Peo v. Petrie

23CA0862 Peo v Petrie 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0862
Adams County District Court No. 20CR3391
Honorable Patrick H. Pugh, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Petrie,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE MEIRINK
Fox and Hawthorne*, JJ., concur

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

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Madeline Dobkin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, James Petrie, appeals his convictions for

possession with intent to manufacture or distribute a controlled

substance — methamphetamine and possession with intent to

manufacture or distribute a controlled substance — fentanyl. We

affirm.

I. Background

¶2 While conducting surveillance on a hotel in a high-crime area

from his police vehicle, Officer Isaiah Acosta noticed a black Jeep

Wrangler parked in the parking lot and saw a female enter on the

passenger’s side. Acosta drove closer to the car and observed that

Petrie, whom Acosta recognized from previous encounters and an

arrest, was the driver. Acosta knew, and quickly confirmed through

a database search, that Petrie was subject to an active felony arrest

warrant. After confirming the active warrant, Acosta followed

Petrie, who had started to drive away from the hotel parking lot.

Petrie failed to use a signal when turning, and Acosta pulled him

over. Before Petrie pulled over, Acosta saw him making “furtive

movements” towards the car’s rear passenger seat. Acosta arrested

Petrie and impounded the car. Consistent with departmental

policy, Acosta performed an inventory search and found a black

1
zippered bag under the passenger seat containing suspected

narcotics, empty plastic bags, and a scale.

¶3 The prosecution initially charged Petrie with two counts of

possession with intent to manufacture or distribute a controlled

substance and one count of unlawful possession of a controlled

substance. It endorsed Detective Geoffrey Coster as an expert on

“drug enterprise and distribution.” Coster testified that the

evidence seized was consistent with drug sales and distribution. A

jury found Petrie guilty of both counts of possession with intent to

manufacture or distribute a controlled substance.

II. Analysis

¶4 Petrie contends that (1) the trial court erred by denying his

motion to suppress evidence; (2) Detective Coster’s expert testimony

violated CRE 702 and 704 and the trial court’s pretrial rulings, and

it invaded the province of the jury; (3) the prosecutor engaged in

prosecutorial misconduct during rebuttal closing arguments; and

(4) the cumulative effect of these errors deprived him of a fair trial.

We disagree with each contention.

2
A. Evidence Suppression

¶5 Petrie claims that (1) the trial court erred by denying his

motion to suppress evidence; (2) Acosta’s search, which did not

produce an inventory list, only served pretextual investigatory

purposes; and (3) the trial court erred by failing to, on its own

motion, reconsider the suppression issue when Acosta’s trial

testimony conflicted with the court’s pretrial findings. We are

unpersuaded.

1. Additional Applicable Facts

¶6 Petrie moved to suppress the evidence found in his car,

arguing that Acosta lacked probable cause to search the car, did

not conduct a valid inventory search, and provided no inventory list

during discovery.

¶7 At a pretrial hearing, Acosta testified that after pulling Petrie

over, he approached Petrie’s car to explain that he stopped Petrie

because of Petrie’s active arrest warrant. Acosta asked Petrie to exit

the car and arrested him. Acosta also asked the female passenger

to exit the car. Acosta testified that he was unable to “get a positive

I.D.” on her because she did not provide him with any identification

and only gave him a name. Acosta ran the information the

3
passenger provided through a database, but he did not find a valid

driver’s license.

¶8 Acosta decided to impound Petrie’s car because (1) it was

parked illegally in a no-parking zone; (2) impounding ensured it

would not be stolen or damaged, given the area’s unsafe reputation;

(3) Acosta could not entrust Petrie’s car to the passenger without a

valid driver’s license and Petrie’s approval; and (4) Acosta did not

want to put Petrie in a situation where his car may not “be there or

be intact” if Petrie didn’t return within a reasonable amount of time

to retrieve it given Petrie’s $100,000 bond.

¶9 Consistent with the police department’s standard procedure,

Acosta said he conducted an inventory search of Petrie’s car to

ensure no items were “lost and/or stolen by [the] tow[ing]

compan[y].” During the search, Acosta found a black zippered case

in the same area where he saw Petrie making “furtive movements.”

Acosta stated that he opened the case to make sure there weren’t

any expensive electronics to note down on the inventory list. Inside,

Acosta found “baggies containing crystal-like substance; a dark-tar

like substance; [blue] pills, [] baggies, [and] a scale.” He did not find

“anything else of note” in the car. Acosta also found $1,040 in

4
Petrie’s wallet, which Petrie claimed he withdrew from the bank to

make his mortgage payment.

¶ 10 After the hearing, the court found the following:

• The People showed that the impoundment served an

administrative caretaking function.

• The determination to impound the car comported with

the government’s standard criteria.

• The evidence showed that Petrie was in custody with a

relatively high bond and would be unable to move the

car.

• There was no indication that Petrie asked to contact

anyone else who could pick up the car.

• The car was illegally parked in a high-crime area where

there were multiple reports of stolen or trespassed cars

and vandalism.

• Acosta testified that he opened the black zippered bag

because there may have been a high-value item inside

but instead found illegal substances and paraphernalia.

5
• Acosta testified that he did not find anything else of note

in the car or anything that would be included in an

inventory list.

• No tow sheet or inventory list was ever submitted to the

court.

The court expressed concern that there was “no evidence that the

officer conducted the inventory search in accordance with the

government’s policies” because “no written inventory list was

provided,” but it denied the motion to suppress and ultimately held

that the inventory search was valid and served the required

administrative caretaking function.

¶ 11 At trial, Acosta testified that in addition to the black zippered

case, he saw “DVDs and some trash.” During cross-examination,

defense counsel asked Acosta whether he created an inventory list

of everything else in the car and Acosta testified that he did. No

inventory list was submitted to the trial court before or during trial.

Petrie did not request a mistrial or ask the trial court to reconsider

its suppression ruling.

6
2. Standard of Review and Applicable Law

¶ 12 Review of a district court’s order regarding a defendant’s

motion to suppress involves a mixed factual and legal question.

People v. Allen, 2019 CO 88, ¶ 13. We defer to the court’s factual

findings if they are supported by competent evidence in the record,

but we review de novo the court’s application of the law to those

facts. Id. We limit our review to the evidence presented at the

suppression hearing. Moody v. People, 159 P.3d 611, 614 (Colo.

2007).

¶ 13 The Fourth Amendment to the United States Constitution and

article II of the Colorado Constitution prohibit unreasonable

searches and seizures. U.S. Const. amend. IV; Colo. Const. art. II,

§ 7. When an officer obtains evidence in violation of the Fourth

Amendment, “the exclusionary rule ordinarily bars the prosecution

from introducing that evidence against the defendant in a criminal

case.” People v. Thomas, 2021 COA 23, ¶ 12 (quoting People v.

Vaughn, 2014 CO 71, ¶ 10).

¶ 14 A warrantless search is presumptively unreasonable unless

the search falls within an exception to the warrant requirement.

Vaughn, ¶ 14. One such exception permits officers to conduct an

7
inventory search of a vehicle without a warrant based on probable

cause when that vehicle is lawfully impounded by law enforcement

officials. Id.

¶ 15 After impounding a vehicle, an officer may search the vehicle

to inventory its contents, provided that the search conforms to

standardized criteria limiting police discretion. Colorado v. Bertine,

479 U.S. 367, 372 (1987). Inventory searches “serve to protect an

owner’s property while it is in the custody of the police, to insure

against claims of lost, stolen, or vandalized property, and to guard

the police from danger.” Id. An inventory search conducted in

accordance with an established, standardized policy is generally

considered reasonable absent evidence that the officers conducted a

search with impermissible motives such as “in bad faith or for the

sole purpose of investigation.” Vaughn, ¶ 14 (quoting Pineda v.

People, 230 P.3d 1181, 1185 (Colo. 2010)).

¶ 16 The first question when analyzing the constitutionality of an

officer’s decision to impound a vehicle is whether standardized

criteria authorized the impoundment. Thomas, ¶ 14. Even if a

seizure complies with standardized criteria, the court must also ask

“whether the impoundment and subsequent inventory serve an

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administrative community caretaking function.” Id. at ¶ 15

(quoting People v. Brown, 2018 CO 27, ¶ 12). Valid community

caretaking purposes may include the need to remove vehicles that

impede traffic or threaten public safety or convenience, and the

need to protect the vehicle and its contents against vandalism or

theft. Id.

3. Analysis

¶ 17 Petrie does not challenge Acosta’s decision to conduct a traffic

stop, arrest him, or impound his car. Rather, he contends that

Acosta’s inventory search was purely pretextual, and the trial court

erred by denying his motion to suppress and by failing, on its own

motion, to reconsider its ruling.

¶ 18 We must first determine whether Acosta’s decision to impound

the car satisfied a community caretaking function. Thomas, ¶ 15.

Although Petrie parked his car on a residential street when Acosta

stopped him, Petrie parked in a no-parking zone. The car was not

blocking traffic, but it was parked in a very narrow part of the

street, and Acosta feared it could be damaged by other vehicles if

drivers were not paying attention. Petrie’s car was also parked in a

high-crime area, so there was a chance that his car might not be

9
there when he returned. Finally, Acosta testified that he could not

release Petrie’s car to anyone. We agree that Acosta’s decision to

impound the car served the community caretaking function.

¶ 19 Next, we address whether Acosta’s inventory search was in

bad faith or was pretextual. At the pretrial hearing, Acosta testified

that when an officer impounds a car, the department’s practice is to

inventory the vehicle’s contents (except items that would normally

be considered part of or associated with the vehicle such as floor

mats) to ensure the items in the car are accounted for so they’re not

lost or stolen by the towing companies.

¶ 20 While Acosta testified that the department’s practice is to

include a written inventory list with the tow sheet, nothing in the

record indicates that one was completed. Acosta testified that the

only items that would have been inventoried were the contents of

the black zippered bag, which were removed for testing. Acosta

testified that he did not find other notable items in the car that

needed to be inventoried.

¶ 21 Because the only items Acosta found in the car that would

have been included in the inventory list were properly removed for

evidentiary purposes and Acosta’s search was undertaken to

10
safeguard Petrie’s property, we conclude the inventory search was

not pretextual or conducted in bad faith.

¶ 22 Petrie’s motion to suppress alleged that “there were multiple

bags of items in the car[,] and they were not all searched. Nor were

they documented on an inventory form as required by police

procedures.” But Petrie does not identify any evidence supporting

this claim. We conclude that the trial court did not err in denying

Petrie’s motion to suppress. The search was not pretextual; rather,

Acosta conducted the search in accordance with departmental

procedures following a lawful impoundment.

¶ 23 Finally, Petrie contends that the trial court erred by failing to

reconsider the suppression issue on its own motion because

Acosta’s trial testimony that he found “DVDs and trash” contradicts

the testimony he gave at the suppression hearing — that, except for

the black zippered bag, Acosta found nothing of note. Petrie claims

that the evidence should have been suppressed because the court’s

ruling was based on Acosta’s prior testimony that no personal

property was found in the car beyond the seized items and that the

inconsistency should have prompted the court to reconsider its own

ruling. We disagree.

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¶ 24 “[A] trial court ought to focus its inquiry only on the

suppression hearing record, and not on the evidence and testimony

subsequently presented at trial.” Moody, 159 P.3d at 614. We are

similarly limited, as “an appeals court may only look to the

suppression hearing in reviewing a lower court’s ruling on such

matters.” Id. It is “the defendant’s obligation to ask the trial court

to reconsider a pre-trial suppression ruling based on evidence

subsequently adduced at trial.” People v. Martin, 30 P.3d 758, 760

(Colo. App. 2000). And, a trial court’s failure to act on its own

motion constitutes plain error only when the evidence presented at

trial so clearly undermines the court’s earlier ruling that the error

should have been immediately apparent. Id.

¶ 25 Petrie cites the trial court’s observation during the

suppression hearing that un-inventoried property could undermine

the administrative caretaking function, but he does not argue that

the un-inventoried items — specifically, the trash and DVDs — were

so significant that the court should have reconsidered its ruling.

For example, Petrie does not argue that Acosta’s trial testimony

would have changed the trial court’s suppression ruling.

12
¶ 26 Accordingly, we conclude that Acosta’s conflicting trial

testimony does not create an error so obvious and substantial that

it so undermined the trial’s fundamental fairness as to cast serious

doubt on the reliability of Petrie’s conviction. Hagos v. People, 2012

CO 63, ¶ 14 (outlining the plain error standard).

B. Expert Testimony

¶ 27 Petrie argues that Coster’s testimony violated CRE 702 and

the trial court’s pretrial rulings and invaded the province of the

jury. We disagree.

1. Additional Applicable Facts

¶ 28 The prosecution filed a notice to endorse Coster as an expert

in drug enterprise and distribution. Coster provided an opinion

letter indicating that the amount of methamphetamine in this case,

which was more than ten grams, “exceeded personal use.” Petrie

filed a pretrial motion challenging Coster’s proposed testimony and

requested an evidentiary hearing to determine the admissibility of

Coster’s expert testimony under CRE 702 and 403. The trial court

held an evidentiary hearing to address Coster’s proposed testimony.

¶ 29 At the hearing, the court limited Coster’s testimony to matters

consistent with drug distribution as follows:

13
[A]ssuming that . . . the issue is primarily with
respect to testimony that goes towards specific
intent, obviously I think, and the prosecution
agrees, that the expert would not be able to go
towards specific intent, but could testify that
the information is consistent with distribution.
I think the same goes for if there was — if
there was a presence of any baggies, they
could say it was consistent with and not
necessarily intent.

The court also noted that the parties could address the issue

further on the morning of trial, but they did not.

¶ 30 At trial, Petrie did not object to Coster being qualified as an

expert in drug enterprise and distribution. During direct

examination, Coster testified as follows:

Q. In your experience, would you generally
expect someone who is just using to have
empty or unused baggies in their possession?

A. No. Usually, the individuals we find with
personal use or users only, they will have
empty baggies but they have residue in them.
If they’re clean, it’s for repackaging and resale.

Q. Let’s talk about the amount for
methamphetamine. I know this can probably
vary. Generally, what is a personal use
amount or what would you consider a personal
use amount?

A. The national standard that most
investigators utilize at the state and federal
level — a tenth of a gram is considered a

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personal dose or one use. You get ten uses out
of one gram roughly. That can vary based on
the individual’s tolerance to the drug.

Q. What about fentanyl?

A. That’s a newer topic. Currently, the DEA
will get a lot of our education from [one] in
[five] pills. They consider it the kill pill.
Usually for personal use that we see, truly if
they’re only using, they’ll buy [three] to [five]
pills at a time.

Q. Is it common for someone who is just using
to carry more than that?

A. Not usually. It’s an addictive substance.
Somebody that has larger amounts or
quantities of any drug at that point can’t help
themselves if they had it in bulk.

Q. What about the presence of a scale?

A. That’s indicative of distribution. Rarely do
you see users with a scale.

Q. Why?

A. Their stuff is prepackaged and comes to
them. Dealers don’t like to short change their
customers because it creates bad business. At
the end of the day, it’s about the money.
Usually, you only see scales at the dealer level.

Q. What about the presence of cash?

A. Cash is indicative of distribution, larger
quantities obviously. A lot of the true users
scrape by with a lot of your other crimes

15
associated with drug use. Your burglaries and
thefts come[] from a user level. They’re trying
to find enough money to get the next hit.

....

Q. I want to have you look at all those items
and can you tell me — considering all those
items together, are those items consistent with
distribution?

A. I would say yes.

Q. Why are they consistent with distribution?

A. Based on the totality of everything, you have
higher quantities of multiple narcotics. You
have unused bags. You have a digital scale to
weigh. Seeing all these things together means
someone is distributing.

Defense counsel did not object to any part of Coster’s testimony.

¶ 31 Petrie now contends that it was improper for Coster to testify

that the evidence in this case “meant someone is distributing”

because that was a question for the jury. Petrie also claims that

Coster’s testimony with respect to the “baggies,” the amount of

fentanyl a user would possess, and the amount of a single use of

methamphetamine being “a tenth of a gram” all violated the trial

court’s pretrial ruling limiting Coster’s testimony.

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2. Preservation

¶ 32 A pretrial motion may preserve an evidentiary objection for

appellate review if the moving party fairly presents the issue to the

court and the court issues a definitive ruling. See CRE 103(a);

People v. Dinapoli, 2015 COA 9, ¶ 20. The principle that a definitive

pretrial ruling preserves an evidentiary issue for appeal is intuitive

when the parties follow the court’s pretrial order; but when a party

violates the court’s pretrial order, common sense militates in favor

of requiring a contemporaneous objection. Dinapoli, ¶¶ 21-22.

Such an objection alerts the trial court to both the violation of the

pretrial order and to the objecting party’s argument against the

other party’s action. Martinez v. People, 244 P.3d 135, 139-40

(Colo. 2010). Accordingly, “when an opponent acts contrary to a

pretrial order, a party must contemporaneously object to preserve

an appellate argument that the court should have prohibited the

action.” Dinapoli, ¶ 24.

¶ 33 That did not happen here. During trial, Petrie’s counsel had

the opportunity to object to Coster’s qualification as an expert but

declined to do so. Likewise, Petrie’s counsel failed to object to

Coster’s testimony concerning narcotics repackaging and resale, the

17
national standard for a single use of methamphetamine, and the

personal use amount for fentanyl. Because counsel failed to object,

Petrie’s claims are unpreserved.

3. Standard of Review and Applicable Law

¶ 34 We review unpreserved claims for plain error. People v. Miller,

113 P.3d 743, 748-50 (Colo. 2005). Under this standard, reversal is

required if an error was “obvious and substantial.” Hagos, ¶ 14.

An error is obvious if it is so clear that a trial judge should have

been able to avoid it without benefit of objection. People v. Pollard,

2013 COA 31M, ¶ 39. Generally, an error is obvious when the

action challenged on appeal contravenes (1) a clear statutory

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

Dinapoli, ¶ 30. An error is “substantial” if it so undermined the

trial’s fundamental fairness as to cast serious doubt on the

reliability of the defendant’s conviction. Hagos, ¶ 14. A reviewing

court “must evaluate [an error] in light of the entire record below” to

determine its effect on the verdict and the trial. People v. Eppens,

979 P.2d 14, 18 (Colo. 1999).

¶ 35 CRE 702 and 403 govern the admissibility of expert testimony.

Kutzly v. People, 2019 CO 55, ¶ 10. A witness may offer expert

18
testimony if the witness has “scientific, technical, or other

specialized knowledge [that] will assist the trier of fact to

understand the evidence or to determine a fact in issue” and the

witness is “qualified as an expert” based on “knowledge, skill,

experience, training, or education.” CRE 702.

¶ 36 The expert testimony must be reliable and relevant, and its

probative value must not be substantially outweighed by any of the

countervailing considerations listed in CRE 403. Under CRE 403,

“relevant[] evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

cumulative evidence.”

¶ 37 An expert witness can’t tell the jury which result to reach or

usurp the jury’s factfinding role, but “[t]estimony in the form of an

opinion or inference” isn’t objectionable merely “because it

embraces an ultimate issue to be decided by the [fact finder].” CRE

704; People v. Baker, 2019 COA 165, ¶ 14, aff’d, 2021 CO 29.

When determining whether the expert testimony usurped the jury’s

role as a fact finder, courts consider several factors, including, but

19
not limited to, whether (1) the testimony was clarified on cross-

examination; (2) the expert’s testimony expressed an opinion of

applicable law or legal standards, thereby usurping the court’s

function; (3) a jury was properly instructed on the law and that it

was free to accept or reject the expert’s opinion; and (4) the expert

opined that the defendant committed the crime or there was a

particular likelihood that the defendant committed the crime.

People v. Rector, 248 P.3d 1196, 1203 (Colo. 2011).

4. Analysis

¶ 38 Petrie contends that it was improper for Coster to testify that

(1) the totality of evidence in this case meant “someone was

distributing” because such testimony usurped the jury’s role under

CRE 704; (2) the “baggies” were for repackaging and resale and the

cash and scale were indicative of an intent to distribute; and (3) the

“national standard” for methamphetamine and the DEA’s “personal

use” standard for fentanyl were unreliable and misled the jury. We

disagree with each contention.

¶ 39 First, Coster’s testimony did not usurp the jury’s role. Coster

did not testify that Petrie had the intent to distribute narcotics,

which was the limitation the court imposed on Coster’s testimony at

20
the pretrial hearing. Rather, Coster testified that the evidence

seized from Petrie’s car was consistent with distribution. This is

exactly the type of testimony that he was endorsed to provide as an

expert in drug distribution. Further, Coster did not opine that

Petrie committed the charged crimes — possession with intent to

manufacture or distribute controlled substances — or that there

was a likelihood that he committed the charged crimes. The jury

was able to draw its own conclusion about Petrie’s intent.

¶ 40 Likewise, defense counsel was able to cross-examine Coster.

Rather than challenging Coster’s direct testimony or asking

clarifying questions, however, defense counsel focused on Coster’s

decision not to request DNA testing on the seized evidence or to

obtain a warrant to search Petrie’s phone.

¶ 41 Additionally, the court instructed the jury that it was

not bound by the testimony of a witness who
has testified as an expert; the credibility of an
expert’s testimony is to be considered as that
of any other witness. [It] may believe all of an
expert’s testimony, part of it, or none of it.

Because Petrie had the opportunity to cross-examine Coster, Coster

did not opine that Petrie committed — or likely committed — the

crimes charged, and the court instructed the jury that it did not

21
have to believe Coster’s testimony, Coster’s testimony did not usurp

the jury’s role.

¶ 42 Second, Coster’s testimony concerning “baggies,” large

amounts of cash, and a scale did not demonstrate that Petrie had

an intent to distribute controlled substances. Rather, Coster’s

testimony concerning these items was specialized knowledge that

would help the jury understand the significance of what had been

seized and ultimately determine whether Petrie had the requisite

intent to distribute controlled substances.

¶ 43 Third, Petrie’s argument that Coster’s testimony relating to the

standards constituting “personal use” of narcotics was unreliable is

misplaced. Petrie’s concern with Coster’s “personal use” testimony

doesn’t touch on the evidence’s admissibility; instead, it relates to

“the reliability of scientific principles go[ing] to the weight of the

evidence.” People v. Campbell, 2018 COA 5, ¶ 42. Such concern is

“adequately addressed by vigorous cross-examination, presentation

of contrary evidence, and careful instruction on the burden of

proof.” Id. (citation omitted); see also CRE 705 (“The expert may in

any event be required to disclose the underlying facts or data on

cross-examination.”). Petrie elected not to cross-examine Coster on

22
the data concerning personal use. Similarly, Petrie did not present

evidence challenging the national standard for methamphetamine

or the DEA’s standard on fentanyl.

¶ 44 Accordingly, we perceive no error with the court’s decision

permitting Coster to testify on matters relating to drug distribution.

Even if Coster’s testimony was erroneously admitted under CRE

702 or 704, any error was not obvious or substantial. The

testimony did not contravene a statutory command, a well-settled

legal principle, or case law, nor did it so undermine the trial’s

fundamental fairness as to cast serious doubt on the reliability of

Petrie’s convictions.

C. Prosecutorial Misconduct

¶ 45 Petrie contends that the prosecutor’s comments during the

rebuttal phase of closing arguments violated his right to a fair trial

and require reversal. We disagree.

1. Applicable Law and Standard of Review

¶ 46 Our review of a prosecutorial misconduct claim involves a two-

step analysis. First, we determine whether the prosecutor’s

conduct was improper based on the totality of the circumstances;

second, if so, we determine whether the conduct warrants reversal

23
under the proper standard of review. Wend v. People, 235 P.3d

1089, 1096 (Colo. 2010).

¶ 47 Closing argument must be confined to the evidence admitted

at trial, the inferences that can reasonably and fairly be drawn from

it, and the instructions of law submitted to the jury. People v.

Rojas, 181 P.3d 1216, 1223 (Colo. App. 2008). A prosecutor may

not misstate the evidence, use arguments calculated to inflame the

passions and prejudices of the jury, denigrate defense counsel, or

assert a personal opinion as to the defendant’s guilt or the

witnesses’ credibility. People v. Gladney, 250 P.3d 762, 769 (Colo.

App. 2010).

¶ 48 We evaluate claims of improper argument in the context of the

argument as a whole and by considering the evidence before the

jury. People v. Conyac, 2014 COA 8M, ¶ 132. During closing

arguments, “prosecutors have wide latitude in the language and

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

31 (quoting People v. McMinn, 2013 COA 94, ¶ 60). Additionally,

“because arguments delivered in the heat of trial are not always

perfectly scripted, reviewing courts accord prosecutors the benefit of

24
the doubt when their remarks are ambiguous or simply inartful.”

People v. Samson, 2012 COA 167, ¶ 30.

¶ 49 To determine whether a closing argument was improper, we

consider the language used, the statements’ context, the strength of

the evidence, and whether the prosecutor repeated the misconduct.

People v. Lovato, 2014 COA 113, ¶ 64. Defense counsel’s failure to

object is also a factor that we may consider, as it may “demonstrate

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

appearance in a cold record, was not overly damaging.” Id. at ¶ 65

(quoting People v. Wallace, 97 P.3d 262, 269 (Colo. App. 2004)).

¶ 50 If defense counsel objected at trial, we review prosecutorial

misconduct under the harmless error standard. Wend, 235 P.3d at

1097. If there was no contemporaneous objection to the statement,

a plain error standard of review applies. Id. Petrie did not object to

the prosecutor’s closing statements, so we review for plain error.

2. Analysis

¶ 51 Petrie contends that during the rebuttal phase of closing

arguments, the prosecutor made repetitive comments about Petrie’s

constitutional rights, denigrated the defense, used inflammatory

remarks that appealed to the jury’s passions and community

25
values, expressed personal opinions on Petrie’s guilt, and misstated

the reasonable doubt standard. While we acknowledge that some of

the challenged statements were inartful, none rise to the level of

misconduct.

¶ 52 First, Petrie claims that the prosecutor improperly commented

on his constitutional rights. He argues that even though probable

cause and warrants were not at issue, the prosecutor implicated the

Fourth Amendment by stating that

[t]he defendant has rights to searches and
seizures. You can’t just take someone’s phone
and search it for the same reason we can’t just
walk through his front door. You need a
warrant. To get a warrant, you need probable
cause that that item contains evidence of a
crime, not that it’s on a criminal, not that
somebody’s dealing drugs and it could contain
correspondence or text messages about selling
drugs. It has evidence of a crime on it. The
defense knows this. We know this. The
defense is hoping you don’t. What do they do?
They ask the questions about why didn’t we
search his phone to try to get the [thirteen] of
you [jurors] to think, why didn’t they? The
defendant has rights.

According to Petrie, this argument was impermissible because the

prosecutor speculated that Petrie wouldn’t have consented to a

search of his phone and the jury could infer that Petrie had

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something to hide. Similarly, Petrie claims that the prosecution’s

comments on Petrie’s “compulsion to explain where the money

came from” improperly touched on his Fifth Amendment rights:

Acosta knows the defendant has rights under
Miranda. He has Fifth Amendment rights. He
can’t ask him any questions unless Mr. Petrie
waives that privilege. Deputy Acosta knows he
can’t ask any questions.

Petrie claims that the prosecutor insinuated Petrie exercised his

right to remain silent and refused to waive his Miranda rights.

¶ 53 We disagree with Petrie’s contention that these statements

prejudiced his Fourth or Fifth Amendment rights. The prosecutor

was responding to the defense’s closing argument that the People’s

investigation was inadequate because they did not bother to search

Petrie’s phone for evidence of drug distribution. The prosecutor

never speculated that Petrie would not consent to a search of his

phone, he simply explained that to search a person’s phone, “you

would need a warrant” and to obtain a warrant, “you need probable

cause that the item contains evidence of a crime.” Likewise, the

prosecution mentioned the Fifth Amendment to explain why Acosta

did not ask Petrie follow-up questions after Petrie indicated that the

money was to pay his mortgage.

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¶ 54 Next, Petrie argues that the prosecutor denigrated defense

counsel and the defense’s theory of the case when the prosecutor

made the following statements:

[Defense counsel] said if you’re going back and
deliberating and you have a hesitation, that
means you have to find the defendant not
guilty. That’s not true. That’s not how the
criminal justice system works. You’re meant
to go back there and have a fair and rational
consideration of all of the evidence. Determine
if there’s a reasonable doubt. There’s going to
be hesitations. You’re going to have
conversations or arguments. What we’re
talking about is it’s [the prosecution’s] burden
to prove each of the elements of both charges
beyond a reasonable doubt.

....

What is a reasonable objective analysis?
There’s no lawyer tricks or skirting the
evidence to color it in a certain way. . . . We
know the defendant knew the drugs were
there.

According to Petrie, such statements framed defense counsel as

“deceptive, unethical, and manipulative” and were designed to

“incite bias in reasonable jurors.” We aren’t persuaded.

¶ 55 Upon review of the trial transcript, the prosecutor was

responding to defense counsel’s discussion on reasonable doubt

and her comment that if any juror had “one hesitation, just one,

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you need to find Mr. Petrie not guilty.” The prosecutor simply

questioned the defense’s theory, which was that Petrie did not know

the drugs were there because they belonged to the passenger.

Prosecutors may “suggest to the jury that [the] defendant’s

theory . . . was so unlikely as to strain credibility.” People v. Collins,

250 P.3d 668, 678 (Colo. App. 2010). We perceive no misconduct

with the prosecution’s discussion of the defense’s theory during

closing arguments.

¶ 56 Petrie also claims that the prosecutor engaged in misconduct

when he made the following statements which served no purpose

but to inflame the jury’s passions and prejudices:

If all that was done and every resource was put
towards this case and we ignored all the
murders and the rapes and we told [Colorado
Bureau of Investigation] to take their analysts,
where they had less than ten, to help with the
state of Colorado and focus on this case and
the defendant’s DNA shows up on those drugs,
okay.

The prosecutor’s comments responded to defense counsel’s

criticism of the investigation, which lacked DNA analysis and

fingerprint evidence. While the prosecutor’s statements were

inartful, they weren’t improper.

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¶ 57 Next, Petrie contends that the prosecutor’s statement, “We

have the right guy. He’s guilty,” undermined Petrie’s right to an

impartial jury and the presumption of innocence. While

questionable, the statement was not an expression of the

prosecutor’s personal beliefs of Petrie’s guilt. See People v. Mason,

643 P.2d 745, 752 (Colo. 1982) (prosecutors may not express

personal beliefs as to a defendant’s guilt). Rather, the statement

was made in response to defense counsel’s closing statement that

the government failed to adequately do its job and the suggestion

that had more resources been allocated to the case, the government

may have been wrong. The statement did not (1) convey the

impression that the prosecutor knew of evidence, not presented to

the jury, supporting the charges against Petrie; or (2) induce the

jury to trust the prosecutor’s judgment rather than its own view of

the evidence. See People v. Herold, 2024 COA 53, ¶ 89 (listing

dangers posed by a prosecutor’s expression of personal belief).

¶ 58 Finally, Petrie contends that the prosecution improperly

misstated the law when addressing reasonable doubt. We are

similarly unpersuaded. The prosecution’s discussion of reasonable

doubt appropriately responded to the defense’s closing argument

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that explained the high standard of reasonable doubt and Petrie’s

presumption of innocence. The prosecutor’s rebuttal closing

arguments focused on the government’s burden of proof and the

deliberations the jury would engage in before reaching a decision.

Further, the prosecution’s rebuttal mirrored the defense’s own

language of having “one hesitation”; therefore, we discern no

misconduct. See People v. Ray, 2025 CO 42M, ¶ 150 (concluding

that the prosecution’s comments weren’t improper when they

mirrored defense counsel’s own words and were in response to

defense counsel’s argument). Finally, the court provided its own

instruction defining reasonable doubt as

a doubt based upon reason and common sense
which arises from a fair and rational
consideration of all of the evidence, or the lack
of evidence, in the case. It is a doubt which is
not vague, speculative or imaginary doubt, but
such a doubt as would cause reasonable
people to hesitate to act in matters of
importance to themselves.

Thus, even if the jury had any lingering prejudice, it was cured by

the court’s instruction. See People v. Meils, 2019 COA 180, ¶ 24

(Generally, “a curative instruction will remedy any prejudice caused

by an improper argument.”).

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D. Cumulative Error

¶ 59 Petrie argues that the cumulative effect of the errors

throughout his case deprived him of a fair trial. We disagree and

decline to conduct a cumulative error analysis because we conclude

that the trial court did not commit any of the errors Petrie asserted.

See Conyac, ¶ 152 (“The doctrine of cumulative error requires that

numerous errors be committed, not merely alleged.”).

III. Disposition

¶ 60 The judgment of conviction is affirmed.

JUDGE FOX and JUDGE HAWTHORNE concur.

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