Peo v. Hurd

23CA0007 Peo v Hurd 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0007
Arapahoe County District Court No. 20CR1796
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Keason Qwame Hurd,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE HAWTHORNE*
Pawar and Yun, JJ., concur

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

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, 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, Keason Qwame Hurd, appeals his convictions for

second-degree assault, second-degree kidnapping, felony sexual

assault, and harassment. We affirm.

I. Background

¶2 In July 2020, Hurd was in a relationship with B.R. One

evening, B.R. was asleep in Hurd’s bed when Hurd accessed her cell

phone and viewed a video of B.R. performing a consensual sexual

act with her ex-boyfriend. Hurd became angry and awakened B.R.

to confront her about the video. Hurd then hit B.R.’s mouth with

his hand.

¶3 Hoping to de-escalate the situation, B.R. ran to the bathroom.

Hurd followed her and put her in a “chokehold,” causing her to fall

to the floor. Hurd then urinated on B.R. before hitting her again

and spitting on her. Afterwards, B.R. removed her clothes and put

them in a plastic bag before getting in the shower. Hurd “stood at

the shower” waiting for her.

¶4 Hurd then drove B.R. home in his truck. When they arrived at

her house, B.R. exited the truck. She went back to retrieve her

phone and saw Hurd recording the video “that was in [her] phone . .

. onto his phone.” As she entered the truck, Hurd hit her again and

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began driving them back to his home. B.R. tried to exit the truck

while it was moving but Hurd pulled her back inside.

¶5 Upon arriving home, Hurd told B.R. that if she did not do

whatever he wanted, he would “beat” her again. He removed B.R.’s

wig and clothes and ordered her to get in the shower. He then

urinated on her again and recorded himself doing so. Hurd then

ordered B.R. to perform oral sex on him, which he continued to

record.

¶6 After B.R. showered and went into the living room, Hurd

followed her and directed her to pose in various positions while he

photographed her nude. While B.R. sat in the living room “staring

into space,” Hurd became aggravated and put her in another

chokehold. B.R. testified that she couldn’t breathe and that she

fainted from the chokehold.

¶7 When B.R. awoke, she was on the couch and found Hurd

rubbing a dirty mop over her body “as if [she] was the floor.” Hurd

told her that he was “mop[ping] the floor with these dirty bitches.”

Hurd was recording himself on his cell phone while he was

“mopping”. B.R. attempted to crawl away from Hurd and hide.

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Ultimately, she came out of hiding and fell asleep on the couch.

Hurd then drove her home the next morning.

¶8 Two days later, B.R.’s mother noticed that B.R. “wasn’t in a

good state.” B.R. asked her mother to take her to urgent care where

she was examined by a forensic nurse examiner (“FNE”) and

reported the incident to the police.

¶9 The prosecution charged Hurd with first degree assault, sexual

assault, and second degree kidnapping. Hurd’s counsel requested

that the lesser nonincluded counts of harassment and criminal

invasion of privacy be added. The trial court only allowed the

instruction on harassment.

¶ 10 A jury convicted Hurd of second degree assault –

strangulation; sexual assault, causing submission through force or

violence, threat of harm, and threat of retaliation; second degree

kidnapping and the kidnapped person being a victim of sexual

assault; and harassment. The jury also found that Hurd committed

each offense as an act of domestic violence.

¶ 11 Hurd appeals contending that the trial court reversibly erred

by failing to (1) suppress all evidence obtained from his cell phone;

(2) grant a mistrial; (3) suppress prosecutorial misconduct during

3
closing argument; and (4) instruct the jury on the lesser included

offense of invasion of privacy. He also contends that the

cumulative impact of these errors requires reversal. We disagree

and affirm the trial court’s judgment.

II. Cell Phone Warrant

¶ 12 Hurd contends that the trial court erred by denying his motion

to suppress his cell phone records because the search warrant’s

scope was overbroad and not sufficiently particular. He also

contends that the affidavit submitted with the search warrant did

not establish probable cause for the search warrant. We disagree.

A. Additional Facts

¶ 13 During the police investigation, B.R. reported that Hurd used

his cell phone to record himself urinating on her, to film her

performing oral sex on him, and to photograph her after her

shower. When Hurd was taken into custody, his cell phone was “in

his personal belongings.” The police officer’s affidavit supporting

the search warrant for Hurd’s cell phone described the events that

B.R. told officers at the hospital, where she reported the incident

with Hurd. The warrant authorized a forensic extraction of the

following from Hurd’s phone:

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• Any and all artifacts that would tend to establish

ownership and/or use of the cellular phone, including

but not limited to assigned phone number, device ID,

serial number, electronic identifying number, associated

cloud account.

• Any and all contacts contained within the cellular

phone’s native contacts list or within any downloaded

application, which would potentially contain contact

information for the victim, [B.R.] and [Hurd].

• Any and all call logs […] which would potentially identify

communication between the victim and suspect.

• Any and all [messages], including partial and deleted

messages or chats [… ] which would potentially contain

communications between victim and suspect.

• Any and all images, videos, or audio files, including

partial or deleted files […] which may depict the victim or

any sexual activity.

• Any and all device location, mapping, or GPS

information, which may assist with determining the

locations of the alleged physical and sexual assaults.

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¶ 14 Hurd filed a motion to suppress the evidence obtained from

his cell phone, relying generally on People v. Coke, 2020 CO 28, and

arguing that “the warrant application and affidavit did not establish

probable cause” and that it “was unconstitutionally lacking in

particularity.” The prosecution responded that the warrant

“particularized” the items to be seized, each supported by probable

cause as outlined in the officer’s affidavit and further limited the

scope to relevant crimes and information connecting B.R. and Hurd.

¶ 15 After a hearing, the trial court denied the motion in part and

ordered that the evidence collected from the search warrant be

further restricted to “a timeline, not as to photos and videos, but

[…] a timeline for the other items and materials from July 1 to July

13, the date of […] Hurd’s arrest.”

B. Standard of Review and Applicable Law

¶ 16 “In reviewing a suppression order, we defer to the trial court’s

findings of fact if they are supported by the record and review its

legal conclusions de novo, taking into consideration the totality of

the circumstances, to determine whether the suppression order

should be upheld or set aside.” People v. Davis, 187 P.3d 562, 563-

64 (Colo. 2008). If we determine the court erred by failing to

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suppress evidence, the error is reversible unless it was harmless

“beyond a reasonable doubt.” Niemeyer v. People, 2024 CO 58, ¶ 50

(quoting Hagos v. People, 2012 CO 63, ¶ 11).

¶ 17 The United States and Colorado Constitutions protect

individuals against “unreasonable searches and seizures.” U.S

Const. amend. IV; Colo. Const. art. II, § 7. When analyzing the

legality of a search, the touchstone is reasonableness. People v.

Davis, 2019 CO 24, ¶15. And reasonableness generally requires a

warrant. Id. at ¶ 16.

¶ 18 A lawful search warrant must describe with particularity both

“the place to be searched” and “the things to be seized.” People v.

Pacheco, 175 P.3d 91, 94 (Colo. 2006). Particularity limits the

government’s discretion in examining private information and

prohibits general exploratory rummaging. People v. Seymour, 2023

7 CO 53, ¶44. To satisfy particularity, a cell phone search warrant

must include specific limitations based on (1) the type of alleged

criminal activity; (2) the identity of the alleged victim; and (3) if

applicable, the timeframe within which the suspected crime

occurred. People v. Herrera, 2015 CO 60, ¶ 20; see also Coke, ¶ 34

(finding insufficient particularity where the warrant permitted the

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officers to search all texts, videos, pictures, contact lists, phone

records, and any data based on ownership absent a specific or

reasonable timeframe).

¶ 19 However, “a warrant doesn’t lack particularity simply because

it is broad.” Seymour, ¶46. “Likewise, a search isn’t

unconstitutional simply because the government, in some lightning-

fast, digital sense, very cursorily examines unrelated documents.”

Id. at ¶47. “Even when a warrant is adequately particularized, ‘it is

certain that some innocuous documents will be examined . . . to

determine whether they are, in fact, among those papers authorized

to be seized.’” Id. (quoting Andresen v. Maryland, 427 U.S. 463, 482

n.11(1976)).

¶ 20 The warrant’s description of the property to be seized should

permit the officer charged with executing the warrant to know with

a reasonable degree of certainty what should be seized. Coke, ¶ 34.

Given modern cell phones’ immense storage capacities and ability to

collect and store many distinct types of data in one place, courts

have recognized that cell phones “hold for many Americans ‘the

privacies of life’” and are, therefore, entitled to special protections

from searches. Id. at ¶ 37 (citation omitted). And a warrant

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authorizing the search of a cell phone simply for general indicia of

ownership violates the Fourth Amendment’s particularity

requirement. See Herrera, ¶¶ 4, 18.

C. Analysis

¶ 21 We conclude that the court did not err by denying Hurd’s

motion to suppress because the warrant was sufficiently particular.

¶ 22 Unlike in Coke, where the warrant lacked details about the

alleged victim or when the assault occurred, here the officer’s

affidavit and subsequent warrant narrowed what could be seized to

information that related to Hurd or B.R. The officer’s affidavit, in

particular, described the alleged crimes, when they were committed,

and the history between Hurd and B.R. Herrera, ¶ 20; see also

Coke, ¶ 34.

¶ 23 On appeal, Hurd relies on Coke and Herrera to suggest that

the warrant lacked particularity. But these cases are

distinguishable. The warrant in Coke authorized police to “search

all texts, videos, pictures, contact lists, phone records, and any

data that showed ownership or possession.” Coke, ¶ 38 (emphasis

added). It also allowed law enforcement to search for and seize “any

. . . fruits or proceeds of a crime, or data intended to be used in the

9
commission of a crime.” Id. at ¶ 35. The warrant in Herrera

authorized a search of the defendant’s cellphone for text messages

between the defendant and the putative child victim as well as for

“indicia of ownership.” Herrera,¶ 18. In contrast, the officers

executing Hurd’s warrant did not rely on a general search warrant

like those in Coke and Herrera. While the warrant did permit the

search of “[a]ny and all artifacts that would tend to establish

ownership and/or use of the cellular phone,” it was more limited:

only items such as “assigned phone number, device ID, serial

number, electronic identifying number, associated cloud account”

could be seized. Further, the warrant specified the types of

information to be searched (communications, images, videos, audio

files, call logs, and device locations that pertained to the alleged

crime), and narrowed what could be seized to information that

related to Hurd or B.R. Also, by incorporating the probable cause

affidavit, the warrant was restricted to evidence pertaining to Hurd’s

assault on B.R.

¶ 24 Recently, a division of this court distinguished the search

warrant before it in People v. Rodriguez-Ortiz, 2025 COA 61, 574

P.3d 1196, from the general search warrant addressed in Herrera.

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The Rodriguez-Ortiz division concluded that the Hererra warrant

authorized a search of the “entire contents” of the defendant’s

phone. People v. Herrera, 2015 CO 61, ¶ 34. But the warrant in

Rodriguez-Ortiz authorized the collection of “location data and

certain message content surrounding the crimes [] within the six-

month timeframe of the crimes.” 2025 COA 61, ¶ 34. The

Rodriguez-Ortiz division also concluded that while the warrant could

have been more particular by limiting each category using the

language “related to the crimes,” the warrant’s incorporation of the

attached affidavit served the same function. Id. at ¶ 34. The

division ultimately concluded that the warrant “did not allow for a

general rummaging in” the defendant’s phone and personal

information, rather it targeted specific data that could be used to

establish the defendant as a suspect. The search warrant before us

also incorporates the officer’s affidavit and thus limited the

warrant’s scope by the parameters found in the officer’s affidavit.

So the warrant did not authorize a general rummaging in Hurd’s

phone but instead targeted specific data that law enforcement used

to establish Hurd as a suspect. See People v. Roccaforte, 919 P.2d

799, 803-804 (Colo. 1996) (recognizing a broad search warrant is

11
nonetheless permissible when the requested evidence is justified by

the nature of the crime or crimes). We conclude that the search

warrant satisfied the particularity requirement required by the

Fourth Amendment.

¶ 25 Hurd also contends that the affidavit submitted with the

search warrant did not establish probable cause for the search

warrant. However, on appeal, Hurd does not develop this argument

to explain why the affidavit did not establish sufficient probable

cause. So we decline to address his argument further. See People

v. Rodriguez-Morelos, 2022 COA 107M, ¶ 49 (declining to address a

defendant’s conclusory and underdeveloped argument), aff’d, 2025

CO 2.

III. Prior Bad Acts Evidence

¶ 26 Hurd contends that the trial court erred by denying his motion

for a mistrial after it improperly admitted CRE 404(b) evidence. We

are not persuaded and conclude that because the alleged references

made to Hurd’s prior bad acts were fleeting and ambiguous, the

trial court did not abuse its discretion.

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A. Additional Facts

¶ 27 Before trial, Hurd filed a motion objecting to the admission of

Hurd’s prior bad acts that were outside the charged allegations.

During the pretrial conference, the prosecution acknowledged that

they “did not file [a] 404(b)” and that they “[understood] the

constraints of that.” The court advised the parties to approach the

bench during trial if either party felt that “a door has been opened”

to any prior bad acts evidence.

¶ 28 During trial, the prosecution asked B.R. why she had not run

away to get help. B.R. responded, “I don’t know . . . I knew what

was going to happen. It is also something similar [to something

that] happened before.” Defense counsel objected and, after a

bench conference, the court struck B.R.’s answer and instructed

the jury to disregard it.

¶ 29 As the prosecutor continued, B.R. said that she was “pretty

sure his neighbors heard [them] fighting before.” Defense counsel

objected, and the court sustained the objection. Hurd’s counsel

requested a mistrial because B.R. had mentioned prior bad acts

twice and a curative instruction would not “cover that.” The court

denied the mistrial because it found that B.R.’s second statement

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could have referred to the same night “an hour or so before [] the

altercation had taken place previously.” The court denied the

request for mistrial, gave the prosecutor the opportunity to “clean

up that statement,” and admonished B.R. about her statements.

¶ 30 The prosecutor later asked B.R. if she had an eye injury

because of the incident and B.R. said, “I don’t remember if I had

like a busted eye socket or not at that time. I don’t know if it was

that time.” Defense counsel again requested a mistrial based on

this “reference to a prior bad act.” The court denied the request

because it “did not hear [the testimony] as a statement that was

being made in terms of reference to another event. But that [B.R.]

just didn’t know if she had a broken eye socket.”

¶ 31 Next, B.R.’s mother testified that Hurd “secretly recorded her

one other time and [B.R.] said it wasn’t as humiliating.” Defense

counsel asked the court to strike the statement and again requested

a mistrial. The court denied the request but struck the response

and told the prosecutor, “[W]e need to dance very closely at this

point in time if these witnesses don’t want to have to come back

and do this a second time.”

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¶ 32 Finally, the prosecution called the FNE as an expert in

“forensic nurse examination, strangulation, and intimate partner

violence.” The court qualified her as an expert but noted it would

not allow testimony about “a cycle of violence.” The prosecution

asked the FNE if someone “who has been subjected to intimate

partner violence sometimes have a delay in reporting.” The FNE

responded,

[FNE]: Yes.

[Prosecutor]: Why is that?

[FNE]: Well, as I explained a little earlier,
intimate partner violence is a very complex
cycle of violence. Many of these patients in
these relationships do love and care for that
person, even though that person is hurting
them. And this cycle repeats itself multiple
times throughout the course of the
relationship and typical cycles of violence […]

¶ 33 The prosecutor interrupted the FNE and ended the direct

testimony shortly afterward. Before cross-examination, defense

counsel objected to the testimony and requested a mistrial, arguing

the FNE “essentially told the jury that this has happened before.”

The court denied the request.

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B. Standard of Review and Applicable Law

¶ 34 “A mistrial is a drastic remedy that is warranted only when the

prejudice to the [moving party] is so substantial that its effect on

the jury cannot be remedied by other means.” People v. Cousins,

181 P.3d 365, 373 (Colo. App. 2007) (quoting People v. Dore, 997

P.2d 1214, 1221 (Colo. App. 1999)).

¶ 35 A trial court has broad discretion to grant or deny a motion for

a mistrial, and we will not reverse its decision absent an abuse of

that discretion and prejudice to the moving party. People v. Salas,

2017 COA 63, ¶ 9. “A trial court can better evaluate any adverse

effect that improper testimony might have upon a jury than can a

reviewing court. Thus, absent an abuse of discretion, the trial

court’s denial of a motion for mistrial will not be disturbed on

review.” People v. Ned, 923 P.2d 271, 274 (Colo. App. 1996).

¶ 36 Other acts evidence is excluded by Rule 404(b)(1) when its

only logical relevance depends on the inferences that (1) a

defendant’s prior misconduct shows his or her bad character; and

(2) the defendant, due to that bad character, thus engaged in the

wrongful conduct at issue. People v. Shores, 2016 COA 129, ¶ 33

(citing People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990)). When

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“inadmissible evidence of other crimes is brought to the attention of

the jury, the factors relevant to the exercise of discretion to declare

a mistrial include the nature of the inadmissible evidence, the

weight of admissible evidence of guilt, and the value of a cautionary

instruction.” People v. Vigil, 718 P.2d 496, 505 (Colo. 1986).

C. Analysis

¶ 37 We disagree with Hurd’s assertion that the testimonial

evidence for which he requested a mistrial is as problematic as that

addressed in People v. Goldsberry, 509 P.2d 801 (Colo. 1973)

(“when such evidence is so highly prejudicial, as it is here, it is

inconceivable that but for its exposure, the jury may not have found

the defendant guilty.”). Similar to the challenged testimony in Vigil,

P.2d 496 at 505, the potential impact of the fleeting and ambiguous

references to Hurd’s prior conduct is far more difficult to discern.

And considering that the evidence of Hurd’s guilt is substantial, we

perceive no reason to assume that the jury’s verdict was influenced

to any significant extent by the jury’s exposure to the challenged

testimony. See Id. The fleeting and ambiguous testimony was not

so prejudicial as to necessitate the drastic remedy of a mistrial. See

People v. Lahr, 2013 COA 57, ¶ 27 (“[W]e do not view [a] fleeting,

17
ambiguous reference as so prejudicial that the drastic remedy of

declaring a mistrial was required.”).

¶ 38 Moreover, the court took proper steps to remedy any potential

prejudice to the jury caused by the challenged testimony. The court

struck the testimony and instructed the jury to disregard it. It then

instructed the prosecution to cure any confusion with further

questioning, and it admonished the witness. “[A] curative

instruction is generally sufficient to overcome an evidentiary error,

and an instruction is inadequate only when evidence is so

prejudicial that, but for its exposure, the jury might not have found

the defendant guilty.” People v. Gillespie, 767 P.2d 778, 780 (Colo.

App. 1988) (citing Vigil v. People, 731 P.2d 713 (Colo.1987)).

¶ 39 Hurd cites Goldsberry to argue that the curative instruction

striking B.R.’s testimony did not cure the alleged prejudice to the

jury. In Goldsberry, the supreme court said that“[w]hen reference is

made in the presence of the jury to [unrelated] criminal activity, a

mistrial is normally required.” 509 P.2d at 803. But the supreme

court has since clarified that “Goldsberry...did not displace the

general rule that a trial court’s determination whether or not to

grant a mistrial will not be disturbed absent an abuse of

18
discretion.” Vigil, 718 P.2d at 505. And “[t]he circumstances are ...

rare where we ... will depart from the presumption that a jury

follows a court’s curative instructions.” People v. Salas, 2017 COA

63, ¶ 14 (quoting Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091

(Colo. 2011)). Absent contrary evidence, we presume the jury

understood and followed the trial court’s instructions. See People v.

Abdulla, 2020 COA 109M, ¶ 58 (“[W]e employ the presumption that

the jury understands and applies the given instructions unless a

contrary showing is made . . . .”)

¶ 40 We are not persuaded that the ambiguous testimonial

references to uncharged events necessitated a mistrial. And

defense counsel could have requested a less drastic remedy. See

Abbott, 690 P.2d at 1269 (“[A] mistrial is only warranted where the

prejudice to the accused is too substantial to be remedied by other

means.”) We conclude that the trial court did not abuse its

discretion by denying Hurd’s requests for a mistrial.

IV. Prosecutorial Misconduct

¶ 41 Hurd contends that the prosecution improperly “asked the

jurors to imagine themselves in B.R.’s position” and “lowered its

burden of proof by inaccurately describing the reasonable doubt

19
standard” through “its arguments during voir dire and closing.”.

We disagree.

A. Additional Facts

¶ 42 During voir dire, the prosecutor asked prospective jurors how

they might feel if asked to describe their last consensual sexual

encounter in front of the people in the room. A few jurors

responded that they would feel uncomfortable and embarrassed.

The jurors also added that it would probably be more difficult if the

encounter was nonconsensual and the sexual partner was also

present in the audience. The prosecutor then asked the jurors how

they would expect a victim of a nonconsensual sexual encounter to

“come off or testify or act”. The prospective jurors responded to the

range of reactions and attitudes such a victim might have.

¶ 43 The prosecutor said in her opening statement, “I don’t know

exactly what [B.R.] is going to say while she testifies. But what I do

know is that that is a difficult thing to talk about. She was hurt;

she has to talk about what happened in front of strangers.”

¶ 44 In closing argument, the prosecutor said

Let’s talk about [B.R.]. . . . Why is she coming
all the way over here from Chicago, being
made to go up on the witness stand and

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subjected to hours of cross-examination
of having you guys see embarrassing, horribly
humiliating videos of her. . . . Why after this
would she go back to him.

Think about in voir dire when we talked a little
bit about that. That some people don’t report
to the police. Some people go back to their
abusers. You heard that there is a hesitancy.

¶ 45 During rebuttal closing argument, the prosecutor reminded

the jurors that they witnessed how difficult it was for B.R to testify

about an intimate and traumatic incident in front of a courtroom

full of strangers.

¶ 46 During closing argument, the prosecutor also discussed the

burden of proof:

You’re also given the definition of reasonable
doubt. And it’s a doubt based on your common
sense but it can’t be a doubt based on
speculation of what if there is something we
didn’t hear or what if this happened. If you
don’t hear that it happened, it’s speculation to
believe that it did. It’s the difference between
something that’s possible and evidence that
actually occurred in this case.

So, yes, is it possible that something may have
happened, yeah. But if there was no evidence
of it, then you can’t consider it. That would be
speculation. It would be speculative to believe
that there was some conversation where he
said she could do this to him because you
haven’t heard any evidence that there was.

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¶ 47 The prosecutor went on to say

You may have questions like, you know, what
happened seven days earlier where she called
him and she was — you heard a little bit of
evidence that she called him and was
kind of like saying she wanted to see him or
they were talking about potential phone calls
that she had with other men. You didn’t hear
any evidence though that she said I will
consent for you to do anything that you want
to me. So that would be speculation.

¶ 48 The prosecution then said in rebuttal argument:

You’re not allowed to speculate. So the fact
that her sister did not come to Court or did not
cooperate, did not respond to Detective
Singleton does not mean that the elements
have not been proven beyond a reasonable
doubt. The defense wants you to speculate
that [B.R.] made it up because she is somehow
mad at the defendant that she didn’t want the
defendant to follow through with his threats to
post the videos so she just made it all up. . . .

B. Standard of Review and Applicable Law

¶ 49 Because Hurd did not contemporaneously object to the

prosecutor’s comments, we review his prosecutorial misconduct

claim for plain error. People v. Vialpando, 2022 CO 28, ¶20. We

reverse under the plain error standard only if the court erred and

the error was obvious and substantial. Hagos, ¶14, 288 P.3d at

120. An error is obvious if it contravenes a clear statutory

22
command, a well-settled legal principle, or established Colorado

case law. People v. Crabtree, 2024 CO 40M, ¶ 42. An error is

substantial if it “so undermined the fundamental fairness of the

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

of conviction.” Id. at ¶ 43 (quoting Wilson v. People, 743 P.2d 415,

420 (Colo. 1987)).

¶ 50 In reviewing a prosecutorial misconduct claim, we conduct a

two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). We determine first whether “the prosecutor’s questionable

conduct was improper based on the totality of the circumstances

and, second, whether such actions warrant reversal according to

the proper standard of review.” Id.

¶ 51 Because “[a]dvocates must be able to present their best case to

achieve just results,” prosecutors have “wide latitude in the

language and presentation style used to obtain justice.” Domingo-

Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). During closing

argument, a prosecutor “may refer to the strength and significance

of the evidence, conflicting evidence, and reasonable inferences that

may be drawn from the evidence.” People v. Walters, 148 P.3d 331,

334 (Colo. App. 2006). However, a prosecutor’s “arguments and

23
rhetorical flourishes must stay within the ethical boundaries” that

our supreme court has drawn. Domingo-Gomez, 125 P.3d at 1048.

¶ 52 Prosecutors must refrain from “express[ing] a personal belief

or opinion as to [the] truth or falsity of [a witness’s] testimony,”

Wilson, 743 P.2d at 419; intentionally misstating the evidence or

the law, Domingo-Gomez, 125 P.3d at 1048-49; and making “golden

rule” arguments because “they encourage the jury to decide the

case based on personal interest . . . rather than on a rational

assessment of the evidence,” People v. Munsey, 232 P.3d 113, 123

(Colo. App. 2009).

¶ 53 A “golden rule” argument invites jurors to put themselves in

the place of the victim and imagine that the defendant wronged

them personally. People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999);

People v. Randell, 2012 COA 108, ¶ 87. Such an argument is

improper in the guilt phase of a case because it could encourage the

jury to base its decision on personal interest and emotion rather

than on a rational evaluation of the evidence. People v. Munsey,

232 P.3d 113, 123 (Colo. App. 2009).

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C. Analysis

¶ 54 We reject Hurd’s assertion that the prosecutor made an

improper “golden rule” argument. “A true ‘golden rule’ argument

invites jurors to put themselves in the place of the victim and

imagine that the defendant wronged them personally, thereby

inflaming passions and prejudice.” People v. Randell, 2012 COA

108, ¶ 92. Given the totality of the circumstances, we conclude

that no plain error occurred.

¶ 55 Regarding the statements made during voir dire, the

prosecutor asked the jurors to consider B.R.’s difficulties in

testifying and the overall effect that it would have on her testimony.

The prosecutor did not ask the prospective jurors to place

themselves in the victim’s shoes concerning the offenses charged.

And voir dire is not in a trial’s guilt phase. Voir dire allows counsel

to inquire whether potential jurors hold any biases that would

prevent the defendant from receiving a fair trial. People v. Wilson,

2013 COA 75, ¶ 12.

¶ 56 As to the prosecutor’s closing argument, “prosecutors have

wide latitude in the language and style they choose to employ.”

People v. Duncan, 2023 COA 122, ¶ 31 (quoting People v. McMinn,

25
2013 COA 94, ¶ 60). And “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.” People v. Samson, 2012 COA 167, ¶

30. To determine whether a closing argument was improper, we

consider the language used, the statements’ context, the evidence’s

strength, and whether the prosecutor repeated the misconduct.

People v. Lovato, 2014 COA 113, ¶ 64.

¶ 57 We may also consider a failure to object because 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)). Given these demanding requirements, “[p]rosecutorial

misconduct in closing argument rarely constitutes plain error.” Id.

(alteration in original) (quoting Liggett v. People, 135 P.3d 725, 735

(Colo. 2006)).

¶ 58 We disagree with Hurd’s argument that the prosecutor’s

closing remarks lowered the prosecution’s burden of proof. The

prosecutor’s statements regarding jurors speculating about

evidence responded to defense counsel’s closing argument that B.R.

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“regret[ted] those videos exist[ing]” and that “regretting that [she]

consented to something after the fact [did] not negate the fact that

[she] consented to it.” Defense counsel also argued that “the only

way that this is against her will is if he has so badly beaten her,

threatened her to the point that she feels she has to say yes or

something worse will happen.” So the prosecutor’s arguments did

not lower the prosecution’s burden of proof but rather informed the

jury that a verdict could not be supported by “guessing,

speculation, conjecture, or a mere modicum of relevant evidence”

such as that suggested by defense counsel’s arguments. Donald,

¶19. We conclude that the prosecutor’s closing arguments did not

constitute prosecutorial misconduct or plain error. And even if we

conclude that the prosecutor engaged in prosecutorial misconduct,

any error did not rise to the level of being so substantial as to

warrant reversal. “Only prosecutorial misconduct that is ‘flagrantly,

glaringly, or tremendously improper’ warrants reversal under the

plain error test.” People v. Duncan, 2023 COA 122, ¶ 33 (quoting

Hagos, ¶ 14, 288 P.3d at 120).

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V. Lesser Nonincluded Offense Jury Instruction Was Not
Warranted

¶ 59 Hurd contends that the trial court erred by applying the wrong

legal standard when it denied his request for the court to instruct

the jury on the lesser nonincluded offense of criminal invasion of

privacy. We disagree.

A. Standard of Review and Applicable Law

¶ 60 We review the trial court’s decision whether to give a particular

jury instruction for an abuse of discretion. People v. Manyik, 2016

COA 42, ¶ 65; see also People v. Wartena, 2012 COA 12, ¶ 30

(“Whether the record contains sufficient evidence to support

instruction on a lesser offense is a factual inquiry reviewed for an

abuse of discretion.”).

¶ 61 A defendant is entitled to an instruction on a lesser

nonincluded offense — “a lesser offense that requires proof of at

least one element not contained in the charged offense” — “so long

as a rational evidentiary basis exists to simultaneously acquit him

of the charged offense and convict him of the lesser offense.” People

v. Naranjo, 2017 CO 87, ¶¶ 15, 17. We review de novo whether

statutory elements support a rational evidentiary basis that would

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allow a jury to acquit the defendant of a greater offense and convict

him of the lesser offense. People v. Naranjo, 2015 COA 56, ¶ 11

(citations omitted.) In deciding whether the defendant is entitled to

the proffered instruction, the court must consider the evidence in

the light most favorable to the defendant. Mata-Medina v. People,

71 P.3d 973, 979 (Colo. 2003). But “the mere chance that a jury

may reject uncontroverted testimony and convict on the lesser

charge does not require the trial court to instruct the jury on the

lesser charge.” People v. Ramirez, 18 P.3d 822, 827 (Colo. App.

2000).

¶ 62 The theory behind allowing a lesser offense instruction is that

such an instruction “promotes . . . fairer verdicts” because it “helps

ensure that a jury does not convict a defendant of a greater offense

than the one actually committed merely because the greater offense

is the only crime charged and the jury is persuaded that some

crime was committed.” Naranjo, ¶ 16 (concerning lesser

nonincluded offenses); see also Skinner, 825 P.2d at 1047 (The

importance of a lesser offense instruction is that “the jury might not

be aware that it has the option of acquitting the defendant on the

greater charge and convicting him of a lesser charge.”).

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¶ 63 The prosecution charged Hurd with sexual assault —

submission against the victim’s will, through the use of physical

force or violence, or threat of harm, or threat of retaliation. § 18-3-

02(1)(a),(4)(a),(b),(c), C.R.S. 2025. Hurd’s proposed lesser

nonincluded instruction on criminal invasion of privacy defines the

crime as: “knowingly observ[ing] or tak[ing] a photograph [or video]

of another person’s intimate parts […] without that person’s

consent, in a situation where the person observed or photographed

has a reasonable expectation of privacy.” § 18-7-801, C.R.S. 2025.

B. Analysis

¶ 64 Though Hurd argued that criminal invasion of privacy was “a

lesser non-included of the acts that are included by the

[p]rosecution” and that “[t]hey’re proof of this – []all these charges,”

the trial court found that the offense did not “specifically relate to

any of the crimes” charged in the case. In other words, the trial

court ruled there was no rational evidentiary basis that would

support instructing the jury on the lesser nonincluded offense. We

agree.

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¶ 65 The jury convicted Hurd of the lesser-included offense of

second-degree assault, sexual assault, second-degree kidnapping,

and the lesser nonincluded harassment offense.

¶ 66 We agree with the trial court that a rational evidentiary basis

did not exist to acquit Hurd of the charged sexual assault -

submission against the victim’s will, through the use of physical

force or violence, or threat of harm, or threat of retaliation offense --

and simultaneously convict him of the proposed lesser included

offense of criminal invasion of privacy. Considering the trial

evidence, including the videos taken by Hurd on his phone during

his assaults on B.R., we agree with the trial court that no rational

evidentiary basis existed to convince the jury to simultaneously

acquit Hurd of the sexual assault charge and convict him on the

criminal invasion of privacy charge. That is, there is no risk that

the jury would view the explicit and graphic videos of the sex acts

and conclude that the acts were consensual, and only the nude

photographs were not, leaving them with the only option of

convicting of the greater offense.

¶ 67 Moreover, Hurd’s theory of defense did not include a claim

that he was guilty of criminal invasion of privacy. Instead, he

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claimed that he did not assault or kidnap B.R. and that any sexual

conduct was consensual. The “consent” element in his proposed

lesser nonincluded jury instruction does not refer to the victim’s

consent to sexual conduct but to the victim’s consent to her

intimate parts being photographed. § 18-7-801; see also People v.

Wartena, 2012 COA 12, ¶ 36 (“A lesser nonincluded offense

instruction is tantamount to a defendant’s theory of the case

instruction” and “is in the nature of a strategy” (quoting People v.

Skinner, 825 P.2d 1045, 1047-48 (Colo. App. 1991).

¶ 68 We conclude that the trial court did not abuse its discretion by

refusing to instruct the jury on the lesser-included offense of

criminal invasion of privacy.

VI. Cumulative Error

¶ 69 Since we have rejected all of Hurd’s claims on appeal, we

necessarily reject his cumulative error argument. People v. Walton,

167 P.3d 163, 169 (Colo. App. 2007) (Because there are not

multiple errors to compound, the defendant cannot be awarded

relief on a cumulative error basis.).

VII. Disposition

¶ 70 The judgment is affirmed.

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JUDGE PAWAR and JUDGE YUN concur

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