Peo v. Plascencia

23CA0766 Peo v Plascencia 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0766
Weld County District Court No. 17CR1150
Honorable Allison J. Esser, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Damaige Dominic Plascencia,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE LIPINSKY
Dunn and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 31, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Damaige Dominic Plascencia appeals his conviction on one

count of sexual assault (submission against will), one count of

second degree kidnapping, and one count of second degree

burglary. We affirm.

I. Background

¶2 A jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 In 2016, the victim lived in an apartment with her daughter

J.D. and her grandson, who is J.D. and Plascencia’s son. For most

of 2016, Plascencia also lived in the apartment.

¶4 That fall, Plascencia moved out of the apartment and returned

his apartment key to J.D. But the key was the type that could

easily be copied at “any hardware store.”

¶5 On the night of the assault, the victim was taking a shower

when the apartment lights went out. She stepped out of the

shower, wrapped herself in a towel, and found her way to her

bedroom to look for her phone. After the victim took two or three

steps into her bedroom, a man grabbed her.

¶6 As the victim screamed and struggled to free herself, the man

repeatedly said, “Shh, shh.” Although the man said nothing else

1
during the incident, the victim said she thought she recognized

Plascencia’s voice when he said, “Shh, shh.” The man moved the

victim to J.D.’s bedroom. Once inside J.D.’s bedroom, the man held

the victim against the bed and penetrated her vagina with his penis.

¶7 The man left the apartment following the assault. After he left,

the victim walked to the kitchen and found the apartment fuse box

open. It had been closed earlier that night. The lights turned back

on when the victim flipped the switches in the fuse box. There was

no sign of forced entry into the apartment.

¶8 The victim called the police to report the assault. She

described to the officers the “build and size” of her attacker, which

were similar to those of Plascencia.

¶9 After the victim called the police to report the assault, officers

took her to a hospital, where a sexual assault nurse examiner

(SANE) examined her. The SANE collected DNA swabs from the

victim to complete a sexual assault kit.

¶ 10 Yvonne Woods, a state crime lab analyst, tested the swabs and

found male DNA. She compared that male DNA to Plascencia’s

DNA, which Detective Shawn Holmes had obtained from a buccal

swab taken from Plascencia during an interview at a police station.

2
¶ 11 The male DNA collected from the victim matched Plascencia’s

patrilineal DNA, meaning that “Plascencia and all of his paternal

male relatives [were] not excluded as potential donors” to the DNA

found on the victim. In addition, Woods testified that a mixed DNA

profile taken from one of the swabs was thirty-four times more

likely to be comprised of DNA of the victim and Plascencia than

DNA of the victim and an unknown person. Woods said that this

finding provided “limited support to the proposition that [Plascencia

was] included as a donor” to the mixed DNA profile.

¶ 12 The police arrested Plascencia shortly after receiving the DNA

test results. Detective Holmes told J.D. about the DNA results

before Plascencia’s arrest. Shortly thereafter, Plascencia’s mother

called J.D. to encourage her to tell the police that the victim and

Plascencia “were sleeping together,” which J.D. did not do.

¶ 13 At trial, defense counsel challenged the victim’s credibility and

the DNA evidence, but counsel did not ask the trial court to

suppress such evidence.

¶ 14 The jury convicted Plascencia of sexual assault (submission

against will), second degree kidnapping, and second degree

3
burglary. The court sentenced Plascencia to ten years to life in the

custody of the Department of Corrections.

¶ 15 On appeal, Plascencia contends that the court plainly erred by

(1) admitting evidence of the DNA obtained from the buccal swab

because Detective Holmes allegedly coerced Plascencia into

consenting to the swab, and (2) permitting the prosecutor to

misstate the law during closing argument. We disagree.

II. Analysis

A. The Court Did Not Plainly Err by Not Ruling
Sua Sponte that the DNA Evidence Was Inadmissible

1. Standard of Review

¶ 16 “[W]e defer to the trial court’s findings of fact when they are

supported by the record but review its legal conclusions de novo.”

People v. Alemayehu, 2021 COA 69, ¶ 24, 494 P.3d 98, 104.

¶ 17 The parties agree that Plascencia did not preserve his

contention that he had not voluntarily consented to the buccal

swab. We review errors that “were not preserved by objection for

plain error.” Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116,

120.

4
¶ 18 An error is plain only if it is “obvious and substantial.” Id. An

error is obvious if it is “so clear-cut” that “a trial judge should be

able to avoid it without benefit of objection.” People v. Crabtree,

2024 CO 40M, ¶ 42, 550 P.3d 656, 667 (quoting Romero v. People,

2017 CO 37, ¶ 6, 393 P.3d 973, 976). The defendant bears the

burden to establish that an error occurred and that it was obvious

and substantial. See Kaufman v. People, 202 P.3d 542, 549 (Colo.

2009).

¶ 19 “At best, plain error is strong medicine.” People v. Ujaama,

2012 COA 36, ¶ 40, 302 P.3d 296, 304 (quoting United States v.

Simmonds, 931 F.2d 685, 687 (10th Cir. 1991)). “It should provide

a basis for relief only on rare occasions” because “it is difficult to

‘fault a trial court for failing to rule on an issue that had not been

presented to it . . . .’” Id. (quoting Simmonds, 931 F.2d at 688). In

addition, “an accused should not be able to ‘withhold his objections

until completion of his trial . . . and later complain of matters

which, if he had made a timely objection, would have allowed the

trial court to take corrective action.’” Id. (quoting People v. Rollins,

892 P.2d 866, 874 n.13 (Colo. 1995)).

5
¶ 20 Under the plain error standard, “we need not decide whether

the court actually erred if it is clear that the alleged error was not

obvious.” People v. Vigil, 251 P.3d 442, 447 (Colo. App. 2010).

2. Additional Facts

¶ 21 Detective Holmes attempted to contact Plascencia the day after

the assault. He left a voice message on Plascencia’s phone in which

he identified himself, told Plascencia that he needed to speak with

him, and asked Plascencia to give him “a call back.” Detective

Holmes did not say that Plascencia was required to meet with him.

Plascencia did not call Detective Holmes back.

¶ 22 When Detective Holmes learned that the biological evidence

obtained from the SANE examination indicated the presence of male

DNA, Detective Holmes arranged an interview with Plascencia at a

police station. Plascencia voluntarily appeared at the police station,

accompanied by his father. Detective Holmes escorted Plascencia to

an interview room and told him that he was “free to leave at any

time.” A video camera recorded Plascencia’s interview.

¶ 23 Detective Holmes asked Plascencia where he worked, and

requested his mother’s name, her contact information, and his

6
social security number. Plascencia refused to answer these basic

questions.

¶ 24 Detective Holmes asked Plascencia if he knew why he was at

the police station. Plascencia said it was because the victim “got

attacked.” Plascencia told Detective Holmes that he was conducting

his own investigation into the attack. But he said that, through his

investigation, he had only learned that, on the night of the assault,

“someone tried to break into one of [his] other buddy’s house[s].”

Plascencia would not disclose the names of his “other buddy” or the

individuals with whom Plascencia said he discussed the attack on

the victim.

¶ 25 Detective Holmes took a break in the interview after about

thirty-five minutes. After Detective Holmes left the room, Detective

Brian Hunziker, who worked for a different law enforcement agency,

entered. Detective Hunziker asked Plascencia about an unrelated

sexual assault and noted that DNA evidence linked Plascencia to

that assault. At the beginning of Detective Hunziker’s interview

with Plascencia, Detective Hunziker reminded Plascencia that the

interview room door was “not locked” and said he could “leave at

any time.”

7
¶ 26 During Detective Hunziker’s interview with Plascencia, which

lasted about fifteen minutes, Plascencia asked if he could use the

restroom, and Detective Hunziker said he could do so. Plascencia

left the interview room to use the restroom and then returned.

¶ 27 When Plascencia returned, he said that he wanted to leave the

police station. Detective Hunziker responded that Plascencia could

not leave yet because Detective Holmes still had a question for him.

¶ 28 When Detective Holmes returned to the interview room, he

said that the victim’s case had “nothing to do with [Detective

Hunziker’s] case.” But he noted that, as in Detective Hunziker’s

case, there was “some DNA evidence in [the victim’s] case.” For that

reason, he asked whether Plascencia would “mind if [Detective

Holmes] took” a buccal swab. Detective Holmes explained it was a

Q-tip that he would use to swab the inside of Plascencia’s cheek to

obtain a DNA sample “to make sure that [Plascencia’s] DNA d[id]

not match” the DNA collected from the victim. Plascencia asked,

“What DNA?”

¶ 29 After Detective Holmes further explained the process of

collecting Plascencia’s DNA, Plascencia said, “You can’t put nothing

in my mouth.” Detective Holmes again asked Plascencia whether

8
he would be “willing to submit to giving” a buccal swab. Plascencia

responded, “I’m not going to submit to nothing.”

¶ 30 When Detective Holmes stepped back into the doorway of the

interview room, Plascencia asked again if he could leave. Detective

Hunziker, who had been standing in the room, then told Plascencia

he was “under arrest” in the case that Detective Hunziker was

investigating.

¶ 31 While Detective Hunziker prepared to arrest Plascencia,

Detective Holmes again asked Plascencia if he would provide a DNA

sample “just to rule [him] out” as a “suspect” in the victim’s case.

Detective Holmes reiterated that Plascencia’s decision to provide the

sample was “entirely voluntary.” Plascencia asked, “What’s a

suspect?” Detective Holmes explained it was “somebody that may

or may not have committed a crime.” Plascencia said, “Well, I

didn’t.”

¶ 32 Detective Holmes repeated that Plascencia could prove he did

not attack the victim by providing a DNA sample. Plascencia

responded, “You can go ahead.” Detective Holmes sought to

confirm that “I can go ahead, what? I can go ahead and take a

sample?” Plascencia asked why Detective Holmes needed a sample

9
of his DNA, and Detective Holmes again explained that it could rule

Plascencia out as a suspect in the victim’s case. Plascencia said,

“No, I don’t want you to do that.”

¶ 33 After Detective Hunziker provided Plascencia with additional

information regarding his arrest and transportation to jail, Detective

Holmes asked, “So I’m clear, you don’t want to give me your DNA.

Is that right?” Plascencia said, “You don’t need it, dude.” Detective

Holmes again explained that the fastest way to rule Plascencia out

as a suspect in the victim’s case would be for Plascencia to provide

a DNA sample.

¶ 34 Plascencia then asked what would happen if he declined to

provide a DNA sample. Detective Holmes responded, “Then I go to

the judge, and I get a warrant, and then I come swab your cheek.”

Plascencia replied, “Swab it. My cheek. Do whatever.” At that

point, Detective Holmes conducted the buccal swab.

¶ 35 Plascencia filed a pretrial motion to suppress statements that

he made during the interview. He did not seek to suppress the DNA

evidence obtained through the buccal swab, however. Even though

Plascencia did not ask the court to exclude that evidence, in its

10
ruling on the motion to suppress, the court found that Plascencia

had “agreed to take” the buccal swab.

3. It Was Not Obvious that Plascencia
May Not Have Voluntarily Consented to the Buccal Swab

¶ 36 Plascencia contends that the trial court plainly erred by failing

to suppress the DNA evidence, without a request from defense

counsel, because Plascencia allegedly did not voluntarily consent to

the swab. We disagree.

¶ 37 Because Plascencia did not ask the court to suppress the DNA

evidence, we review for plain error. See Crabtree, ¶ 3, 550 P.3d at

660. Thus, we consider whether the court’s alleged error in not

suppressing the DNA evidence obtained through the buccal swab

was obvious — whether it was “so clear-cut” that the “trial judge

should [have been] able to avoid it without benefit of objection.” Id.

at ¶ 42, 550 P.3d at 667 (quoting Romero, ¶ 6, 393 P.3d at 976).

¶ 38 The Fourth Amendment protects the “right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

“‘[U]sing a buccal swab on the inner tissues of a person’s cheek in

order to obtain DNA samples is a search’ for purposes of the Fourth

11
Amendment.” Casillas v. People, 2018 CO 78M, ¶ 16, 427 P.3d

804, 809 (quoting Maryland v. King, 569 U.S. 435, 446 (2013)).

¶ 39 “‘Warrantless searches are presumptively unreasonable,’ and

thus unconstitutional, unless an exception to the warrant

requirement exists.” People v. McKnight, 2019 CO 36, ¶ 23, 446

P.3d 397, 402 (quoting United States v. Karo, 468 U.S. 705, 717

(1984)). One of those exceptions is consent — “A warrantless

search may be justified and is constitutionally permissible when a

citizen consents to the search.” People v. Ganaway, 2025 CO 25,

¶ 37, 568 P.3d 780, 789 (quoting People v. Mendoza-Balderama,

981 P.2d 150, 156 (Colo. 1999)).

¶ 40 “Consent can be express or ‘implied through words, actions, or

both.’” Id. (quoting People v. Berdahl, 2019 CO 29, ¶ 22, 440 P.3d

437, 442). “Involuntary consent is invalid.” Id. at ¶ 38, 568 P.3d at

789. “Voluntary consent requires ‘essentially free and

unconstrained choice by its maker.’” Id. (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)). In contrast, involuntary

consent is “coerced by threats or force, or granted only in

submission to a claim of lawful authority.” Id. (quoting Schneckloth,

412 U.S. at 233).

12
¶ 41 “To assess whether a person’s consent was voluntary, courts

must apply an objective test that takes into account the totality of

the circumstances and determines whether the defendant could

reasonably have construed the police conduct to be coercive.”

Berdahl, ¶ 23, 440 P.3d at 442. When making findings under the

objective test, courts must consider “whether, under the totality of

the circumstances, the police’s conduct overbore the defendant’s

exercise of free will because it was sufficiently coercive or deceptive

to a person with his characteristics in his circumstances.” People v.

Munoz-Gutierrez, 2015 CO 9, ¶ 24, 342 P.3d 439, 445.

¶ 42 Thus, in evaluating the totality of the circumstances, courts

consider the following: “the defendant’s age, education, and

intelligence; the duration, location, and circumstances of the

search; the defendant’s state of mind; and any other factors that

could have affected the defendant’s free and unconstrained choice

in consenting to the search.” Ganaway, ¶ 39, 568 P.3d at 789-90

(quoting Berdahl, ¶ 23, 440 P.3d at 442). “The voluntariness of

consent to search is a factual question . . . .” United States v.

Contreras, 149 F.4th 349, 374 (4th Cir. 2025) (quoting United

States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996)).

13
¶ 43 For six reasons, we conclude that it was not obvious to the

trial court that Plascencia may not have voluntarily consented to

the buccal swab.

¶ 44 First, the video recording of the interview indicates that

Plascencia “knew he had a choice” not to consent to the buccal

swab. People v. Chavez-Barragan, 2016 CO 66, ¶ 38, 379 P.3d 330,

339. Detective Holmes twice told Plascencia that his decision to

provide a DNA sample through a buccal swab was “entirely

voluntary.”

¶ 45 Second, contrary to Plascencia’s assertion, the detectives did

not wear Plascencia down. See id. As Plascencia concedes, less

than ten minutes elapsed between when Detective Holmes first

asked him whether he would submit to a buccal swab and when

Plascencia gave his consent. And while Detective Holmes

repeatedly asked for Plascencia’s consent, Plascencia’s vague and

inconsistent responses necessitated Detective Holmes’s follow-up

questions.

¶ 46 Third, there was no language barrier between Plascencia and

Detective Holmes. See id.

14
¶ 47 Fourth, only two officers — Detective Holmes and Detective

Hunziker — were present at the interview. Neither drew a weapon

in Plascencia’s presence. See People v. Dotson, 55 P.3d 175, 179-80

(Colo. App. 2002). Moreover, the trial court found that the

interview’s tone was “conversational” and not “threatening” or

“demanding”; “[v]oices weren’t raised”; “[a]t one point [Plascencia]

needed to use the restroom, and he was allowed to do that”; and

Plascencia was not handcuffed. The video recording of the interview

supports the court’s findings, and we must give deference to them.

See Alemayehu, ¶ 24, 494 P.3d at 104.

¶ 48 Although it was arguably coercive for Detective Holmes to

obtain Plascencia’s consent to submit to the buccal swab only after

Detective Hunziker told Plascencia that he was not free to leave, we

cannot say that any error in not suppressing the DNA evidence was

obvious under the circumstances, particularly given the fact-based

nature of the test for consent.

¶ 49 Fifth, the detectives did not make affirmative

misrepresentations to Plascencia. See Turbyne v. People, 151 P.3d

563, 572 (Colo. 2007). Plascencia contends that, contrary to

Detective Holmes’s assertion that he would obtain a search warrant

15
to obtain a buccal swab, a court would not have granted a Crim. P.

41.1 order for a compelled buccal swab because, at the time of the

interview, the only evidence linking Plascencia to the attack was his

relationship with J.D. and his prior residence in the victim’s

apartment.

¶ 50 A Crim. P. 41.1 order for nontestimonial evidence, such as

DNA evidence, requires a showing of “reasonable grounds, not

amounting to probable cause to arrest, to suspect that the person

named . . . committed the offense.” Crim. P. 41.1(c)(2). In light of

the evidence linking Plascencia to the assault, including the victim’s

statements, Plascencia’s one-time possession of a key to the

apartment, and the lack of evidence of forced entry to the

apartment on the night of the assault, we cannot say that the court

should have sua sponte concluded that, at the time of the interview

in the police station, Detective Holmes did not possess reasonable

grounds to suspect that Plascencia was the attacker.

¶ 51 Sixth, as noted above, the trial court found that Plascencia

“agreed to take” the buccal swab at the police department.

¶ 52 Accordingly, we conclude that, under the totality of the

circumstances, see Munoz-Gutierrez, ¶ 24, 342 P.3d at 445, it was

16
not obvious to the trial court that Detective Holmes may have

coerced Plascencia into consenting to the buccal swab, see

Crabtree, ¶ 42, 550 P.3d at 667.

¶ 53 Nonetheless, Plascencia contends that, for two reasons, it was

obvious to the trial court that he did not voluntarily agree to the

buccal swab. We disagree.

¶ 54 First, we reject Plascencia’s contention that it was obvious he

did not voluntarily consent to the buccal swab because he appeared

at the police station for the interview only after “Detective Holmes

had called [him] numerous times.” See Ganaway, ¶ 39, 568 P.3d at

789-90. The number of times that Detective Holmes attempted to

contact Plascencia by telephone does not establish coercion. See

People v. Munoz-Diaz, 2023 COA 105, ¶ 17, 543 P.3d 402, 407

(noting that contacting a defendant by phone “ma[kes] it easier for

[the defendant] to disengage and feel unthreatened”). He relatedly

argues that it is “unclear whether [Detective Holmes] told Plascencia

he was required” to submit to questions at the police station based

on Detective Holmes’s testimony that he did not tell Plascencia he

“had to come in [for the interview] and speak to” Detective Holmes.

17
¶ 55 But this alleged lack of clarity undercuts Plascencia’s

obviousness argument. At most, the evidence was contradictory as

to whether Plascencia believed he had no choice but to speak with

Detective Holmes. Detective Holmes’s contrary testimony that he

did not make any threats or promises to Plascencia to persuade him

to participate in the interview could not make it obvious to the trial

court that Plascencia did not consent to the buccal swab.

¶ 56 Second, Plascencia asserts that he was “a young adult with

limited education and intellectual ability and was thus more

susceptible to police coercion.” But even if this statement is

accurate, Plascencia never argued at the suppression hearing that

the court should exclude the DNA evidence obtained from the

buccal swab. Under the circumstances, the court lacked a factual

basis for considering whether Plascencia was “more susceptible to

police coercion” because of his “limited education and intellectual

ability.”

¶ 57 Moreover, the information regarding Plascencia’s “limited

education and intellectual ability” derived from a competency

evaluation performed months after the suppression hearing and a

post-trial offense-specific evaluation contained in the adult sex

18
offender presentence report. Significantly, neither the evaluation

nor the report said that Plascencia was susceptible to coercion. So

even if the report and evaluation were available to the court before

the suppression hearing, they would not have made it obvious to

the trial court that Plascencia involuntarily consented to the buccal

swab because he was susceptible to coercion — or for any other

reason.

¶ 58 Accordingly, we hold that the court did not plainly err by not

sua sponte suppressing the DNA evidence obtained from the buccal

swab.

B. The Court Did Not Plainly Err by Allowing
the Prosecutor’s Closing Argument

1. Standard of Review

¶ 59 “In a claim of prosecutorial misconduct, the reviewing court

engages in a two-step analysis.” Wend v. People, 235 P.3d 1089,

1096 (Colo. 2010).

¶ 60 First, we “must determine whether the prosecutor’s

questionable conduct was improper based on the totality of the

circumstances.” Id. And “[w]e must evaluate claims of improper

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

19
the evidence before the jury.” People v. Samson, 2012 COA 167,

¶ 30, 302 P.3d 311, 316.

¶ 61 Second, we must determine “whether [the prosecutor’s

improper] actions warrant reversal according to the proper standard

of review.” Wend, 235 P.3d at 1096.

¶ 62 The parties agree that Plascencia did not preserve his

prosecutorial misconduct argument. For this reason, “we apply a

plain error standard of review.” Id. at 1097. Under this standard,

the defendant bears the burden to establish that an error occurred

and that it was obvious and substantial. See Kaufman, 202 P.3d at

549.

¶ 63 “In the context of plain error review of prosecutorial

misconduct, we will only reverse when the misconduct was

‘flagrantly, glaringly, or tremendously improper.’” People v.

Robinson, 2019 CO 102, ¶ 19, 454 P.3d 229, 233 (quoting

Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005)).

“Defense counsel’s failure to object is a factor that may be

considered in examining the impact of a prosecutor’s argument and

may ‘demonstrate defense counsel’s belief that the live argument,

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

20
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (quoting

People v. Rodriguez, 794 P.2d 965, 972 (Colo. 1990)), overruled on

other grounds by, People v. Kennedy, 2025 CO 63, ¶ 22 & n.2, ___

P.3d ___, ___. In addition, “[p]rosecutorial misconduct in closing

argument rarely constitutes plain error.” Id. at 1152-53.

2. Additional Facts

¶ 64 Defense counsel attacked the victim’s credibility from the

inception of the trial. Defense counsel began her opening statement

by saying the victim was “trying to tie” Plascencia to the assault

because of “animosity” between them. According to defense

counsel, the animosity arose from the end of Plascencia’s

relationship with J.D. and “difficulty . . . over custody” of J.D. and

Plascencia’s son. In addition, defense counsel said in her opening

that the victim’s statements “don’t make a lot of sense” and seem to

be “reaching.”

¶ 65 The prosecutor began her closing argument by defending the

victim’s credibility: “[I]f you believed [the victim], then [Plascencia] is

guilty.” The prosecutor explained that the jury must focus on the

evidence: “If you believe [the victim] and if you believe that we’ve got

the right person . . . , he’s been correctly charged, and the law is

21
violated.” Further, the prosecutor said, “[This is] a case about the

facts. What do you believe happened? If you believe [the victim]

was the victim of a sexual assault in her home, then he is guilty

because the evidence points to one place and one place only” —

Plascencia.

¶ 66 Next, the prosecutor outlined the evidence that she said

established Plascencia’s guilt, including the DNA test results and

Plascencia’s mother’s statement to J.D. that she should tell the

police that the victim and Plascencia “were sleeping together.” The

prosecutor ended her closing argument by returning to the victim’s

credibility: “Ladies and gentlemen, if you believe [the victim] that

this happened — and there’s no reason not to, and there’s a lot of

reasons to believe that it did, then [Plascencia] is guilty.”

¶ 67 Defense counsel resumed her attack on the victim’s credibility

during her closing argument, saying there was “a lot that [the

victim] doesn’t remember,” “a lot that she actually changed,” and

that the victim’s account of the incident was inconsistent.

¶ 68 The prosecutor began her rebuttal closing by saying, “This is

not a who-done-it case. This is a he-done-it case.” She then said,

“How do we know it’s [Plascencia]?” and reminded the jury of the

22
DNA evidence. At the end of her rebuttal closing, the prosecutor

reiterated, “[I]f [J.D.] and [the victim] are telling the truth, then this

is not a who-done-it case, it’s a he-done-it case.”

3. The Prosecutor Did Not Misstate the Law

¶ 69 Plascencia contends that the trial court committed reversible

error by allowing the prosecutor to misstate the law by telling the

jury that Plascencia must be guilty if it believed the victim. We

disagree.

¶ 70 “[P]rosecutors have wide latitude in the language and style

they choose to employ, as well as in replying to an argument by

opposing counsel.” Samson, ¶ 30, 302 P.3d at 317. A prosecutor

may not “misstate or misinterpret the law,” however. People v.

Marko, 2015 COA 139, ¶ 207, 434 P.3d 618, 657, aff’d on other

grounds, 2018 CO 97, 432 P.3d 607.

¶ 71 In closing argument, a prosecutor “may employ rhetorical

devices and engage in oratorical embellishment and metaphorical

nuance, so long as [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, 77 P.3d 831, 837 (Colo. App.

23
2003). Further, “because arguments delivered in the heat of trial

are not always perfectly scripted, reviewing courts accord

prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful.” Samson, ¶ 30, 302 P.3d at 317.

¶ 72 A prosecutor may not argue that a jury can only acquit the

defendant if it finds that a prosecution witness lied. People v.

Cuellar, 2023 COA 20, ¶¶ 56-68, 530 P.3d 1236, 1248-50

(concluding that the prosecutor’s assertion that, to find the

defendant not guilty of sexual assault, the jury had “to believe that

[the victim] ‘fabricated this whole entire thing, that she lied,’” was

improper). However, a prosecutor may argue in closing that a

witness is credible so long as the argument is based on reasonable

inferences drawn from the evidence. See People v. Brown, 313 P.3d

608, 617-18 (Colo. App. 2011).

¶ 73 The prosecutor did not argue that the jury could only acquit

Plascencia if it found that the victim lied. Rather, she argued that it

should find Plascencia guilty if it believed the victim. Thus, the

prosecutor’s statements materially differ from the improper

argument in Cuellar. See Cuellar, ¶ 69, 530 P.3d at 1250.

24
¶ 74 Unlike the argument in Cuellar, the prosecutor recognized

“numerous alternative explanations for evidentiary discrepancies

and conflicts that d[id] not involve [the victim] lying,” including

“differences in opinion, lapses or inaccuracies in memory,

differences in perception, a misunderstanding, or any other number

of wholly innocent explanations for discrepancies between one

witness’s testimony and another’s.” Liggett v. People, 135 P.3d 725,

731 (Colo. 2006). Therefore, the prosecutor properly focused on the

jury’s role to determine the victim’s credibility.

¶ 75 Further, the prosecutor’s statements about believing the

victim were a direct response to defense counsel’s attacks on the

victim’s credibility and suggestion that the assault never occurred.

“As [the] defendant himself opened the door on this subject, he

invited rebuttal by the prosecution and cannot now complain that

the trial court improperly permitted such comment.” People v. Saiz,

660 P.2d 2, 5 (Colo. App. 1982); see People v. Conyac, 2014 COA

8M, ¶ 133, 361 P.3d 1005, 1028 (A prosecutor “has considerable

latitude in replying to opposing counsel’s arguments.”).

¶ 76 In sum, because the prosecutor asked the jury to believe the

victim’s account and did not suggest it could only acquit Plascencia

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if it found that the victim “fabricate[d] [the] whole entire thing,”

Cuellar, ¶ 56, 530 P.3d at 1248, the prosecutor did not misstate the

law, see Wend, 235 P.3d at 1096.

¶ 77 Plascencia further argues that the prosecutor’s argument

regarding the victim’s credibility misstated the law because the

victim’s “testimony did not establish identity.” We disagree with

this assertion, as well.

¶ 78 In her closing argument, the prosecutor did not say that the

jury could convict Plascencia solely based on the victim’s testimony.

For example, the prosecutor told the jury to consider the victim’s

testimony together with the prosecution’s identity evidence: “If you

believe [the victim] and if you believe that we’ve got the right

person . . . , [then Plascencia has] been correctly charged.” In

addition, the prosecutor said, “If you believe [the victim] was the

victim of a sexual assault in her home, then [Plascencia] is guilty

because the [identity] evidence points to one place and one place

only . . . , and it points to [Plascencia].”

¶ 79 Accordingly, “in the context of the argument as a whole and in

light of the evidence before the jury,” Samson, ¶ 30, 302 P.3d at

316, the prosecutor’s argument, “[I]f you believed [the victim], then

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[Plascencia] is guilty,” did not communicate the message that the

jury should convict Plascencia based only on the victim’s testimony.

III. Disposition

¶ 80 The judgment is affirmed.

JUDGE DUNN and JUDGE KUHN concur.

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