Peo v. Archuleta

23CA1544 Peo v Archuleta 04-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1544
Lincoln County District Court No. 20CR118
Honorable H. Clay Hurst, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip Archuleta,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE GROVE
Yun, J., concur
Taubman*, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 30, 2026

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

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

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

conviction after a jury found him guilty of second degree assault.

We affirm.

I. Background

¶2 A reasonable jury could have found the following facts based

on the evidence presented at trial.

¶3 Archuleta was housed on the second floor of the Limon

Correctional Facility. During a routine search of his cell by

correctional officers Stephen Van Camp, Steven Zamora, and

Emanuel Lopez, Archuleta was ordered to go downstairs to the first

floor. According to Zamora, Archuleta initially refused to comply

and threatened to “beat [up] all three” officers.

¶4 Archuleta eventually went downstairs. The three officers

followed and ordered him to turn around to be restrained. Zamora

testified that Archuleta again refused to comply, prompting Van

Camp to pepper spray Archuleta in the face. Archuleta then

attempted “to deliver closed-hand strikes to Officer Van Camp.”

Van Camp and Zamora responded by pepper spraying him again.

Van Camp then grabbed Archuleta around the waist, and the two

1
struggled for several seconds before Archuleta shoved Van Camp

into a trash can and to the ground.

¶5 According to Archuleta, however, he never punched, pushed,

or otherwise applied physical force to Van Camp. Rather, he

contends that he was flailing his arms blindly as the officers pepper

sprayed him, and that Van Camp stumbled into the trash can and

fell because of the commotion. In any event, shortly thereafter,

Archuleta dropped to the floor, and the officers restrained him. The

entire incident was captured on surveillance video.

¶6 Archuleta was charged with second degree assault against Van

Camp under section 18-3-203(1)(f), C.R.S. 2025.1 The jury found

him guilty as charged, and he was sentenced to eight years in the

custody of the Department of Corrections.

¶7 Archuleta now appeals, arguing that (1) the evidence

presented at trial was insufficient to sustain his conviction; (2) the

prosecution committed misconduct during closing argument; (3) the

1 Archuleta was also charged with second degree assault against

Van Camp under section 18-3-203(1)(c), C.R.S. 2025, but this
charge was later dismissed on the prosecution’s motion.

2
court gave erroneous jury instructions; and (4) the cumulative effect

of these errors deprived him of a fair trial.

II. Sufficiency of the Evidence

¶8 Archuleta contends that the evidence presented at trial was

insufficient to sustain his second degree assault conviction. We

disagree.

A. Standard of Review and Applicable Law

¶9 Archuleta’s contention must overcome a “daunting standard”

because “we construe the record in the light most favorable to the

prosecution to determine whether any rational juror could have

found guilt proven beyond a reasonable doubt.” People v. McBride,

228 P.3d 216, 226 (Colo. App. 2009). We review sufficiency of the

evidence claims de novo. McCoy v. People, 2019 CO 44, ¶ 19.

¶ 10 As relevant here, a person commits second degree assault if,

¶ 11 while lawfully confined or in custody as a result of being

charged with or convicted of a crime . . . he or she knowingly and

violently applies physical force against a person engaged in the

performance of his or her duties while employed by or under

contract with a detention facility.

3
¶ 12 § 18-3-203(1)(f). Archuleta contests the sufficiency of the

evidence supporting two elements, arguing that the prosecution

failed to prove that (1) he applied physical force, and (2) he did so

while confined as a result of being convicted of a crime.

B. Physical Force

¶ 13 The record contains sufficient evidence to support a finding

that Archuleta applied physical force against Van Camp.

¶ 14 Only two witnesses testified at trial: a Colorado Department of

Corrections investigator, who authenticated the surveillance

footage, and Zamora, who provided the only eyewitness account.

¶ 15 We are “in the same position as the trial court” to review video

evidence. People v. Ramadon, 2013 CO 68, ¶ 21. Our independent

review of the surveillance footage supports the jury’s finding that

Archuleta “applied physical force” against Van Camp. Among other

things, the footage shows Archuleta (1) swinging at Van Camp with

a closed fist at least twice; (2) tussling with Van Camp after Van

Camp grabs Archuleta around the waist; and (3) pushing Van Camp

into a trash can, after which Van Camp falls to the floor. In the

screen capture from the video below, Archuleta — who is wearing a

white shirt — can be seen with his arms extended and still in

4
contact with Van Camp as Van Camp falls toward the trash can

and the floor.

Screen Capture of the Incident from Surveillance Video

This is sufficient evidence for a reasonable jury to conclude

Archuleta “applied physical force.” See People v. Schoondermark,

699 P.2d 411, 414 (Colo. 1985) (officer testimony that the

defendant’s “arms came in contact” with the officers was sufficient

to support a conviction of second degree assault against a peace

officer).

5
C. Criminal Conviction

¶ 16 We likewise conclude that the evidence was sufficient to

support the jury’s finding that Archuleta was lawfully confined “as a

result of having been convicted of a crime.”2

¶ 17 At trial, the parties stipulated that “Mr. Archuleta was lawfully

confined in a detention facility,” specifically, “Limon Correctional

Facility.” In addition, at defense counsel’s request, the district

court instructed the jury that it “may not assume that Mr.

Archuleta is more likely to be guilty of the charged offense because

he was incarcerated at the time the allegations occurred.” Together,

the parties’ stipulation and the court’s instruction permitted the

jury to reasonably infer that Archuleta’s lawful confinement

resulted from a criminal conviction. Cf. Martin v. People, 738 P.2d

789, 794 (Colo. 1987) (evidence of the defendant’s prior conviction

was relevant to establish lawful confinement).

¶ 18 Further reinforcing this inference, the prosecutor, defense

counsel, and both witnesses repeatedly referred to those

2 The People contend that Archuleta invited or waived any error.

Because we conclude sufficient evidence supports the jury’s finding
that Archuleta was lawfully confined as a result of having been
convicted of a crime, we do not address this argument.

6
incarcerated at Limon Correctional Facility as “offenders” and to

Archuleta specifically as “Offender Archuleta.” Although no witness

explicitly said that Archuleta was lawfully confined due to a

conviction, the consistent use of the term “offender” supports a

reasonable inference that Archuleta, like the other inmates, was

housed in a correctional facility as a result of a prior criminal

conviction.

¶ 19 Finally, defense counsel questioned prospective jurors about

Archuleta’s incarceration when the charged offense occurred.

During voir dire, defense counsel asked jurors whether anyone

believed Archuleta was guilty because “he was serving a sentence in

the Department of Corrections when this happened.” This

admission demonstrates the lack of real dispute over the fact of

Archuleta’s prior conviction.

¶ 20 Accordingly, the jury could reasonably infer that Archuleta

was incarcerated at the Limon Correctional Facility “as a result of

having been convicted of a crime.” Therefore, the evidence was

sufficient to sustain Archuleta’s conviction. See People v. Grant,

174 P.3d 798, 812 (Colo. App. 2007) (“If there is evidence upon

7
which one may reasonably infer an element of the crime, the

evidence is sufficient to sustain that element.”).

III. Prosecutorial Misconduct

¶ 21 Archuleta contends that the district court plainly erred by

allowing the prosecutor to misstate the law on the physical force

element of second degree assault. We conclude that although the

prosecutor’s statements may have been improper, the error is not

substantial enough to cast doubt on the reliability of the conviction.

Therefore, the error does not require reversal under plain error

review.

A. Standard of Review and Applicable Law

¶ 22 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, they may argue facts in evidence, reasonable inferences

drawn from those facts, and the law on which the jury has been

instructed. Id. At the same time, prosecutors have a fundamental

duty to “avoid comments that could mislead or prejudice the jury.”

Id. at 1049. As relevant here, a prosecutor may not distort the

elements of the charged offense. McBride, 228 P.3d at 224.

8
¶ 23 We analyze claims of prosecutorial misconduct by determining

whether the conduct was improper based on the totality of the

circumstances and whether the conduct warrants reversal under

the applicable standard of review. People v. Nardine, 2016 COA 85,

¶ 36. When, as here, defense counsel does not object to the

challenged conduct at trial, we reverse only if the conduct rises to

the level of plain error. Id. at ¶ 37. To rise to the level of plain

error, prosecutorial misconduct must be flagrant or glaring or

tremendously improper and so undermine the fundamental fairness

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

judgment of conviction. People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005). “Prosecutorial

misconduct in closing argument rarely constitutes plain error.”

People v. Smalley, 2015 COA 140, ¶ 37.

B. Additional Background

¶ 24 Before closing arguments, the district court instructed the jury

on the six elements of second degree assault under section 18-3-

203(1)(f). As relevant here, the jurors were instructed that they

would need to find that Archuleta “knowingly and violently . . .

applied physical force” against Van Camp to find him guilty.

9
¶ 25 In closing argument, the prosecutor reviewed the evidence

against Archuleta as it applied to each element, telling the jurors

that there “must be the application of physical force against [Officer]

Van Camp,” and later explained why Archuleta’s actions were both

knowing and violent:

Swinging closed fists, landing or not, that’s
violent. Funny story: Those elements didn’t
say any lack of punch. Didn’t say that had to
be (indiscernible). Knowingly and violently. If
closing your fist and swing [sic] on an officer
isn’t violent, that’s a determination you’ll have
to make.

¶ 26 Defense counsel did not object but addressed this argument in

his own closing, saying that “[the prosecutor] indicated [that]

attempted contact equals violence” while countering that “[j]ust

because he swung doesn’t equal exact violence.” Defense counsel

reiterated that “[t]he jury instructions here specify that [Archuleta]

must have knowingly and violently applied physical force” against

Van Camp. Defense counsel also rhetorically asked the jury, “At

what point in that video does Mr. Archuleta make contact?”

¶ 27 The prosecutor responded to this argument in rebuttal closing,

returning to the elements of second degree assault:

10
The defense’s theory: Trust the argument, not
the evidence. Decide the case based on
implications of arguments, not the evidence.
This is not a case charged on excessive use of
force, wrong form of use of force, whether or
not somebody was trained or not trained or
just could have made better choices. This is a
charge against Mr. Archuleta. Did he
knowingly and violently act towards a member
of staff? That’s it. Didn’t have to punch,
didn’t have to kick, didn’t have to stab, didn’t
have to shoot. He had to knowingly and
violently act towards a member of staff. It’s
very not specific that the defense seems to
argue.

It is about Mr. Archuleta: Did he knowingly
and violently while in custody, confined to the
detention facility, do what he shouldn’t have
done against a staff member, any staff
member?

That’s the choice. That’s the question. It’s the
one question applied against these six parts of
that question. That’s it. You don’t have to
make decisions on everything else.

Again, defense counsel did not object.

C. Analysis

¶ 28 Archuleta contends that the prosecutor misstated the law by

telling the jury that the “physical force” element of the second

degree assault charge could be satisfied without actual physical

contact. We need not consider the propriety of this statement or

the obviousness of any error because, in light of all the evidence

11
presented at trial, any misconduct did not so undermine the

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

reliability of the judgment of conviction. We reach this conclusion

for three reasons.

¶ 29 First, when reviewed in context, the prosecutor’s statements

implying that physical contact may not be necessary could have

been understood as a reference to the “violently” element of second

degree assault. Indeed, in the excerpts above, the prosecutor first

told the jury that there “must be the application of physical force

against [Officer] Van Camp” and then, three lines of transcript later,

appeared to argue that Archuleta acted violently by “swinging

closed fists,” even if those punches did not make contact with Van

Camp. While the juxtaposition of these statements may have

muddled the distinction between the elements, we must accord the

prosecution the benefit of the doubt. See 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.”).

12
¶ 30 Second, the prosecutor himself told the jury during closing

that Archuleta had to have applied physical force to be found guilty,

and the district court correctly instructed the jury that second

degree assault requires the application of physical force. It did so

twice, before closing arguments and in the instruction packet

distributed after closing argument. People v. Cuellar, 2023 COA 20,

¶¶ 76-77 (prosecutor’s error in closing argument was harmless in

part because of the court’s proper instructions). Further, in his

own closing argument, defense counsel rebutted any improper

statement by the prosecutor by emphasizing that the “physical

force” element does require physical contact.

¶ 31 Archuleta maintains that, because the court did not define

“applied physical force,” the prosecutor’s argument was the only

definition the jury received. However, we assume that “[p]ersons of

reasonable intelligence” use common sense to understand the

“applied physical force” element. Schoondermark, 699 P.2d at 416.

A reasonable juror would understand that applying physical force

requires actual physical contact, especially considering the totality

of the circumstances (i.e., the prosecutor’s correct statement that

Archuleta had to apply physical force, the court’s correct

13
instruction that the application of physical force was required, and

the defense’s closing argument that emphasized physical force must

include contact).

¶ 32 Third, our review of the record reveals overwhelming evidence

that Archuleta did apply physical force to Van Camp. See People v.

Fichtner, 869 P.2d 539, 543 (Colo. 1994) (“[I]f there is overwhelming

evidence to support the conviction, we will not reverse it under a

plain error standard.”). As discussed, the central evidence in this

case was the surveillance video. The footage plainly shows

Archuleta applying physical force to Van Camp when he shoved him

into the trash can. See Schoondermark, 699 P.2d at 414 (holding

that evidence that “defendant’s arms came in contact with [the

arresting officers] during [his] various struggles” with the officers

was sufficient to support a finding that he had applied physical

force). Thus, even if the jury were to conclude that Archuleta’s

punches earlier in the confrontation did not make contact, and even

if it were to also find that Archuleta was not applying physical force

when he and Van Camp began tussling, the shove that propelled

Van Camp into the trash can and then onto the floor provides

overwhelming evidence that Archuleta applied physical force.

14
¶ 33 Under these circumstances, even if the prosecutor could have

better distinguished between the elements of the offense, his failure

to do so does not convince us that the error was substantial enough

to cast serious doubt on the reliability of the verdict. Therefore, any

misconduct does not warrant reversal under plain error review.

IV. Jury Instruction

¶ 34 Archuleta also contends that the district court erred by

omitting part of the jury instruction for second degree assault. We

agree but conclude that the error does not require reversal under

plain error review.

A. Additional Background

¶ 35 The district court instructed the jury on the elements of

second degree assault as follows:

1. That Mr. Phillip Archuleta,

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

3. knowingly and violently,

4. while lawfully confined or in custody,

5. applied physical force against the person of
a peace officer engaged in the performance of
his duties while employed by or under contract
with a detention facility, and

15
6. the defendant knew, or reasonably should
have known, that the victim was a . . . person
engaged in the performance of his duties while
employed by or under contract with a
detention facility.

(Emphasis added.) Defense counsel did not object to the

instructions.

¶ 36 In contrast to this instruction, the complaint alleged that

Archuleta knowingly and violently applied physical force against

Van Camp “while lawfully confined or in custody as a result of

having been convicted of a crime.” (Emphasis added.) The italicized

language — omitted from the instruction — mirrors section

18-3-203(1)(f), which requires a defendant to be “lawfully confined

or in custody as a result of being charged with or convicted of a

crime.” This language also appears in the model jury instruction.

See COLJI-Crim. 3-2:14 (2025) (“The elements of the crime of

assault in the second degree” include “while lawfully confined or in

custody as a result of being charged with or convicted of a crime.”).

¶ 37 The district court has a duty to correctly instruct the jury on

all matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001).

We review jury instructions de novo to determine whether an

instruction accurately informed the jury of the governing law.

16
People v. Trujillo, 2018 COA 12, ¶ 11. When, as here, defense

counsel did not object to an instruction challenged on appeal, we

will reverse only if the instruction amounts to plain error. See

Hagos v. People, 2012 CO 63, ¶ 14. “[R]eversal under a plain error

standard requires a defendant to ‘demonstrate not only that the

instruction affected a substantial right, but also that the record

reveals a reasonable possibility that the error contributed to his

conviction.’” Garcia, 28 P.3d at 344 (citation omitted).

B. Analysis

¶ 38 Because defense counsel did not object to the instruction, we

review this issue for plain error.3 See People v. Rediger, 2018 CO

32, ¶ 40.

¶ 39 The elemental jury instruction for second degree assault was

incomplete because it told the jurors that they could find Archuleta

3 We reject the People’s contention that Archuleta waived his claim

or invited the error. The prosecutor drafted the jury instruction
that omitted the phrase “as a result of being convicted of a crime”
from the elements of second degree assault. That defense counsel
agreed to the instruction does not indicate that Archuleta injected
the error (as required for invited error) or intentionally relinquished
a known right or privilege (as required for waiver). See People v.
Rediger, 2018 CO 32, ¶¶ 37, 42 (defendant did not waive or invite
error when he “generally acquiesced to the jury instructions”
tendered by the People).

17
guilty if they concluded that he was “lawfully confined or in

custody” while omitting the phrase “as a result of having been

convicted of a crime.” As a result, the instruction was erroneous.

See id. at ¶¶ 49-52 (elemental instruction was erroneous when it

did not track the statute cited in the criminal information).

However, the record does not reveal “a reasonable possibility that

the error contributed to [Archuleta’s] conviction.” Garcia, 28 P.3d

at 344 (citation omitted). To the contrary, and as we have already

discussed, there was no real dispute that Archuleta was confined at

the Limon Correctional Facility as a result of having been convicted

of a crime.

¶ 40 Accordingly, we conclude the error does not warrant reversal

under plain error review. See People v. Miller, 113 P.3d 743, 750

(Colo. 2005) (“[A]n erroneous jury instruction does not normally

constitute plain error where the issue is not contested at trial or

where the record contains overwhelming evidence of the defendant’s

guilt.”).

18
V. Cumulative Error

¶ 41 Lastly, Archuleta contends that the cumulative effect of the

alleged errors deprived him of a fair trial, thus requiring reversal of

his conviction. We are not persuaded.

¶ 42 We assumed one error in the prosecutor’s closing argument,

concluding that it was not plain, and identified one instructional

error that was also not plain. In light of the strong evidence of

Archuleta’s guilt, we are not persuaded that the cumulative effect of

these errors deprived him of a fair trial. See Howard-Walker v.

People, 2019 CO 69, ¶ 33.

VI. Disposition

¶ 43 We affirm the judgment of conviction.

JUDGE YUN concurs.

JUDGE TAUBMAN dissents.

19
JUDGE TAUBMAN, dissenting.

¶ 44 “Didn’t have to punch, didn’t have to kick, didn’t have to stab,

didn’t have to shoot.” With this refrain, the prosecution repeatedly

argued in closing that defendant, Phillip Archuleta, could be

convicted of second degree assault without the actual application of

physical force. In doing so, the prosecution “eviscerated a key legal

element” and contravened Colorado Supreme Court precedent.

People v. McBride, 228 P.3d 216, 225 (Colo. App. 2009). Rather

than applying the evidence to the statute, the prosecutor sought to

make the statute fit the evidence. This was a “foul” blow that

undermined the fundamental fairness of the trial. Berger v. United

States, 295 U.S. 78, 88 (1935). In my view, this error was plainly

improper and casts doubt on the reliability of the conviction. I

would therefore reverse because the prosecutor’s substantial

misstatements constituted plain error.

¶ 45 I agree that there is sufficient evidence to support the jury’s

finding that Archuleta applied physical force, but not for the


Because I would reverse, I do not address cumulative error.

20
reasons stated by the majority. In my view, the security footage is

ambiguous and subject to multiple interpretations.

¶ 46 For these reasons, I respectfully dissent.

I. Prosecutorial Misconduct

¶ 47 Appropriate prosecutorial advocacy has limits. While

prosecutors are “free to strike hard blows,” they are “not at liberty

to strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048

(Colo. 2005) (quoting Wilson v. People, 743 P.2d 415, 418 (Colo.

1987), in turn quoting Berger, 295 U.S. at 88). Although

prosecutors may use every legitimate means to bring about a just

conviction, they may not use improper methods designed to obtain

an unjust result. People v. Buckner, 2022 COA 14, ¶ 19, 509 P.3d

452, 458. Accordingly, prosecutors have a “fundamental duty” to

avoid comments that could mislead the jury. McBride, 228 P.3d at

221. As relevant here, prosecutors cannot misstate the law or

distort key elements of the charged offense. Id. at 224.

¶ 48 Second degree assault requires that a defendant “applies

physical force” against the victim. § 18-3-203(1)(f), C.R.S. 2025.

The statute does not require “the infliction of either injury or pain,”

nor does it specify “the magnitude of the force which is proscribed.”

21
People v. Schoondermark, 699 P.2d 411, 414 (Colo. 1985). The

statute does require, however, “the application of force rather than

a mere attempt to apply force.” Id. at 415.

A. Distortion of the Physical Force Element

¶ 49 Throughout closing and rebuttal, the prosecutor repeatedly

emphasized to the jury that the application of physical force did not

require actual physical contact:

(1) “Swinging closed fists, landing or not, that’s violent.

Funny story: Those elements didn’t say any lack of

punch. Didn’t say that had to be (indiscernible).

Knowingly and violently. If closing your fist and

swing[ing] on an officer isn’t violent, that’s a

determination you’ll have to make.”

(2) “The man has to raise his arm, ball his fist, not follow

directives and swing punches.”

(3) “This is a charge against Mr. Archuleta. Did he

knowingly and violently act towards a member of staff?

That’s it. Didn’t have to punch, didn’t have to kick,

didn’t have to stab, didn’t have to shoot. He had to

22
knowingly and violently act towards a member of staff.

It’s very not specific that the defense seems to argue.”

(4) “Did he knowingly and violently while in custody,

confined to the detention facility, do what he shouldn’t

have done against a staff member, any staff member?”

¶ 50 By arguing during closing that “[s]winging closed fists, landing

or not,” was sufficient to convict, the prosecutor misstated the law.

The prosecutor’s statements during rebuttal further misled the jury.

By arguing in rebuttal that Archuleta “[d]idn’t have to punch, didn’t

have to kick, didn’t have to stab, didn’t have to shoot,” but only had

to “do what he shouldn’t have done against a staff member,” the

prosecutor effectively eliminated the application of physical force

element from the charged crime.

¶ 51 Aside from these erroneous statements, the prosecutor said

nothing about the application of physical force in closing or rebuttal

that could have corrected the jury’s understanding of the element.

Taken as a whole, the prosecutor’s arguments suggested to the jury

that second degree assault required only “a mere attempt to apply

force,” Schoondermark, 699 P.2d at 415 — “an obvious

23
misstatement” of the physical force element, which was a “central

focus of this trial.” McBride, 228 P.3d at 225.

¶ 52 While it is possible the prosecutor intended these statements

to reference the “violently” element of second degree assault, that

does not ameliorate their prejudicial impact. Even according the

prosecution the benefit of the doubt, these remarks were not

“ambiguous” or “simply inartful” — the misstatements elided a

statutory requirement and therefore misled the jury. People v.

Samson, 2012 COA 167, ¶ 30, 302 P.3d 311, 317.

¶ 53 A prosecutor may not misstate the law. People v. Payne, 2019

COA 167, ¶ 46, 461 P.3d 630, 642. The prosecutor’s final

statements to the jury in closing and rebuttal arguments did exactly

that. In my view, this was plainly improper.

B. Plain Error

¶ 54 Because Archuleta’s counsel did not object at trial, reversal is

not warranted in the absence of plain error. See Buckner, ¶ 43, 509

P.3d at 461. Plain error must be both obvious and substantial. Id.

For an error to be obvious, it must contravene a clear statutory

command, a well-settled legal principle, or Colorado case law. Id.

An error is substantial if it “so undermine[s] the fundamental

24
fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction.” Id.

¶ 55 While prosecutorial misconduct during closing argument

rarely amounts to plain error, some misconduct is so flagrantly,

glaringly, or tremendously improper that reversal is warranted.

Domingo-Gomez, 125 P.3d at 1053; see, e.g., Wend v. People, 235

P.3d 1089, 1099 (Colo. 2010); Wilson, 743 P.2d at 421; Buckner,

¶ 55, 509 P.3d at 463; People v. Koper, 2018 COA 137, ¶ 50, 488

P.3d 409, 418; People v. Nardine, 2016 COA 85, ¶ 66, 409 P.3d 441,

454; McBride, 228 P.3d at 226; People v. Walters, 148 P.3d 331, 337

(Colo. App. 2006). In my view, this is one of those cases; although

reversal based on prosecutorial misconduct during closing

argument does not occur frequently, these cases demonstrate that

such prejudicial misconduct may warrant reversal in appropriate

cases.

¶ 56 The error here was obvious. The prosecutor’s comments

“eviscerated a key legal element” of second degree assault by

suggesting that the application of physical force was unnecessary.

McBride, 228 P.3d at 225. This violated section 18-3-203(1)(f) and

Schoondermark’s holding that attempted physical force is

25
insufficient under the statute. The error was therefore obvious

because it contravened “a clear statutory command.” Buckner,

¶ 43, 509 P.3d at 461.

¶ 57 The error was also substantial. See id. The evidence against

Archuleta was “not overwhelming.” Id. at ¶ 48, 509 P.3d at 462; see

Walters, 148 P.3d at 337. At trial, the prosecution only presented

two witnesses. The first introduced the surveillance video. Officer

Zamora was the other witness. Although three corrections officers

were involved in the incident — and at least a dozen inmates were

on the floor when it happened — Officer Zamora provided the only

eyewitness testimony. Notably, on cross-examination, he recanted

his testimony that he saw “Mr. Van Camp punched in the face”

when confronted with his report written on the day of the incident.

Officer Zamora ultimately admitted that Archuleta only “attempted”

to punch Officer Stephen Van Camp, testifying, “I didn’t see him

land the punch.”

¶ 58 Therefore, the only affirmative evidence of Archuleta’s guilt

was the surveillance video itself. However, this video is subject to at

least three different interpretations. According to Archuleta, the

video shows him attempting to punch Van Camp but never making

26
contact. According to the People, the video shows that Archuleta

grabbed Van Camp around the shoulders and torso, punched him,

and then pushed Van Camp into a trash can. According to the

majority, the video shows that Archuleta swung at Van Camp with a

closed fist twice, tussled with him, and then pushed Van Camp into

a trash can. Meanwhile, the prosecutor’s closing arguments relied

on the attempted punch and never asserted that Archuleta pushed

Van Camp into the trash can. These differing interpretations

suggest that the video is ambiguous.

¶ 59 In my view, it is not apparent from the video that Archuleta

ever punched or pushed Van Camp. The portion of the video in

which Archuleta is close enough to inflict physical force on Van

Camp is less than ten seconds, during which a flurry of movement

makes it difficult to follow, especially due to the grainy, stop-motion

quality of the video. The jury asked to watch the video “closer and

then a second time in slow motion” during deliberations, suggesting

it found the footage ambiguous. The court denied that request,

only permitting the jury to watch the video again once at its normal

speed. Because the jury could not slow down or pause the video, I

do not believe it is appropriate for us to do so either. See Auman v.

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People, 109 P.3d 647, 666 (Colo. 2005) (“The plain error standard of

review requires us to focus on the quantum and certainty of

evidence presented at trial . . . .” (emphasis added)). Viewing the

video at full speed without pause, it is unclear whether Archuleta

ever applied violent physical force against Van Camp.

¶ 60 Likewise, the video does not indicate that Archuleta applied

any other form of violent physical force against Van Camp. At one

point, Archuleta put his arms around Van Camp after Van Camp

grabbed him around the waist. While this may constitute physical

force, it does not appear violent, as required under section 18-3-

203(1)(f). See Schoondermark, 699 P.2d at 416 (defining the violent

application of physical force as the “abnormally sudden and intense

use of physical strength against a peace officer”). Unlike in

Schoondermark, Archuleta does not concede that putting his arms

around Van Camp was violent. Id. at 414. Nor did the prosecutor

argue that this conduct was violent or constituted the application of

physical force. See In re Custody of C.C.R.S., 872 P.2d 1337, 1343

(Colo. App. 1993) (“[A]ppellate courts will not consider issues,

arguments, or theories not previously presented in trial

proceedings.”), aff’d, 892 P.2d 246 (Colo. 1995). In closing, the

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prosecutor relied solely on the alleged attempted punch to establish

knowing and violent physical force and made no argument that

Archuleta’s act of putting his arms around Van Camp satisfied that

standard.

¶ 61 Therefore, because the video was the only evidence against

Archuleta, and it was ambiguous, the evidence against Archuleta

was not overwhelming. See Buckner, ¶ 53, 509 P.3d at 463. When

the evidence is close, “the prosecutor’s argument assumes greater

significance and weighs more heavily on the jury’s decision than it

might otherwise.” Id. This is especially true when the prosecutor’s

improper argument concerns the precise issue where the evidence

is weakest. McBride, 228 P.3d at 226 (finding plain error where the

prosecutor distorted the element that was the “closest issue” at trial

when “the proof of this element was not so airtight as to eliminate

any possible prejudice”). Indeed, whether Archuleta applied

physical force was the focus of Officer Zamora’s testimony and the

theme of each party’s closing argument. The prosecutor’s distortion

of the physical force element went directly to this close evidentiary

issue, amplifying its prejudice. See id.

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¶ 62 Moreover, the district court did not provide the jury with any

instruction to minimize the impact of the improper statements.

While the district court correctly instructed the jury that second

degree assault requires the application of physical force, it did not

define “physical force.” § 18-3-203(1)(f). While ordinarily,

“[p]ersons of reasonable intelligence” would understand that

physical force requires actual physical contact, Schoondermark, 699

P.2d at 416, the prosecutor provided the jury with an erroneous

definition that supplanted common sense. Cf. Payne, ¶ 18, 461

P.3d at 636 (trial court need not provide a definitional instruction

unless the jury indicates “confusion about the meaning of a

statutory term”).

¶ 63 The district court did not provide a curative instruction to

ameliorate the prejudicial impact of the prosecution’s

misstatements of the law. See Wend, 235 P.3d at 1098; Harris v.

People, 888 P.2d 259, 268-69 (Colo. 1995) (finding plain error where

“there was no admonition from the judge to the jury . . . which

could have negated or counterbalanced the improper remarks”).

Although the court instructed the jury that it was the court’s role

alone to decide the applicable rules of law, “[i]t would defy common

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sense . . . to believe that this instruction was sufficient to neutralize

the impact of the prosecutor’s improper remarks during

summation.” Wilson, 743 P.2d at 420-21.

¶ 64 In addition, the frequency and timing of the improper

statements exacerbated their prejudicial effect. The prosecutor

“continually stressed the theme” that the application of physical

force did not require physical contact during closing argument and

especially during rebuttal closing argument. Wend, 235 P.3d at

1098. The “pervasive” nature of the misconduct “casts serious

doubt on the reliability of the verdict.” Nardine, ¶ 66, 409 P.3d at

454; see Harris, 888 P.2d at 268 (finding plain error when “the

prosecutor’s comments were repeated over the course of the entire

closing argument”).

¶ 65 Further, the timing of the prosecutor’s most prejudicial

remarks — delivered during rebuttal — likely exacerbated their

impact. See Buckner, ¶ 54, 509 P.3d at 463. Because these

remarks were made in rebuttal, defense counsel had no opportunity

to respond. Additionally, “[r]ebuttal closing is the last thing a juror

hears from counsel before deliberating, and it is therefore foremost

in their thoughts.” Domingo-Gomez, 125 P.3d at 1052.

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¶ 66 Finally, the trial itself lasted only two days, with all the

evidence presented in a single afternoon. The brevity of the trial

meant that the prosecutorial misconduct comprised a larger

proportion of the overall proceedings, amplifying its effect. Cf.

People v. Vialpando, 2022 CO 28, ¶ 33, 512 P.3d 106, 114 (“[A]

shorter trial may compound the impact of any errors . . . .”).

¶ 67 Therefore, because the verdict hinged on whether Archuleta

applied physical force, the prosecutor’s obvious misstatement of

this element undermined the fundamental fairness of the trial and

cast doubt on the reliability of the jury’s verdict. Accordingly, I

would reverse Archuleta’s conviction.

II. Sufficiency of the Evidence of Physical Force

¶ 68 The evidence sufficed to support the jury’s finding that

Archuleta applied physical force against Van Camp. However, I do

not believe that the video definitively shows that Archuleta punched

or pushed Van Camp. Rather, as I explained above, the evidence

was close. Further, I disagree with the majority’s sufficiency

analysis for two reasons.

¶ 69 First, the majority necessarily relies on the video, the only

inculpatory evidence against Archuleta. However, in my view, its

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reliance on People v. Ramadon, 2013 CO 68, ¶ 21, 314 P.3d 836,

843, is misplaced. There, the supreme court reviewed a video in

addressing whether the defendant’s statements to a police officer in

a criminal case should be suppressed. The court did not note any

differences in the parties’ views regarding the interpretation of the

video. Here, in contrast, as noted above, the parties and the

majority present three distinct interpretations of the video, making

reliance on it of uncertain value.

¶ 70 Second, the majority focuses on a freeze-frame of the video to

support its conclusion that Archuleta pushed Van Camp into a

trash can. However, as noted above, the district court denied the

jury’s request to review the video in slow motion. I do not think our

analysis of the sufficiency of the evidence should be predicated on a

view of the incident that was denied to the jury. Indeed, viewing the

video in real time, I think it is difficult to determine exactly what

happened, especially since the incident occurred in just a matter of

seconds. Absent other evidence against Archuleta, I believe there

was barely sufficient evidence to support his conviction.

¶ 71 To illustrate, the surveillance video shows Archuleta swinging

his arms at Van Camp before Van Camp grabbed Archuleta around

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the waist. A brief scuffle ensued, during which Archuleta and Van

Camp grappled with each other for seconds. The scuffle ended with

Van Camp falling to the floor.

¶ 72 While the video is ambiguous, a reasonable jury, viewing this

evidence in the light most favorable to the prosecution, could infer

that Archuleta applied physical force against Van Camp by

participating in a scuffle that resulted in Van Camp falling to the

ground. Cf. Schoondermark, 699 P.2d at 414-15 (finding sufficient

evidence to support a defendant’s conviction of second degree

assault where the defendant “struggled violently” against the

officers who restrained him, while noting that the defendant

basically conceded his conduct was violent).

¶ 73 Accordingly, in my view, Archuleta’s conviction should be

reversed and the case remanded for a new trial.

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