimony corroborated S.R.’s story

and showed the control Frazier had over her. Their testimony was

particularly probative considering Frazier’s theory of the case was

that S.R. fabricated the abuse.

3. Other-Acts Evidence

¶ 32 Frazier contends that the trial court erred by admitting

testimony that (1) one of Frazier’s friends was his drug dealer;

(2) there were other uncharged incidents of domestic abuse; and

(3) the Colorado Springs Police failed to investigate other incidents.

He argues that this testimony constituted other-acts evidence and

that the trial court failed to conduct the necessary CRE 404(b)

analyses.

¶ 33 Under Rule 404(b), subject to limited exceptions, “[e]vidence of

any other crime, wrong, or act is not admissible to prove a person’s

character in order to show that on a particular occasion the person

acted in conformity with the character.” And “Rule 404(b)(3)

requires that, in criminal cases, the prosecution provide the court

and the defendant with reasonable notice of its intent to introduce

18
other-acts evidence in writing before the trial.” Rojas v. People,

2022 CO 8, ¶ 26.

¶ 34 First, at trial, S.R. — in response to a question from the

prosecutor about why Frazier’s friend gave her his number —

testified that the friend “was [Frazier’s] coke dealer, and he was in

the vehicle and was able to calm him down.” Frazier’s counsel

immediately requested a bench conference and moved for a mistrial,

which the court denied. However, Frazier’s counsel did not ask for

the trial court to strike the testimony from the record or to instruct

the jurors to disregard it. On appeal, Frazier argues that the court

erroneously admitted the evidence and failed to strike it from the

record.

¶ 35 Contrary to Frazier’s argument, the statement that the friend

was Frazier’s cocaine dealer was fleeting, and the court immediately

instructed the prosecutor to “go to a different area.” Additionally,

this statement was not inadmissible “[e]vidence of any other crime,

wrong, or act . . . to prove a person’s character in order to show that

on a particular occasion the person acted in conformity with the

character.” CRE 404(b)(1). Instead, it was largely irrelevant, albeit

a bit prejudicial, evidence that showed how S.R. knew someone.

19
¶ 36 We also note that the jury heard testimony, not challenged on

appeal, that S.R. stole opiates and oxycodone and, under duress,

used the drugs with Frazier. This evidence tended to paint S.R. and

Frazier with the same brush. A momentary further reference to a

friend who sold Frazier drugs did not further besmirch his

character or so undermine “the fundamental fairness of the trial

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

conviction.” Hagos, ¶ 22.

¶ 37 Second, on cross-examination, Frazier’s attorney asked S.R.,

“How many domestic violence incidents were there?” and, after

saying he did not understand her testimony about “all this other

stuff,” “How many incidents were there?” S.R. testified specifically

to the five charged domestic violence incidents that formed the

basis for the eight charges brought against Frazier. But after she

recounted the specific events, she said, “So I would say anywhere

from eight to ten incidents.” Frazier’s attorney did not object to his

own question and instead pressed S.R. on why she did not call the

police but instead purchased a firearm for herself. On appeal,

Frazier argues that S.R.’s “eight to ten incidents” statement was

impermissible other-acts testimony.

20
¶ 38 However, Frazier’s counsel invited any error from S.R.’s

response of “eight to ten incidents” by specifically asking about the

number of incidents. See People v. Shackelford, 511 P.2d 19, 20

(Colo. 1973) (holding that it was invited error for defense counsel to

ask open-ended questions on cross-examination that resulted in an

undesirable response). Therefore, Frazier’s contention is barred by

the invited error doctrine. See People v. Wittrein, 221 P.3d 1076,

1082 (Colo. 2009) (“Under our invited error doctrine, ‘a party may

not complain on appeal of an error that he has invited or injected

into the case; he must abide the consequences of his acts.’” (quoting

People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989))).

¶ 39 But even if this error was not invited, and assuming without

deciding that the testimony was subject to Rule 404(b)’s other-acts

framework, its admission was not plain error. The statement was a

single fleeting reference, elicited by Frazier’s counsel, and used to

undermine S.R.’s own credibility. “An ambiguous reference to a

defendant’s prior criminal misconduct or other bad acts does not

warrant a mistrial. Moreover, when a reference to improper

conduct is fleeting, as it was here . . . , the potential prejudice is

minimized.” People v. Compos, 2019 COA 177, ¶ 37 (citations

21
omitted), aff’d in part and vacated in part, 2021 CO 19; see also

People v. Salas, 2017 COA 63, ¶ 12; People v. Lahr, 2013 COA 57,

¶¶ 24, 27. Thus, S.R.’s statement did not so undermine “the

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

the reliability of the judgment of conviction.” Hagos, ¶ 22.

¶ 40 Third, in response to a jury question about why the Colorado

Springs Police Department did not work together with the El Paso

County Sheriff’s Office, Deputy Zach Lacey testified as follows:

So the reason as far as jurisdictional
boundaries go, we run into what’s called
joinder issues. If two different agencies
investigate potentially -- or if two different
agencies investigate a crime that occurred in
the opposite agency’s jurisdiction, we run into
what’s called a joinder issue. So how they
kind of divide that up is CSPD will take the
portion that happened in their jurisdiction
only, and then we take the portion that
happened in our jurisdiction only, versus both
of us investigating it together. That’s why we
do that.

The prosecutor then asked,

And in this case was there a reason that you
took over the entire investigation and I guess
let CSPD off the hook?

[DEPUTY LACEY:] No, not specifically -- not
specific reason, no. I guess I had assumed,
and shame on me, that they were still

22
investigating the portion that happened on
their half and I was investigating the portion
that happened on my half, but it appears that
may not have been the case.

¶ 41 Frazier argues that Deputy Lacey’s reference to “happened on

their half” implied that other uncharged acts occurred and that his

“shame on me” statement implied that these uncharged acts were

important. And he asserts that this statement implicated Rule

404(b).

¶ 42 Contrary to Frazier’s argument, Deputy Lacey’s statements

were not evidence of other crimes, wrongs, or acts, and did not

trigger a Rule 404(b) analysis. Instead, his statement explained his

investigation and the jurisdictional challenges he faced. And, even

if this statement could be read as implicating impermissible

other-acts testimony, any error in allowing the fleeting reference to

“happened on their half” was not substantial. See Compos, ¶ 37.

4. Expert Testimony in the
Guise of Lay Testimony

¶ 43 Frazier contends that the trial court erred by allowing Deputy

Lacey to testify that a mark on S.R.’s neck corroborated her story

because that was expert testimony. We disagree.

¶ 44 The following exchange occurred on direct examination:

23
Q. [PROSECUTOR:] Deputy, I’m handing you
what’s been marked as Exhibit 1. Did you
take that photograph?

A. I did, yes.

Q. And what is that a photograph of?

A. Those are the -- the markings on the back of
her neck from the fingernails of the individual
that allegedly strangled her.

Q. Okay. And it’s tough to see on that photo.
Is there any bruising on the neck that you can
see?

A. Not that I can see, no.

Q. Okay. At that time had [S.R.] told you
about an event involving strangulation?

A. She did.

Q. And did she tell you that there was an
injury to the back of her neck?

A. She did.

Q. And the picture that you saw, does that
corroborate what she told you?

[DEFENSE ATTORNEY]: I’m gonna object to
speculation, Your Honor, and hearsay.

THE COURT: Objection is overruled.

Q. [PROSECUTOR:] You can answer.

A. Yes.

24
¶ 45 Then on cross-examination, Frazier’s counsel asked the

following clarifying question:

Q: Okay. So when you talk about
corroboration, I mean, you’re not here saying,
yeah, this happened definitely, you’re just
kinda saying there’s some mark where she
said there might be a mark?

A: That’s accurate.

¶ 46 Contrary to Frazier’s argument, Deputy Lacey’s initial

testimony did not require specialized training or education. See

CRE 702 (“If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert . . . may testify thereto

in the form of an opinion or otherwise.”). Taking the question in

context, he was asked whether, when he took the photos, there

were marks on S.R.’s neck as she said there were. This testimony

was not based on specialized knowledge; instead, it was based on

his personal knowledge of what he saw and photographed, and was,

therefore, lay testimony. See CRE 701 (“If the witness is not

testifying as an expert, the witness’ testimony . . . is limited to those

opinions or inferences which are (a) rationally based on the

perception of the witness . . . .”)

25
¶ 47 Frazier alternatively argues this testimony was irrelevant

because, as a lay witness, Deputy Lacey was in the same position to

view the photo as the jury. But this argument ignores the fact that

Deputy Lacey was not just viewing the photograph; instead, he took

the photograph and testified about what he saw at that time. The

record shows that the photograph was somewhat unclear.

Therefore, testimony from the photographer that there was no

bruising visible in the photograph, but that there were fingernail

marks present, was relevant and helpful to the jury. See CRE 401

(“‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”).4

¶ 48 Thus, the trial court did not err by permitting Deputy Lacey’s

testimony.

4 Even if Deputy Lacey’s lay testimony was irrelevant, any error in

its admission does not cast serious doubt on the reliability of the
judgment of conviction because — as Frazier argues — “[t]he jury
had that picture” and “was in just as good a position to make that
assessment.” Under that line of reasoning, Deputy Lacey’s
testimony was duplicative, and it did not misrepresent the evidence
presented to the jury.

26
C. Prosecutorial Misconduct

¶ 49 Frazier contends that the prosecutors committed misconduct

during their closing arguments by (1) making an assertion about

typical dynamics of domestic violence; (2) asserting personal

knowledge; (3) asking the jury to hold Frazier accountable; and

(4) suggesting that the police had screened the case to determine

whether charges were warranted. We disagree.

1. Standard of Review and Applicable Law

¶ 50 Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We

review such claims using a two-step analysis: (1) was the

prosecutor’s conduct improper based on the totality of the

circumstances, and, if so, (2) does any such improper conduct

warrant reversal according to the proper standard of reversal.

Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). Each step is

analytically independent of the other, and we can affirm on either

step. Id.

¶ 51 When, as here, a defendant did not object to the asserted

misconduct, the plain error standard of review applies.

27
Domingo-Gomez, 125 P.3d at 1053. In the context of plain error, we

“must inquire into whether the errors seriously affected the fairness

or integrity of the trial.” Id. And “[o]nly prosecutorial misconduct

which is ‘flagrantly, glaringly, or tremendously improper’ warrants

reversal.” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App.

1997)).

¶ 52 “We evaluate claims of improper argument ‘in the context of

the argument as a whole and in light of the evidence before the

jury.’” People v. Van Meter, 2018 COA 13, ¶ 24 (quoting People v.

Geisendorfer, 991 P.2d 308, 312 (Colo. App. 1999)). And we

recognize that “[a] ‘prosecutor has wide latitude to make arguments

based on facts in evidence and reasonable inferences drawn from

those facts.’” Id. (quoting People v. Strock, 252 P.3d 1148, 1153

(Colo. App. 2010)).

2. The Prosecutors’ Statements
Do Not Constitute Plain Error

¶ 53 Frazier asserts that five of the prosecutors’ statements require

reversal for plain error.

¶ 54 First, Frazier asserts that, without the support of expert

testimony, the prosecutor improperly characterized S.R.’s demeanor

28
as “all the signs of someone who is under the control and

manipulation of another person.” However, this statement was

tethered to the evidence presented at trial and was a reasonable

inference drawn from that evidence. It was not improper. See

Domingo-Gomez, 125 P.3d at 1048.

¶ 55 Second, Frazier argues that the prosecutor improperly injected

his own knowledge of domestic violence and credibility into the case

by saying “welcome to the world of domestic violence, folks. Did

you expect it didn’t happen behind closed doors? Did you expect to

hear these things happened in front of other witnesses?” This

statement was made on rebuttal in response to Frazier’s argument,

and prosecutors have “considerable latitude in replying to opposing

counsel’s arguments and in making arguments based on facts in

evidence and reasonable inferences that can be drawn from those

facts.” People v. Allgier, 2018 COA 122, ¶ 52. Additionally, a

prosecutor “may employ rhetorical devices and engage in oratorical

embellishment and metaphorical nuance, so long as he or she does

not thereby induce the jury to determine guilt on the basis of

passion or prejudice, attempt to inject irrelevant issues into the

case, or accomplish some other improper purpose.” People v. Allee,

29
77 P.3d 831, 837 (Colo. App. 2003). This statement, responding to

argument and based on the evidence or lack thereof presented, was

not improper.

¶ 56 Additionally, Frazier argues that the prosecutor asserted

personal knowledge by saying that “[w]e know that” the kidnapping

incident happened on February 1 or 2. This statement was directly

based on the evidence presented at trial and was not improper. See

Domingo-Gomez, 125 P.3d at 1048; Allgier, ¶ 52.

¶ 57 Third, Frazier asserts that during rebuttal argument, the

prosecutor impermissibly asked the jury to hold Frazier

accountable for going on the offensive against S.R. when she tried

to leave him.5 Again, a prosecutor has wide latitude to respond to

opposing counsel’s arguments, Allgier, ¶ 52, and may employ

proper rhetorical devices and embellishments, Allee, 77 P.3d at 837.

In the context of this case, and Frazier’s counsel’s argument that

5 Frazier asserts that People v. Buckner, 2022 COA 14, ¶¶ 41-55,

holds that a “prosecutor’s plea to ‘[h]old the defendant accountable’
was plain error.” Buckner neither holds nor states this. Instead,
Buckner holds that “[a] prosecutor may not pressure jurors to ‘do
justice’ for a victim,” id. at ¶ 42, and it reiterates that a prosecutor
“may not ‘pressure jurors by suggesting that guilty verdicts are
necessary to do justice for a sympathetic victim,’” id. at ¶ 44
(quoting People v. Marko, 2015 COA 139, ¶ 221).

30
S.R. went on the offensive against him, this statement was not

improper.

¶ 58 Lastly, Frazier asserts that the prosecutor, in response to

Frazier’s counsel’s argument that S.R. fabricated the allegation of

violence, improperly asserted that a screening process occurred by

saying,

Does [a false accusation of domestic violence]
happen? Yeah, it does. So how do we know it
wasn’t false? In this case, the police
investigated the crime and they found
corroborating evidence of it, right? This wasn’t
a case where the police went and said there’s
no evidence of it.

¶ 59 This statement’s propriety is less clear cut than the prior four.

However, assuming without deciding that this statement was

improper, when viewed under the lens of plain error, any invocation

of a screening procedure was not “flagrantly, glaringly, or

tremendously improper.” Avila, 944 P.2d at 676 (quoting People v.

Vialpando, 804 P.2d 219, 224 (Colo. App. 1990)). In the context of

the trial and the evidence presented, see Van Meter, ¶ 24, the

prosecutor’s statements did not seriously affect the fairness or

integrity of the trial or cast serious doubt on the reliability of the

31
jury’s verdicts. Thus, the prosecutor’s statements do not warrant

reversal. See Domingo-Gomez, 125 P.3d at 1053.

D. Cumulative Error

¶ 60 Frazier contends that under the cumulative error doctrine, a

new trial is required because numerous errors occurred, and in the

aggregate, they deprived him of a fair trial. We disagree.

¶ 61 The doctrine of cumulative error requires that numerous

errors occurred, not merely that they were alleged. People v. Daley,

2021 COA 85, ¶ 141. “For reversal to occur based on cumulative

error, a reviewing court must identify multiple errors that

collectively prejudice the substantial rights of the defendant, even if

any single error does not. Stated simply, cumulative error involves

cumulative prejudice.” Howard-Walker v. People, 2019 CO 69, ¶ 25

(citation omitted).

¶ 62 We have found, or assumed, a few errors. But we do not

perceive their cumulative impact as denying Frazier his right to a

fair trial. See Martinez, ¶ 89.

E. Sufficiency of the Evidence of Robbery

¶ 63 Lastly, Frazier contends that there was insufficient evidence to

support his robbery conviction. In doing so, he argues that the

32
prosecution failed to present evidence that he took anything of

S.R.’s from “within her reach, inspection, or observation.” We

disagree.

1. Additional Background

¶ 64 As stated above, on or about February 8, 2022, Frazier had

S.R.’s debit card and demanded that she transfer $1,000 from her

second bank account — holding $180,000 in proceeds from a

recent home sale — to her checking account tied to the debit card

he could access. S.R. refused, and Frazier left the room and then

returned with tape and bleach. He also had possession of her gun,

but the trial testimony is unclear about exactly when during this

incident he retrieved or brandished it. Frazier then demanded that

she transfer $5,000 instead and threatened to pour bleach on her if

she refused. S.R. refused.

¶ 65 Frazier then ordered her into the bathroom and raised his

demand, now demanding that she transfer all the money. He then

threatened to tie her up with the tape and douse her in bleach. A

brief scuffle ensued, and, according to S.R., Frazier broke or

stomped on her toe. S.R. ended up curled up in the bathtub in the

fetal position while Frazier paced back and forth. And over the

33
course of hours, he stayed in the bathroom with her, making phone

calls, while his threats escalated. Armed with the gun, tape, and

bleach, he threatened that he would have his friends come over and

gang rape her and said that he would kill her and no one would find

her. S.R. eventually gave in, and Frazier made her — using her cell

phone — electronically transfer approximately $60,000 into the

account to which he had access and $1,500 directly to one of his

friends through CashApp, a money transfer application.

¶ 66 Frazier then allowed S.R. out of the bathroom, directed her

onto the living room couch, and told her she was going to give him

every paycheck from her work and that he was going to hit her

whenever he wanted. Then, at around 1 a.m., S.R. suggested that

they go to a strip club together so that he would stay calm and she

would be in a public place. They returned home around 4 a.m.,

and Frazier drove her to work at 6 a.m. S.R. testified that when

Frazier drove her to work, he had her keys, wallet, and phone.

2. Applicable Law and Standard of Review

¶ 67 A person commits robbery if he “knowingly takes anything of

value from the person or presence of another by the use of force,

threats, or intimidation.” § 18-4-301(1), C.R.S. 2024. “The

34
elements of robbery involve (1) conduct — the use of force, threats,

or intimidation; (2) circumstances — the thing must have value and

must be taken from the person or presence of another; and (3) a

result — the taking.” People v. Mortenson, 2023 COA 92, ¶ 7.

¶ 68 We review de novo whether the prosecution presented

sufficient evidence to sustain a conviction. Maestas v. People, 2019

CO 45, ¶ 13. In doing so, we employ a substantial evidence test,

asking “whether the evidence, ‘viewed as a whole and in the light

most favorable to the prosecution, is substantial and sufficient to

support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.’” Gorostieta v.

People, 2022 CO 41, ¶ 16 (quoting People v. Harrison, 2020 CO 57,

¶ 32). “[W]e must ‘give the prosecution the benefit of every

reasonable inference which might be fairly drawn from the

evidence.’ It does not matter that we might have reached a different

conclusion were we the triers of fact.” Id. at ¶ 17 (quoting Harrison,

¶ 32).

35
3. There Is Sufficient Evidence
to Support the Robbery Conviction

¶ 69 Frazier argues that to convict him of robbery, the prosecution

had to prove he used force or threats to take “anything of value

from the person or presence of another.” § 18-4-301(1). And he

asserts that the forced initiation of an electronic transfer did not

remove anything of value from S.R.’s person or presence or take

anything of value from “within [her] reach, inspection or

observation.” Mortenson, ¶ 8 (quoting People v. Borghesi, 66 P.3d

93, 103 (Colo. 2003)). Instead, he argues that the evidence only

supported his conviction for extortion. See § 18-3-207 C.R.S. 2024.

Frazier’s argument misapprehends the intent of the robbery statute

and the case law interpreting it.

¶ 70 “[O]ur robbery statutes are primarily intended to protect

persons and not property.” Borghesi, 66 P.3d at 101. And “[t]he

gravamen of robbery is the application of physical force or

intimidation against the victim at any time during the course of a

transaction culminating in the taking of property from the victim’s

person or presence.” People v. Bartowsheski, 661 P.2d 235, 244

(Colo. 1983).

36
¶ 71 Presence is not limited to current physical contact. See

Bartowsheski, 661 P.2d at 244. Instead, “[f]or property to be in a

victim’s ‘presence,’ the victim must be exercising, or have the right

to exercise, control over the item taken.” Mortenson, ¶ 8 (quoting

People v. Ridenour, 878 P.2d 23, 27 (Colo. App. 1994)). And “[t]he

property must also ‘be within the victim’s reach, inspection or

observation so that the victim would be able to retain control over the

property but for the force or threat of force directed by the

perpetrator against the victim.’” Id. (emphasis altered) (quoting

Borghesi, 66 P.3d at 103). Thus, “[i]n the robbery context, the term

presence is not so much a matter of being in the same location as

the property as it is a matter of control.” People v. James, 981 P.2d

637, 641 (Colo. App. 1998).

¶ 72 Here, S.R. had control over the second bank account — legally

and through her phone — and the mechanism of control was in her

physical presence. The evidence presented at trial demonstrated

that Frazier used violence, threats, and intimidation to force the

transfer of money that S.R. had the right to exercise control over

and that was within her observation, inspection, or control, and

that he took the money from her, both through the transfer to the

37
checking account and through the transfer to his friend. See

Mortenson, ¶ 7. Thus, there was sufficient evidence to convict

Frazier of robbery. See People v. Phillips, 219 P.3d 798, 800 (Colo.

App. 2009) (“If there is evidence upon which the jury may

reasonably infer an element of the crime, the evidence is sufficient

to sustain that element.”); § 18-4-301(1).

III. Disposition

¶ 73 The judgment is affirmed.

JUDGE J. JONES and JUDGE MOULTRIE concur.

38