Peo v. Demiter

22CA1203 Peo v Demiter 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1203
Routt County District Court No. 21CR28
Honorable Michael A. O’Hara III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sean Michael Demiter,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Kuhn and Schutz, JJ., concur

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

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for
Defendant-Appellant
¶1 Defendant, Sean Michael Demiter, appeals his judgment of

conviction and sentence for unlawful sexual contact, second degree

tampering, theft, unauthorized use of a financial transaction device,

and identity theft. We affirm the judgment but reverse the sentence

in part and remand the case with directions to correct the mittimus.

I. Background

¶2 J.S. met Demiter when she rented a room in his apartment in

Steamboat Springs. According to J.S., the two became “intimate”

but were never a couple. Eventually, J.S. informed Demiter that

she was moving out of the apartment. J.S. testified that Demiter

saw her packing and became angry. According to J.S., Demiter

appeared to calm down at points but then would become angry

again. J.S. testified that Demiter calmed down and told her she

could stay and pack her things, but the next morning, things

escalated.

¶3 While J.S. was half asleep, Demiter asked her if he could

borrow her debit card to buy a soda. J.S. agreed. Demiter then

showed J.S. a video and pictures of him masturbating above her

head and told her he would take the video to her place of work so

that her colleagues “could know what a whore [she] was.” J.S.

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testified that she didn’t know Demiter had masturbated over her

head and wouldn’t have known if he hadn’t showed her the video or

pictures. According to J.S., she drank the night before until she

passed out, and Demiter told her that he took the video and photos

while she was passed out. Evidence presented at trial established

that Demiter sent J.S.’s then ex-boyfriend a photo of a penis on

J.S.’s face.

¶4 After showing J.S. the video and photographs, he offered to

help her pack and began grabbing her things. According to J.S.,

Demiter threw her things in her van and piled them outside her

door. Demiter then started screaming at her. He threw her potted

plants in her suitcase, threw her skis onto the sidewalk, and threw

a heap of clothes on top of the broken pots. J.S. also testified that

while she was trying to walk away from Demiter, he grabbed her

necklace multiple times and pulled to “yank [her] back.” J.S.

decided to leave the remainder of her things and go to a hotel for

the night.

¶5 J.S. called Demiter the next day to pick her up so she could

get the rest of her things. J.S. testified that Demiter again began

throwing her things outside and into the van and that Demiter spat

2
on her van. After getting the remainder of her things, J.S. left. J.S.

testified that Demiter “smashed” her potted plants, got soil inside

her car, and, at some point, wrote “whore” on each page of her day

planner. She also testified that her backpack was covered in liquid

soap.

¶6 J.S. testified that after the incident, she noticed that her bank

account was “almost completely empty.” According to J.S., she

didn’t recognize two withdrawals from an ATM, one for $102.95 and

one for $103.00. J.S. confirmed that Demiter had taken her debit

card and returned it to her but that she didn’t authorize him, or

anyone else, to make either withdrawal. The prosecution

introduced surveillance footage from one of the ATM locations at

trial, and Officer Thomas Barnett of the Steamboat Springs Police

Department testified that it showed a man, believed to be Demiter,

making a transaction at the ATM.

¶7 Demiter was arrested and charged with two counts of unlawful

sexual contact, one count of assault in the third degree, one count

of menacing, one count of false imprisonment, one count of

harassment, one count of criminal mischief, one count of second

degree criminal tampering, one count of theft, one count of

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unauthorized use of a financial transaction device, one count of

criminal possession of a financial device, one count of identity theft,

and six counts of a violation of bail bond conditions. The District

Attorney dismissed all counts related to menacing, harassment,

criminal mischief, criminal possession of a financial device, and a

violation of bail bond conditions. The jury found Demiter guilty of

one count of unlawful sexual contact, second degree tampering,

theft, unauthorized use of a financial transaction device, and

identity theft. The jury acquitted Demiter of the remaining charges.

¶8 The court sentenced Demiter to a controlling twelve-month jail

sentence for the unlawful sexual contact, tampering, theft, and

unauthorized use of a financial transaction device convictions,

followed by a consecutive sentence of five years in the custody of

the Department of Corrections for the identity theft conviction.

II. Analysis

¶9 Demiter raises six arguments on appeal. He contends that

(1) the trial court erred by denying his motion to suppress

statements he made during his arrest; (2) the trial court

erroneously admitted a screenshot of J.S.’s bank account without

proper authentication and in violation of the rule against hearsay;

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(3) the prosecutor engaged in multiple instances of prosecutorial

misconduct; (4) the jury instructions constructively amended the

sexual contact charge; (5) the trial court erred by not giving a

modified unanimity instruction on the tampering charge; and

(6) the trial court erroneously applied Demiter’s presentence

confinement credit (PSCC) to only his sentence for the misdemeanor

convictions, not the felony conviction. We consider each contention

below.

A. The Denial of Motion to Suppress Demiter’s Statements

¶ 10 Demiter first contends that the trial court erred by denying his

motion to suppress statements he made during his arrest. We

disagree.

1. Additional Facts

¶ 11 Before trial, Demiter filed a motion to suppress statements he

made incident to his arrest. The court held a hearing on the

motion, and the following facts were established at the hearing.

¶ 12 The Steamboat Springs Police Department obtained a warrant

to arrest Demiter and went to his home to try and contact him.

Initially, officers were unable to reach Demiter, but Demiter called

the police, and Sergeant Richard Brown was eventually able to

5
reach Demiter by phone. Sergeant Brown told Demiter that there

were warrants out for his arrest and encouraged Demiter to turn

himself in. But, according to Sergeant Brown, Demiter was “upset

about the warrants,” leading him to believe it was unlikely Demiter

would turn himself in. After speaking with Demiter’s sister and

J.S., Sergeant Brown became increasingly worried about Demiter’s

mental health. Demiter didn’t turn himself in, and five officers in

total, including Sergeant Brown, went to Demiter’s home to attempt

to arrest him.

¶ 13 While determining how to approach Demiter’s unit, officers on

one side of the building noticed that Demiter had written, “I kill

cops,” on the sliding glass door. Sergeant Brown testified that he

heard a lot of banging coming from Demiter’s apartment and then

Demiter exited his apartment. Sergeant Brown yelled at Demiter to

come out, but Demiter ran back inside. Sergeant Brown followed

Demiter inside the unit and testified that while inside, he saw

Demiter holding two large knives and yelling, “F you,” at him.

Sergeant Brown stated that Demiter was “holding the knives in a

very aggressive way, and was very threatening with them.”

Eventually, Demiter barricaded himself in a bedroom. According to

6
Sergeant Brown, the efforts to convince Demiter to exit the bedroom

went on for approximately four hours. Sergeant Brown’s body

camera footage recorded the full encounter.

¶ 14 During the suppression hearing, the prosecutor introduced a

portion of the body camera footage. The video depicts police

arriving at Demiter’s home and Demiter exiting and then retreating

into his home. While he is locked in the bedroom, Demiter begins

yelling at the officers, and Sergeant Brown responds and attempts

to “deescalate the situation.”

¶ 15 As relevant here, during this interaction, Demiter stated the

following:

• “All I did was take pictures having sex.”

• “I’m not going to jail for fucking having my cock in her

mouth that she was fucking willing to take pictures of.”

• “I’m not going to jail for loving a woman.”

• “I sent her ex a dick pic.”

• “It was all consensual. There’s no video. There was

never five dudes. It was always just me and her.”

• “I took a picture. Sorry. She said it was okay.”

• “I loved her.”

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• “I paid for her flight to go fuck some dude. Yes, I was

angry. Yes, I tossed all her shit outside.”

¶ 16 Sergeant Brown testified that he didn’t advise Demiter of his

Miranda rights before or during this interaction and acknowledged

Demiter wasn’t free to leave the apartment.

¶ 17 After watching the video, the trial court found that while

Demiter was “effectively under arrest” without a Miranda

advisement, there wasn’t a “custodial interrogation by law

enforcement designed to elicit an incriminating response.”

¶ 18 The body camera footage wasn’t introduced at trial, but at

trial, Sergeant Brown testified in detail about the statements

Demiter made during the encounter.

2. Legal Principles and Standard of Review

¶ 19 Pursuant to the Fifth Amendment of the United States

Constitution, “No person . . . shall be compelled in any criminal

case to be a witness against himself.” Because of this privilege, a

suspect must be advised of his rights under the Fifth Amendment

before being subjected to a custodial interrogation. People v.

Sampson, 2017 CO 100, ¶ 17 (citing Miranda v. Arizona, 384 U.S.

436, 478-79 (1966)). The prosecution can’t introduce in its case-in-

8
chief any statements “procured by custodial interrogation” that

weren’t preceded by certain warnings. Effland v. People, 240 P.3d

868, 873 (Colo. 2010) (citing Miranda, 384 U.S. at 444).

¶ 20 Miranda safeguards are necessary “whenever a person in

custody is subjected to either express questioning or its functional

equivalent.” People v. Wood, 135 P.3d 744, 749-50 (Colo. 2006)

(quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).

“Interrogation includes ‘any words or actions on the part of the

police (other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an

incriminating response from the suspect.’” Id. at 750 (quoting

Innis, 446 U.S. at 301). When assessing whether an officer should

have known their words or actions “were reasonably likely to elicit

an incriminating response, ‘we consider the totality of the

circumstances surrounding the making of the statement.’” Id.

(quoting People v. Gonzales, 987 P.2d 239, 241 (Colo. 1999)). The

focus of our inquiry is on “whether the officer reasonably should

have known that his words or actions would cause the suspect to

perceive that he was being interrogated.” Id. (citation omitted).

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¶ 21 When reviewing a trial court’s suppression order, we defer to

the trial court’s findings of fact if competent evidence in the record

supports them, but we review legal conclusions de novo. Compos v.

People, 2021 CO 19, ¶ 16.

3. Application

¶ 22 Because Demiter wasn’t subjected to an interrogation when he

made the statements, the trial court didn’t err by denying his

motion to suppress.

¶ 23 Demiter argues that an interrogation occurred because

Sergeant Brown engaged in relationship building with Demiter by

discussing case information and asking Demiter to talk to him.

Combined with his “extremely vulnerable emotional state,” Demiter

argues this case is like Wood, in which our supreme court found

that the functional equivalent of an interrogation occurred. See

Wood, 135 P.3d at 751. In Wood, the defendant wasn’t informed of

the nature of the charges against him but was placed under arrest

and in a holding cell. Id. at 746, 751. The detective told the

defendant that the purpose of the interview was “to get both sides”

and asked the defendant “to tell his side of the story.” Id. at 750-

51. In determining that the functional equivalent of an

10
interrogation had occurred, the court also considered the

defendant’s “harried emotional state” and the trial court’s finding

that the detective engaged in relationship building with the

defendant. Id. at 751.

¶ 24 But the circumstances of this case are wholly distinguishable

from those in Wood. First, Demiter wasn’t placed in a holding cell;

rather, when officers entered Demiter’s apartment, they found him

holding knives in an offensive posture, and then Demiter barricaded

himself in a room. Second, Demiter knew of the allegations against

him before the standoff and knew that the purpose of the officers’

visit was to arrest him, not just to hear his side of the story, as the

officers told the defendant in Wood. See id. at 746. Indeed,

Sergeant Brown had discussed the arrest warrant with Demiter

earlier that day. And most importantly, the officers didn’t initiate

discussions about the case with Demiter. Rather, Seargent Brown

initially told Demiter to “put the knife down” and to “come on out,”

but Demiter quickly began discussing the allegations by yelling out

that “he didn’t hurt her.” Sergeant Brown responded, “[W]e didn’t

say you did.” While Demiter contends that this was “relationship

building” akin to an interrogation, the tense situation warrants a

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different conclusion. At that point, both J.S. and Demiter’s sister

had discussed their concern for his well-being, Demiter had been

seen wielding two knives, and Demiter had barricaded himself

inside a room. Under these circumstances, it isn’t probable that

Sergeant Brown would believe his response would elicit an

incriminating statement from Demiter or that Demiter would believe

he was being interrogated. Rather, as Sergeant Brown testified, it

was a response meant to deescalate the situation. See id. at 751

(an officer’s intent is relevant to an interrogation inquiry but isn’t

the “primary focus”).

¶ 25 As the standoff continued, Sergeant Brown made more

comments in an effort to deescalate the situation, such as, “I told

you I’d listen to you,” “[C]ome out and talk to me,” and “I told you

that I’d would work with you.” These comments were made in

response to Demiter’s statements that he had “armor piercing”

bullets or “9 mm cop killers”; that “somebody’s leaving in a body

bag”; that he was “ready to die”; and that “[he] wanted to die

yesterday.” Under these escalated and potentially dangerous

circumstances, the statements similarly don’t indicate that

Sargeant Brown reasonably should have known his words would

12
cause Demiter to perceive he was being interrogated. Indeed,

Sergeant Brown’s repeated statements, “I don’t want to hurt you

and you don’t want to hurt anybody,” “I don’t want to kill you,” “I

don’t want anyone to die,” “[I]t doesn’t have to end this way,” and

“[N]o one’s gonna leave in a body bag,” should have indicated to

Demiter that he wasn’t being interrogated.

¶ 26 Accordingly, we conclude that Demiter’s statements weren’t

the product of an interrogation. And because a Miranda

advisement isn’t necessary in the absence of an interrogation, we

need not address the People’s alternative contention that Demiter

wasn’t in custody.

B. The Admission of the Screenshot of J.S.’s Bank Account

¶ 27 Demiter next contends that the trial court erred by admitting a

screenshot of J.S.’s bank account at trial. According to Demiter,

the account wasn’t properly authenticated and constituted

inadmissible hearsay. We aren’t persuaded.

1. Additional Facts

¶ 28 At trial, J.S. testified that, after leaving Steamboat Springs,

she noticed her bank account was “almost completely empty.”

According to J.S., she noticed the reduced funds while checking her

13
account through “online banking.” The prosecutor presented a

screenshot of J.S.’s bank account to her and asked her to

authenticate it. J.S. confirmed that it was a “screenshot from [her]

phone of [her] online banking.” The prosecutor then asked J.S.

whether she recognized two ATM transactions on the screenshot,

and J.S. stated that she didn’t.

¶ 29 The prosecutor moved for admission of the screenshot, and

defense counsel requested a bench conference. During the bench

conference, defense counsel objected to “[J.S.] identifying or

authenticating” the screenshot. Defense counsel expressed that

J.S. wasn’t the custodian of the record and that J.S. wasn’t the

proper witness to introduce the record through. The trial court

overruled the objection stating, “[S]he’s authenticating a photograph

known as a screenshot of what’s on her — cell phone screen. She’s

testified to that already. That’s the authentication. Now what it

means, I suppose, is subject to examination.” The trial court then

admitted the screenshot.

2. Standard of Review and Preservation

¶ 30 “We review a trial court’s evidentiary ruling for an abuse of

discretion.” Gonzales v. People, 2020 CO 71, ¶ 25. “A trial court

14
abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law.” People v.

Abdulla, 2020 COA 109M, ¶ 61. When an issue is preserved, we

apply the nonconstitutional harmless error standard to a trial

court’s evidentiary rulings. People v. Martinez, 2020 COA 141, ¶ 27;

see Hagos v. People, 2012 CO 63, ¶ 12. Under this standard,

“reversal is warranted if the error affects the substantial rights of

the parties, meaning ‘the error substantially influenced the verdict

or affected the fairness of the trial proceedings.’” Martinez, ¶ 28

(quoting Zapata v. People, 2018 CO 82, ¶ 61).

¶ 31 Both parties agree that Demiter preserved his authentication

objection. But Demiter and the People dispute whether Demiter

preserved his hearsay contention.

¶ 32 To preserve an objection to evidence admitted at trial, a party

must make a “timely and specific objection.” People v. Coughlin,

304 P.3d 575, 581-82 (Colo. App. 2011) (quoting Am. Fam. Mut. Ins.

Co. v. DeWitt, 218 P.3d 318, 325 (Colo. 2009)). An objection allows

the trial court to “focus on the issue and hopefully avoid the error.”

Id. at 582. But “[e]ven if an objection to evidence does not

specifically identify the rule underlying the objection, it is

15
nonetheless sufficient to preserve an issue for appeal if the

objecting attorney presents arguments or utilizes language that

alerts the trial court to the impending error.” Id.

¶ 33 Although authentication and hearsay are two separate

evidentiary bars, both bars may be cleared by an affidavit or

testimony of a custodian in certain circumstances. CRE 902(11);

CRE 803(6). When objecting, defense counsel expressed that J.S.

wasn’t the proper custodian because this was a bank record.

Because of the language used, the trial court should have been

alerted that its admission might implicate issues with both

authentication and hearsay. Moreover, in ruling on the

authentication objection, the court acknowledged that the content

of the document might present separate hearsay issues. Thus, we

conclude that Demiter’s hearsay contention was properly preserved.

3. Application

¶ 34 Authenticity and hearsay are two separate hurdles to

admissibility that are governed by the Colorado Rules of Evidence.

See CRE 901(a); CRE 802. Because Demiter challenges the

admission of the bank records on both authenticity and hearsay

grounds, we address each in turn.

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a. Authentication

¶ 35 Authentication is “a condition precedent to admissibility” and

“is satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.” CRE 901(a). The

proponent bears the burden of authenticating evidence by “a prima

facie showing.” People v. N.T.B., 2019 COA 150, ¶ 16 (quoting

People v. Glover, 2015 COA 16, ¶ 13). But the quantity or nature of

proof required for authentication isn’t definitively established in

CRE 901. N.T.B., ¶ 17. And the trial court must determine

“whether the proponent has offered a satisfactory foundation from

which the jury could reasonably find that the evidence is

authentic.” Gonzales, ¶ 27 (citation omitted). If the burden of

authentication is met, then the actual authenticity of the evidence

or any defects in the authenticity of the evidence “go to the weight

of evidence and not its admissibility.” N.T.B., ¶ 16. Under

CRE 901(b)(1), one method of authentication is by testimony of a

witness with knowledge “that a matter is what it is claimed to be.”

¶ 36 In this case, the screenshot was admitted after J.S. testified

that she took the screenshot and that it was a picture of her online

17
banking account. Under CRE 901(b)(1), this is enough for proper

authentication.

¶ 37 Demiter cites N.T.B., ¶¶ 20, 33, to support his contention that

because the screenshot was of an electronic record without an

acknowledgement of authorship, it couldn’t properly be

authenticated through J.S. We acknowledge that the screenshot

admitted through J.S. doesn’t contain significant identifying

information. But even without more identifying information, the

trial court could properly find that J.S. authenticated the

screenshot because she testified that it was her bank account, that

she took the screenshot, and that she wasn’t concerned about

another charge (from City Market) shown on the screenshot. See id.

at ¶ 33 (“CRE 901 is a flexible standard. The type and quantity of

evidence necessary to authenticate a particular piece of evidence

will always depend on context.”); cf. Glover, ¶ 26 (“To establish that

a printout contains content from Facebook or another social

networking website, courts have relied on testimony regarding how

the records were obtained, the substance of the records themselves,

and affidavits or testimony from employees of the social networking

site.”).

18
b. Hearsay

¶ 38 Authenticity, however, “does not guarantee admissibility,” and

authentic evidence may be inadmissible on hearsay grounds.

N.T.B., ¶¶ 21-22. Hearsay is an out-of-court statement “offered in

evidence to prove the truth of the matter asserted.” CRE 801(c).

Unless it’s permitted by the rules of evidence, a statute, or a

procedural rule, hearsay is inadmissible. CRE 802. Unlike

authentication, when “a court allows the jury to weigh questionably

authentic evidence, a hearsay objection presents a binary choice —

courts must exclude hearsay unless its proponent satisfies an

exception.” N.T.B., ¶ 23.

¶ 39 Assuming without deciding that none of the hearsay

exceptions apply, we conclude that any error in admitting the

screenshot was harmless.

¶ 40 At trial, Demiter admitted making two withdrawals for

approximately $100 each using J.S.’s card. But Demiter stated that

he withdrew the money at J.S.’s request and gave her the money.

Because Demiter admitted to withdrawing approximately $200 from

J.S.’s account on the dates in question, the screenshot was

cumulative of Demiter’s testimony.

19
¶ 41 Demiter contends that the admission of the screenshot wasn’t

harmless because the court would have had to grant his motion for

judgment of acquittal on the “financial counts at the close of the

State’s case” in the absence of the screenshot. We aren’t

persuaded. Even without the screenshot and the ATM surveillance

footage admitted after tracking one of the ATM withdrawals, the

People still introduced enough evidence during its case-in-chief to

survive a motion for a judgment of acquittal. That evidence

included J.S.’s testimony that Demiter withdrew money from her

account without her consent, that approximately $200 was missing

from her account in transactions she hadn’t authorized, and that

Demiter had been in possession of her debit card and PIN. Thus,

the asserted hearsay error doesn’t require reversal.

C. Prosecutorial Misconduct

¶ 42 Demiter next contends that his judgment of conviction should

be reversed because there was prosecutorial misconduct

throughout the trial. We aren’t persuaded.

1. Standard of Review

¶ 43 When reviewing claims of prosecutorial misconduct, we engage

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

20
2010). First, we “determine 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. Because these steps are

“analytically independent of the other,” we could conclude that the

prosecutor’s conduct was improper but decline to reverse the

judgment because the error was harmless. Id.

¶ 44 The standard of review we apply after determining

prosecutorial impropriety “varies depending on the circumstances.”

Id. at 1097. If an error “specifically and directly offend[s] a

defendant’s constitutional rights” and the defendant

contemporaneously objected at trial, then the error is subject to

constitutional harmless error review. Id.; People v. Licona-Ortega,

2022 COA 27, ¶ 86. Constitutional harmless errors require reversal

unless the error “was harmless beyond a reasonable doubt.”

Hagos, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24

(1967)). If the error isn’t of constitutional magnitude and the

defendant contemporaneously objected at trial, we subject the

prosecutor’s misconduct to “general harmless error review.” Wend,

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235 P.3d at 1097. Under this type of review, we reverse only “if the

error affects the substantial rights of the parties.” Hagos, ¶ 12.

¶ 45 But if the defendant fails to contemporaneously object to the

prosecutor’s misconduct — whether the misconduct implicates a

constitutional right or not — then we review for plain error. Wend,

235 P.3d at 1097; see Hagos, ¶ 14. Prosecutorial misconduct

constitutes plain error if it’s “‘flagrant or glaringly or tremendously

improper’ and so undermine[s] the fundamental fairness of the trial

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

conviction.” People v. Carian, 2017 COA 106, ¶ 52 (quoting People

v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App. 2005)).

¶ 46 If we conclude that a prosecutor’s statements were improper,

we must then determine whether “they affected the fundamental

fairness of the trial” by “examin[ing] a variety of factors under the

totality of the circumstances.” Id. at ¶ 55. The factors we examine

include

‘the exact language used, the nature of the
misconduct, the degree of prejudice associated
with the misconduct, the surrounding
context, . . . the strength of the other evidence
of guilt,’ . . . ‘the severity and frequency of the
misconduct[,] . . . and the likelihood that the

22
misconduct constituted a material factor
leading to the defendant’s conviction.’

Id. (alteration in original) (quoting People v. Cordova, 293 P.3d 114,

122 (Colo. App. 2011)).

2. Application

¶ 47 In his opening brief, Demiter appears to contend that the

prosecutor engaged in misconduct on five occasions over the course

of the trial. We address each instance of alleged misconduct in the

order it occurred during trial.

a. Opening Statements

¶ 48 Two of the alleged instances of prosecutorial misconduct

occurred during the prosecution’s opening statement. “A

prosecutor’s opening statement is limited to the evidence that will

be adduced at trial.” People v. Melanson, 937 P.2d 826, 836 (Colo.

App. 1996). Unproved remarks “ordinarily constitute reversible

error if there has been an affirmative showing of bad faith and

manifest prejudice.” Id. Moreover, a prosecutor may not “induce

the jury to determine guilt on the basis of passion or prejudice” or

“appeal to the jurors for sympathy for the victim.” People v. Fortson,

2018 COA 46M, ¶ 50 (citation omitted).

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i. Comments on J.S.’s Background

¶ 49 During opening statements, the prosecutor began explaining

how J.S. arrived in Steamboat Springs and met Demiter.

She’ll tell you she had had some pretty rough
times in her life previously. She had gotten
divorced, she’d had deaths in the family, she
was going through rough times, and she really
wasn’t looking for a relationship at that point.
But one thing led to another, her and Mr.
Demiter spent more and more time together.
They became involved.

¶ 50 Demiter didn’t object to this statement. During trial, the

jurors didn’t hear evidence of deaths in J.S.’s family.

¶ 51 Demiter contends that the prosecutor improperly appealed to

the jurors’ sympathies by telling them J.S. had experienced deaths

in the family and gone through a divorce. But these statements

were brief, and therefore, even if they improperly evoked the jury’s

sympathy, they weren’t so flagrant or glaringly improper so as to

constitute reversible error. Further, while J.S.’s marital status

could evoke juror sympathy, it was a relevant fact introduced at

trial and, therefore, was appropriate background information for the

prosecutor to include in opening statement.

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¶ 52 Demiter also argues that the prosecutor committed

misconduct by describing evidence that wasn’t ultimately admitted

at trial. We agree with Demiter that evidence wasn’t presented to

support the statement that J.S. had experienced deaths in the

family. But there isn’t a showing of bad faith or prejudice to

Demiter. Thus, reversal isn’t required. See Melanson, 937 P.2d at

836.

ii. Comments About J.S.’s Debit Card

¶ 53 During opening statement, the prosecutor began telling the

jury about the transactions on J.S.’s debit card and stated that

“[J.S.] never saw her debit card again.” Demiter didn’t object to this

statement. During the trial, however, J.S. testified that her debit

card was returned to her.

¶ 54 That the prosecutor incorrectly stated that J.S. didn’t see her

debit card again was improper (assuming that the prosecutor knew

or had reason to know that the evidence at trial would show

otherwise). But similar to the prosecutor’s statements about J.S.’s

background, this fleeting statement didn’t prejudice Demiter, nor

was there any indication of bad faith on the part of the prosecutor.

Therefore, even if the incorrect statement constituted misconduct, it

25
doesn’t warrant reversal. See id. Moreover, any misleading

impression left by the prosecutor’s statement was cleared up by

J.S.’s testimony.

b. Demiter’s Cross-Examination

¶ 55 The prosecutor cross-examined Demiter about the photos he

sent to J.S.’s ex-boyfriend that showed J.S. with a penis on her

face. Demiter denied that it was his penis in the photos. Demiter

also testified that he sent the photos to J.S.’s ex-boyfriend to ask

him if it was his penis and that J.S.’s ex-boyfriend responded by

sending Demiter a picture of his penis. While continuing to ask

Demiter about his decision to send the pictures to J.S.’s ex-

boyfriend, the prosecutor asked Demiter, “[A]re you of heterosexual

orientation?” The prosecutor then asked, “And to the best of your

knowledge, [J.S.’s ex-boyfriend] is —” At that point, defense

counsel objected but the court overruled it. Demiter then stated,

“I — no idea.” And when the prosecutor repeated, “No idea?”

Demiter stated, “And if [J.S.’s ex-boyfriend] is a heterosexual or a

homosexual? No ma’am. I have no clue.”

¶ 56 A “prosecutor[] may not resort to ‘inflammatory comments’

that serve no purpose but ‘inflam[ing] the passions of the jury.’”

26
People v. McBride, 228 P.3d 216, 222 (Colo. App. 2009) (quoting

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

here, given the context, we can’t conclude that the purpose of the

prosecutor’s questioning was to inflame the passions of the jury.

Rather, it appears that the prosecutor was attempting to discern

why Demiter sent a picture of a penis (that he alleged wasn’t his) to

J.S.’s ex-boyfriend and why J.S.’s ex-boyfriend responded with a

picture of his own penis. Whether this was a proper purpose for the

question is a close call. Cf. People v. Samson, 2012 COA 167, ¶ 30

(“[B]ecause 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.”).

But at no point in his briefing does Demiter explain how the

prosecutor’s questions, even if improper, were inflammatory or

undermined the fairness of trial. And we don’t discern that it did.

Thus, based on the record, we can’t conclude that the prosecutor’s

questions warrant reversal.

c. Closing Argument

¶ 57 Two of the alleged instances of prosecutorial misconduct

occurred during the prosecutor’s closing argument. Closing

27
argument “may properly include the facts in evidence and any

reasonable inferences drawn therefrom.” Domingo-Gomez, 125 P.3d

at 1048. During closing argument, parties may “point to different

pieces of evidence and explain their significance within the case.”

Id. And while a prosecutor can’t use closing argument to “mislead

or unduly influence the jury,” the prosecutor “has wide latitude in

the language and presentation style used to obtain justice.” Id. at

1048-49.

i. Statements About Loving a Woman

¶ 58 During opening statement, the prosecutor stated, “At one

point, . . . Demiter characterize[d] these events as just loving a

woman.” Then in closing argument, the prosecutor repeatedly

stated, “These acts are not love as Mr. Demiter characterized

them . . . . These are acts of violence. These are acts of coercion.

These are acts of control, punishment, intimidation, and revenge.”

Demiter didn’t object to these statements.

¶ 59 Again, Demiter states that the comments were inflammatory

but doesn’t explain why. And we can’t discern how they were

inflammatory. In any event, Demiter doesn’t explain why this

argument isn’t a fair comment on the evidence presented at trial.

28
ii. Statements About Body Modification

¶ 60 During closing argument, defense counsel argued that it

wasn’t Demiter’s penis in the picture over J.S. because “he had his

penis pierced and he wore a . . . penis ring, and that this was done

years before this incident.” In rebuttal argument, the prosecutor

addressed this argument by referring to admitted photos of

Demiter’s penis taken after his arrest.

I would argue [the photos taken after Demiter’s
arrest] don’t show anything that I would
dignify by calling a piercing, they show a pen
superficially stuck through skin. A bizarre
position at a bizarre angle that looks red, it
looks angry, it looks inflamed. I would argue
this is prisoner body modification and
knowledge of guilt. Not a piercing.

¶ 61 Demiter objected to this statement, but the court overruled the

objection and reminded the jury that they were “the sole people to

determine what the evidence indicated.”

¶ 62 Demiter contends that the prosecutor’s reference to “prisoner

body modification” was improper because it “evokes images of

tattooed prison gangs.” We agree that the statement was improper,

but given its brevity and context, we conclude that the misconduct

was harmless.

29
¶ 63 The prosecutor made the statement in response to defense

counsel’s argument that the picture didn’t show Demiter’s penis

because his was pierced years before. And any risk of prejudice

was reduced because the jury had already heard that Demiter was

incarcerated when he testified, during direct examination, that the

defense exhibit photos of his penis showing a “piercing” were taken

at the “Routt County Jail.” Further, the prosecutor made the

specific statement “prisoner body modification” only once during

argument. Accordingly, we conclude that this statement, albeit

improper, didn’t affect Demiter’s substantial rights or undermine

the fairness of trial.

d. Cumulative Prosecutorial Misconduct

¶ 64 Demiter contends that, even if each individual instance of

purported misconduct doesn’t warrant reversal, the cumulative

prejudice of each instance of misconduct does. We disagree.

¶ 65 Although errors may be harmless or not affect the defendant’s

substantial rights in isolation, “reversal will nevertheless be

required when ‘the cumulative effect of [multiple] errors and defects

substantially affected the fairness of the trial proceedings and the

integrity of the fact-finding process.’” Howard-Walker v. People,

30
2019 CO 69, ¶ 24 (alteration in original) (quoting People v. Lucero,

615 P.2d 660, 666 (Colo. 1980)). For reversal based on cumulative

error, there must be “cumulative prejudice.” Id. at ¶ 25.

¶ 66 As analyzed above, we concluded that the prosecutor

committed limited misconduct. Although the noted statements

were improper, or arguably improper, even viewing them

collectively, reversal isn’t warranted. We reach this conclusion for

largely the same reasons that we declined to reverse based on any

individual instance of misconduct. Each instance was brief and

isolated, not the focus of counsel’s argument for conviction, and not

particularly inflammatory even when considered in combination.

Moreover, the trial court instructed the jury that they “must not be

influenced by sympathy, bias or prejudice in reaching [their]

decision.” See People v. Vialpando, 2022 CO 28, ¶ 41 (“[W]e

presume that the jury followed the court’s instructions.”).

Accordingly, we aren’t persuaded reversal is warranted.

31
D. Whether the Jury Instructions Constructively Amended the
Sexual Contact Charge

¶ 67 Next, Demiter contends that trial court’s instructions to the

jury on the unlawful sexual contact charge constructively amended

the charge. We agree but conclude that the error wasn’t plain.

1. Additional Facts

¶ 68 There are six ways in which a defendant can commit class 1

misdemeanor unlawful sexual contact. See § 18-3-404(1)(a)-(g),

C.R.S. 2025. Two of those — subsections (1)(a) and (c) — are

relevant to Demiter’s constructive amendment challenge. These

subsections provide:

(1) Any actor who knowingly subjects a victim
to any sexual contact commits unlawful sexual
contact if:

(a) The actor knows that the victim does not
consent; or

....

(c) The victim is physically helpless and the
actor knows that the victim is physically
helpless and the victim has not consented . . . .

§ 18-3-404(1)(a), (c).

¶ 69 In the complaint and information, the People charged Demiter

with two counts of unlawful sexual contact, each alleging that he

32
“unlawfully and knowingly subjected J.S. to sexual contact, while

the victim was physically helpless and the defendant knew that the

victim was physically helpless and the victim had not consented; in

violation of section 18-3-404(1)(c).” (Emphasis added.)

¶ 70 At trial, however, the court gave the jury two instructions on

unlawful sexual contact, both framing the offense as a violation of

section 18-3-404(1)(a). Instruction No.11 stated:

The elements of Unlawful Sexual Contact
(Physical Contact) are:

1. That Sean Demiter,

2. in the State of Colorado, at or about the date and
place charged,

3. knowingly,

4. subjected a person to any sexual contact,

5. knowing that the person did not consent.

(Emphasis added.) Instruction No. 12 repeated the same elements,

the only difference being that Instruction No.12 was titled “The

elements of Unlawful Sexual Contact (Ejaculation).”

¶ 71 Demiter didn’t object to either instruction during the jury

instruction conference. The jury convicted Demiter of unlawful

33
sexual contact (physical contact) (Instruction No. 11) but acquitted

him of unlawful sexual contact (ejaculation) (Instruction No. 12).

2. Legal Principles and Standard of Review

¶ 72 A sufficient information will “advise[] the defendant of the

charges he is facing so that he can adequately defend himself and

be protected from further prosecution for the same offense.”

Campbell v. People, 2020 CO 49, ¶ 44 (quoting Cervantes v. People,

715 P.2d 783, 785 (Colo. 1986)). And giving the defendant

sufficient notice of the charges against him “ensure[s] that he is not

taken by surprise by the evidence offered at trial.” Id. (citation

omitted). When a charge within the charging instrument is different

from the charge a defendant is convicted of, there is a variance. Id.

at ¶ 45. In Colorado, there are two types of variances: a simple

variance and a constructive amendment. Id. “A simple variance

‘occurs when the evidence presented at trial proves facts materially

different from those alleged in the charging document.’” Id. (quoting

People v. Smith, 2018 CO 33, ¶ 25). Reversal isn’t typically required

for a simple variance if “the proof upon which the conviction is

based corresponds to an offense that was clearly set out in the

charging instrument.” Id. Conversely, “[a] constructive amendment

34
occurs when a jury instruction ‘changes an essential element of the

charged offense and thereby alters the substance of the charging

instrument.’” Bock v. People, 2024 CO 61, ¶ 14 (quoting People v.

Rediger, 2018 CO 32, ¶ 48).

¶ 73 We review whether a variance occurred de novo. People v.

Deutsch, 2020 COA 114, ¶ 22. In the absence of an objection, we

reverse a simple variance and a constructive amendment only for

plain error. Bock, ¶ 26 (“[C]onstructive amendments are reviewed

for plain, rather than structural, error.”); see also Smith, ¶ 25 (“An

error in jury instructions, such as a simple variance, generally does

not rise to the level of plain error unless a review of the entire

record establishes a reasonable possibility that the improper

instruction contributed to the defendant’s conviction.”). “Plain error

is obvious and substantial,” and we reverse “only if the error ‘so

undermined the fundamental fairness of the trial itself so as to cast

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

Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)).

35
3. Constructive Amendment

¶ 74 Demiter contends that the jury instruction constructively

amended the sexual contact charge because it didn’t contain an

element that J.S. was physically helpless or that Demiter knew J.S.

was physically helpless. Demiter contends that without these

elements, the instruction deviated from section 18-3-404(1)(c).

¶ 75 Because the jury instruction omitted elements of the charged

offense, we agree that this constituted a constructive amendment

and that the error was obvious. But we conclude the error wasn’t

plain.

¶ 76 This error should have been obvious to the trial court. It was

clear that the charging document stated that Demiter had violated

section 18-3-404(1)(c), which states that the “victim is physically

helpless and the actor knows that the victim is physically helpless

and the victim has not consented.”

¶ 77 Although the error was obvious, the error wasn’t substantial

for three reasons. First, both the charging instrument and the jury

instruction required the prosecution to prove that J.S. didn’t

consent to the unlawful contact. Demiter, therefore, would have

had notice that evidence of consent would be produced at trial. And

36
the prosecutor’s burden of proof didn’t change with respect to this

element. Second, while the jury instruction omitted two elements of

section 18-3-404(1)(c), the prosecution introduced evidence at trial

that J.S. was passed out or unconscious when the unlawful sexual

contact occurred, which supported the charging document. And

third, the discrepancy between the charging document and the jury

instructions wouldn’t have altered Demiter’s defense. Indeed, in

closing argument, Demiter argued to the jury that the prosecutors

failed to meet their burden, that he didn’t commit the crime alleged,

and that the photos didn’t depict Demiter’s penis. And when

discussing whether there was physical contact, defense counsel

tacitly conceded J.S.’s helplessness by stating that “she was passed

out drunk on her own volition.”

¶ 78 Thus, the error wasn’t plain, and reversal isn’t warranted. Cf.

People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005) (“A jury

instruction should substantially track the language of the statute

describing the crime; a material deviation from the statute can

result in reversible plain error, depending on the facts of the case.”).

But see Rediger, ¶¶ 51-52 (The constructive amendment was plain

error because defendant wasn’t placed on notice, and “the offense

37
presented to the jury allowed it to convict [the defendant] of a crime

not charged in the information, and one for which the People’s

burden of proof was materially lessened.”).

E. Modified Unanimity Instruction

¶ 79 Demiter next contends that the trial court erred by declining

to give a modified unanimity instruction on the tampering charge.

We aren’t persuaded.

1. Additional Facts

¶ 80 Demiter was charged with one count of second degree criminal

tampering under section 18-4-506, C.R.S. 2025. “[A] person

commits the crime of second degree criminal tampering if he

tampers with property of another with intent to cause injury,

inconvenience, or annoyance to that person or to another.” Id. The

prosecution introduced evidence of several acts purportedly

committed by Demiter that could constitute tampering under this

statute, including that Demiter threw her potted plants, wrote

“whore” in her planner, spat on her van, threw her skis on the

ground, and covered her backpack in liquid soap.

38
2. Legal Principles and Standard of Review

¶ 81 Criminal defendants are entitled to a unanimous jury verdict

“with respect to the ultimate issue of the defendant’s guilt or

innocence of the crime charged” but “not with respect to alternative

means by which the crime was committed.” People v. Archuleta,

2020 CO 63M, ¶ 20 (quoting People v. Taggart, 621 P.2d 1375, 1387

n.5 (Colo. 1981)). Thus, a jury doesn’t need to “unanimously decide

‘which of several possible sets of underlying brute facts make up a

particular element’ or ‘which of several possible means the

defendant used to commit an element of the crime.’” Id. (quoting

Richardson v. United States, 526 U.S. 813, 817 (1999)). But if

evidence of multiple acts is presented, “any one of which could

constitute the offense charged, and there is a reasonable likelihood

that jurors may disagree on the act the defendant committed,” the

trial court must either provide the jury with a modified unanimity

instruction or require the prosecution to elect which transaction it

is relying on for the conviction. People v. Rivera, 56 P.3d 1155,

1159-60 (Colo. App. 2002); see also Archuleta, ¶¶ 21-22. A

modified unanimity instruction informs jurors that “to convict the

defendant, they ‘must either unanimously agree that the defendant

39
committed the same act or acts or that the defendant committed all

of the acts described by the victim and included within the time

period charged.’” Archuleta, ¶ 22 (quoting Thomas v. People, 803

P.2d 144, 153-54 (Colo. 1990)). If, however, the defendant “is

charged with engaging in a single transaction of criminal conduct”

and the prosecution proceeds on that theory, an election or

modified unanimity instruction isn’t required. Id. at ¶ 23.

¶ 82 We review a court’s failure to give a modified unanimity

instruction de novo. People v. Ryan, 2022 COA 136, ¶ 15. If the

trial court erred by failing to give a modified unanimity instruction

but the defendant also failed to request the instruction, then we

reverse only if the error was plain. See id. at ¶ 16.

3. A Modified Unanimity Instruction Wasn’t Required

¶ 83 We acknowledge that the prosecution presented evidence of

several acts that separately or together could constitute tampering.

But these acts were all part of a single transaction because, while

some of the acts occurred on different days, all the acts alleged

occurred upon, and were incident to, J.S. moving out of Demiter’s

apartment. See, e.g., Melina v. People, 161 P.3d 635, 640 (Colo.

2007) (concluding that conversations with more than one person

40
and spanning several days “may constitute a single transaction of

solicitation”); People v. Hanson, 928 P.2d 776, 779-80 (Colo. App.

1996) (concluding that the prosecutor didn’t have to specify the acts

which formed the basis of the charge because although there were

two separate confrontations, “the confrontations occurred in the

same location and within a few minutes of each other, and arose

out of the same set of circumstances and in conjunction with the

same dispute.”). Because these acts were part of one transaction,

neither an election nor a modified unanimity instruction was

required.

F. The Application of Demiter’s Presentence Confinement Credit

¶ 84 Demiter next contends that the trial court erred by applying

his PSCC only to his misdemeanor convictions. We agree.

1. Additional Facts

¶ 85 The court sentenced Demiter to jail sentences of twelve

months for unlawful sexual contact, six months for tampering, six

months for theft, and six months for unauthorized use of a financial

transaction device (misdemeanor convictions). The court specified

that the sentences for the misdemeanor convictions would run

concurrently with each other. On the identity theft conviction

41
(felony conviction), the court sentenced Demiter to five years in the

Department of Corrections. The court ordered the felony conviction

sentence to be served consecutively. At the time of sentencing,

Demiter was serving sentences for several other cases. The court

specified that the sentences for the misdemeanor convictions would

run concurrently with the sentences he was currently serving.

¶ 86 At sentencing, the court noted that Demiter had 488 days of

PSCC. The court awarded the PSCC for the misdemeanor

convictions because the sentences for those counts “were ordered

concurrent with each other and his current sentences.” But the

court declined to award PSCC to the felony conviction sentence

“because [the count] is ordered consecutive.”

2. Application

¶ 87 We review de novo whether a trial court properly denied PSCC.

Russell v. People, 2020 CO 37, ¶ 18. Under section 18-1.3-405,

C.R.S. 2025, “[a] person who is confined for an offense prior to the

imposition of sentence for said offense is entitled to credit against

the term of his or her sentence for the entire period of such

confinement.” “[A] defendant is entitled to PSCC for each day

served where there is a substantial nexus between the conduct or

42
charges for which he is confined and the sentence ultimately

imposed.” Russell, ¶ 5. But a defendant isn’t entitled to

“duplicative PSCC.” Id. Typically, “when consecutive sentences are

imposed, crediting the period of presentence confinement against

one of the sentences will assure the defendant full credit against the

total term of imprisonment.” People v. Roy, 252 P.3d 24, 29 (Colo.

App. 2010) (quoting People v. Johnson, 797 P.2d 1296, 1298 (Colo.

1990)).

¶ 88 Because neither party contests whether there was a

substantial nexus between the PSCC and the charges for which

Demiter was sentenced, we don’t address it here. Instead, we only

address whether his sentence was duplicative. In this case,

Demiter was awarded 488 days of PSCC on the sentence for the

misdemeanor convictions. But because the maximum sentence on

those four charges was twelve months and because the

misdemeanor conviction sentences were running concurrently,

Demiter received, at most, 365 days of PSCC rather than the full

488 to which he was entitled. Because the maximum amount of

PSCC that could apply to the sentence for the misdemeanor

convictions was 365 days, the trial court necessarily deprived

43
Demiter of some PSCC to which he was entitled. See Roy, 252 P.3d

at 28 (“Where two or more charges form multiple bases for a

defendant’s presentence confinement, the defendant is entitled to

credit against each sentence imposed on those charges, provided

that the credit would not be duplicative.”); see also Johnson, 797

P.2d at 1299 (trial court must ensure that a defendant receives full

but not duplicative PSCC). Thus, the trial court erred. On remand,

the court should apply any remaining PSCC against the identity

theft sentence.

III. Disposition

¶ 89 The judgment is affirmed, the sentence is reversed in part, and

the case is remanded with instructions for the court to amend the

mittimus as described above.

JUDGE KUHN and JUDGE SCHUTZ concur.

44