Peo v. McMurray

23CA0221 Peo v McMurray 12-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0221
City and County of Broomfield District Court No. 21CR68
Honorable Sean Finn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Douglas McMurray,

Defendant-Appellant.

JUDGMENT AFFIRMED

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

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

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Anthony Douglas McMurray appeals the judgment of

conviction entered on a jury verdict finding him guilty of sexual

exploitation of a child. We affirm McMurray’s conviction.

I. Background

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

on the evidence introduced at trial.

¶3 K.D., who was seventeen at the time, met Ever Berumen

through social media. She and Berumen arranged to meet in

person for the first time one night in February 2021. That night,

Berumen asked two of his friends, including McMurray, to pick up

K.D. at her home. While in the car, McMurray texted K.D. to ask

whether she was a high school senior, what she did for fun, and if

she drank or smoked. K.D. responded by text that she was a

junior, she liked to read, and she smoked but was not a drinker.

K.D. and McMurray met Berumen at a fast food restaurant, and the

three of them drove to Berumen’s apartment. After a few hours,

Berumen and K.D. went into the bedroom while McMurray was in

another room. K.D. and Berumen engaged in consensual sex. After

having sex with K.D., Berumen invited McMurray into the bedroom,

where McMurray also had sex with K.D. During the encounter,

1
Berumen video recorded McMurray and K.D. on his phone.

Berumen told McMurray to “put on a show” for the video.

¶4 K.D. got dressed and Berumen called an Uber to drive her

home. Once home, K.D. told her brother and mother that she had

been sexually assaulted, and her family called the police. Shortly

afterwards, K.D.’s brother sent McMurray an accusatory text

message. A few hours later, K.D. reported the assault to a police

officer and showed him the text messages that McMurray had sent

her while they were driving to meet up with Berumen.

¶5 The police detained McMurray, questioned him, and seized his

phone. During his interview with a detective, McMurray said that

he had engaged in sex with K.D. at Berumen’s apartment, Berumen

video recorded K.D. and McMurray having sex, Berumen texted the

video to McMurray, and the video was still stored on McMurray’s

phone. In addition, McMurray consented to a forensic download of

his phone. The prosecution charged McMurray with one count of

sexual assault – victim incapable of appraising the nature of the

victim’s conduct and one count of sexual exploitation of a child.

The jury acquitted him of sexual assault but convicted him of

sexual exploitation of a child.

2
¶6 In this appeal, McMurray contends that (1) the prosecution

failed to introduce sufficient evidence that he possessed or

controlled sexually exploitative material; (2) section

18-6-403(3)(b.5), C.R.S. 2025 (the sexual exploitation statute),

violates Colorado’s guarantee to equal protection of the laws; and

(3) the court reversibly erred by allowing the prosecutor to engage in

misconduct in the form of five improper statements during closing

argument.

II. Analysis

A. Sufficiency of the Evidence

¶7 McMurray contends that “the prosecution’s evidence [was]

legally insufficient” to show that he “possessed or controlled the

video” of sexually exploitative material. We disagree.

1. Sexual Exploitation of a Child

¶8 A person violates the sexual exploitation statute by

“knowingly . . . [a]ccess[ing] with the intent to view, view[ing],

possess[ing], or control[ling] sexually exploitative material for any

purpose.” § 18-6-403(3)(b.5). “Sexually exploitative material”

includes “video . . . that depicts a child engaged in, participating in,

observing, or being used for explicit sexual conduct.”

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§ 18-6-403(2)(j)(I). A “[c]hild” is “a person who is less than eighteen

years of age.” § 18-6-403(2)(a).

¶9 A “minimum requirement” for criminal liability is the

“performance . . . of conduct which includes a voluntary act.”

§ 18-1-502, C.R.S. 2025. Possession is a voluntary act.

§ 18-1-501(9), C.R.S. 2025. One “possess[es]” property if “the actor

was aware of his physical possession or control thereof for a

sufficient period to have been able to terminate it.” Id.

2. Additional Facts

¶ 10 At trial, the jury viewed a video recording of the detective’s

interview of McMurray, in which McMurray admitted that Berumen

had sent him the video via text message.

¶ 11 The detective asked, “What did [Berumen] take a video with?”

McMurray responded, “His phone . . . . [I]t’s on the phone. Both

our phones.” The detective asked, “Is it still on there? Both your

phones?” McMurray replied, “[Berumen] took it on his phone. He

probably deleted it, but it’s on my phone for sure. I didn’t delete

nothing. . . . But it’s on my phone.” (Emphasis added.) McMurray

said that Berumen sent him the video “through text.”

4
¶ 12 McMurray told the detective, “I have the video on my phone,

but it’s not saved on my phone, but it’s on the messages.”

¶ 13 The forensic download of McMurray’s phone corroborated his

statements about when and how he received the video. The

download showed that, a few hours after McMurray’s encounter

with K.D., at 2:33 a.m., Berumen sent McMurray a text containing

the video showing McMurray having sex with K.D. McMurray’s

phone logged a “read” receipt indicating that the text message was

read at 2:39 a.m. At no point during the interview did McMurray

expressly say that he had watched the video, although several times

he described what the video would show. For example, he told the

detective:

I think in the video you’re going to be able to
see — [describing sex with K.D.] — [Berumen]
already came in with the flash. So, you’re
going to see it clearly. So I did that for about
like — ten, twenty sec — I think the video will
be like forty seconds, thirty seconds, something
like that.

(Emphasis added.)

¶ 14 After asking McMurray if he or Berumen had washed any

clothing or sheets in the apartment following their encounters with

K.D., McMurray responded that they had not and that “[i]t’s on the

5
video, too, you’re going to see the same sheets.” (Emphasis added.)

The detective then informed McMurray that K.D. told the police “she

[was] going in and out of consciousness at the apartment while you

guys [were] having sex with her.” McMurray responded, “No, that’s

a lie. The video is going to show you she was wide awake.”

(Emphasis added.)

3. Standard of Review and Applicable Law

¶ 15 “We review the record de novo to determine whether the

evidence presented was sufficient in both quantity and quality to

sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,

¶ 63, 442 P.3d 379, 392.

¶ 16 “The prosecution has the burden of establishing a prima facie

case of guilt through the introduction of sufficient evidence.” Id.

“To determine whether the prosecution presented sufficient

evidence to support a conviction,” we consider “whether the relevant

evidence, both direct and circumstantial, when viewed as a whole

and in the light most favorable to the prosecution, is substantial

and sufficient to support a conclusion by a reasonable mind that

the defendant is guilty of the charge beyond a reasonable doubt.”

People v. Donald, 2020 CO 24, ¶ 18, 461 P.3d 4, 7 (quoting Clark v.

6
People, 232 P.3d 1287, 1291 (Colo. 2010)). “It does not matter that

we might have reached a different conclusion were we the triers of

fact.” Gorostieta v. People, 2022 CO 41, ¶ 17, 516 P.3d 902, 905.

4. The Evidence Was Sufficient to Support
McMurray’s Conviction for Sexual Exploitation of a Child

¶ 17 McMurray contends he did not “possess” or “control” the video

because he did not solicit, intentionally receive, download, or view

it. However, section 18-1-501(9) does not say that a person

possesses property only if the person solicited, intentionally

received, downloaded, or viewed it. See also Black’s Law Dictionary

1407 (12th ed. 2024) (defining “possess” as “[t]o have in one’s actual

control; to have possession of”); id. at 1408 (defining, as relevant

here, “possession” as “[t]he fact of having or holding property in

one’s power; the exercise of dominion over property”)

¶ 18 Because section 18-1-501(9) does not require proof of

solicitation, intentional receipt, downloading, or viewing, we decline

to read those additional actions into the statute. See People in

Interest of T.B., 2019 CO 53, ¶ 53, 445 P.3d 1049, 1056 (declining

to read limitations into section 18-6-403 that do not appear in the

statute); see also § 2-4-101, C.R.S. 2025 (“Words and phrases [in a

7
statute] shall be read in context and construed according to the

rules of grammar and common usage.”). Unlike the General

Assembly, courts have no authority to rewrite statutes. People v.

Rau, 2022 CO 3, ¶ 34, 501 P.3d 803, 813.

¶ 19 The cases that McMurray cites in support of his reading of

section 18-1-501(9) merely demonstrate that soliciting, intentionally

receiving, or downloading a sexually exploitative video may be

evidence of possession, but they do not hold that these actions are

required to establish possession. See Fabiano v. Armstrong, 141

P.3d 907, 910 (Colo. App. 2006) (“[E]vidence that a person has

knowingly received prohibited material in an e-mail could be

accepted as proof that the person knowingly possessed the

material . . . .” (emphasis added)); Marsh v. People, 2017 CO 10M,

¶ 28, 389 P.3d 100, 107 (“[K]nowingly seeking out and viewing child

pornography . . . constitutes knowingly possessing or controlling it.”

(emphasis added)); Marsh, ¶ 26, 389 P.3d at 107 (expressly

rejecting “limit[ing] the definition of possession to include only those

instances where the defendant has saved images” when the

evidence showed that the defendant viewed the images online).

Similarly, Marsh holds that the presence of automatically cached

8
images on a device “can constitute evidence that the defendant

knowingly possessed the images.” Marsh, ¶¶ 28-29, 389 P.3d at

107 (emphasis added).

¶ 20 In addition, McMurray argues that the evidence does not

establish that he possessed the video because it “does not indicate”

that he viewed it. The People counter that “[t]he prosecution did

not have to prove that McMurray ‘viewed’ the video because he was

charged with possessing or controlling it.” We agree with the

People.

¶ 21 The sexual exploitation statute criminalizes “view[ing],

possess[ing], or control[ling]” the material. § 18-6-403(3)(b.5)

(emphasis added). “[W]hen the word ‘or’ is used in a statute, it is

presumed to be used in the disjunctive sense, unless legislative

intent is clearly to the contrary.” People v. Montoya, 2025 COA 89,

¶ 51, ___ P.3d ___, ___ (quoting Armintrout v. People, 864 P.2d 576,

581 (Colo. 1993)). For example, the use of “the disjunctive ‘or’” in

the failure to leave the premises statute means there are two ways

to commit the offense. Id. at ¶¶ 50-51, ___ P.3d at ___; see

§ 18-9-119(2), C.R.S. 2025 (“Any person who barricades or refuses

police entry to any premises or property through use of or

9
threatened use of force and who knowingly refuses or fails to leave

any premises or property upon being requested to do so by a peace

officer . . . commits a class 2 misdemeanor.” (emphasis added)).

¶ 22 Because we assume the General Assembly intended each word

in the sexual exploitation statute to have a distinct meaning, Marsh,

¶ 22, 389 P.3d at 105, a person can commit the crime of sexual

exploitation of a child by possessing or controlling the sexually

exploitative material, even if the person never viewed it, see

§§ 18-6-403(3)(b.5), 18-1-501(9).

¶ 23 For this reason, the prosecution was not required to prove that

McMurray viewed the video to prove that he possessed or controlled

it in violation of section 18-6-403(3)(b.5). See People v. Edwards,

520 P.2d 1041, 1042 (Colo. 1974) (“[E]vidence of any of the

alternative ways that a crime can be committed will support a

general verdict.” (quoting Hernandez v. People, 396 P.2d 952, 955

(Colo. 1964)).

¶ 24 Even though the prosecution was not required to prove that

McMurray viewed the video, evidence that he had viewed it was

relevant to whether he possessed or controlled it. See Marsh, ¶ 28,

389 P.3d at 107. Although McMurray maintains that “the evidence

10
does not indicate” that he watched the video, we are required to

view the evidence in the light most favorable to the prosecution.

See Donald, ¶ 18, 461 P.3d at 7.

¶ 25 The jury could have reasonably found from McMurray’s

statements during the interview that he viewed the video.

McMurray said during the interview that “you’re going to see it

clearly”; “[i]t’s on the video too, you’re going to see the same sheets”;

and “[t]he video is going to show you she was wide awake.” The

jury could have reasonably interpreted these statements to mean

that McMurray viewed the video and was not merely recalling what

Berumen recorded on the video. More significantly, McMurray’s

statements during the interview demonstrate that he knew the

video was accessible on his phone, it remained on his phone when

the police seized it, and he “didn’t delete” it. McMurray argues that

his conduct was not a “voluntary act” because he possessed the

video for “less than twenty-four hours” before he “reported it to

police,” and, therefore, he did not possess it “for a sufficient period

of time such that the possession could have been terminated.” In

the same breath, McMurray argues he did not commit a voluntary

act because he did “terminat[e] possession within twenty-four

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hours . . . willfully” by removing his phone’s password before police

seized his phone. McMurray concedes that “he technically could

have deleted the message in a few seconds” but that he “did not

delete it only to report it to police,” which is a

“reasonable . . . purpose of possession.” We are unpersuaded.

¶ 26 Significantly, the sexual exploitation of a child statute

criminalizes the possession of sexually exploitative material for any

time period and “for any purpose.” § 18-6-403(3)(b.5).

¶ 27 In Fabiano, the division held that the Colorado statutes do not

“contain any requirement that the prohibited material be retained

for any minimum period of time.” 141 P.3d at 910. Fabiano

acknowledges that, unlike in this case, the owner of a device may

not be deemed to possess an unsolicited message containing

“previously unknown material” so long as the owner “immediately

delete[s]” the material from the owner’s device. Id. at 909 (emphasis

added).

¶ 28 McMurray does not dispute that he knew the contents of the

video; rather, he argues that he retained the video on the phone for

the sole purpose of reporting it to police or that reporting it to the

detective within twenty-four hours of receiving it negated his

12
possession of the video. In support of this argument, he cites

section 18-7-109(2)(b), C.R.S. 2025, which allows juveniles to wait

seventy-two hours before reporting their possession of a private

intimate image to police — but McMurray was not a juvenile at the

time Berumen sent him the video.

¶ 29 The jury could have reasonably disbelieved McMurray’s

argument that he merely preserved the video so he could turn it

over to the police. The record shows that McMurray did not

voluntarily contact the police to report the video; he still had the

video in his text messages when the police brought him in for

questioning, nearly twenty-four hours after Berumen sent him the

video; the officers seized McMurray’s phone before the detective

interviewed him; and McMurray knowingly retained the video on his

phone the entire time. McMurray had ample time to delete the

video before his arrest, but he chose not to do so. In any event,

under section 18-6-403(3)(b.5), McMurray did not need to possess

or control the video for a minimum time period to commit the

offense; there was no grace period within which he could delete the

video without culpability after becoming aware of its contents. See

13
Fabiano, 141 P.3d at 910. And under the statute, his motives for

not deleting the video are immaterial. See 18-6-403(3)(b.5).

¶ 30 We conclude that the evidence was sufficient in both quantity

and quality such that the jury reasonably could have found that

McMurray possessed or controlled sexually exploitative material in

violation of section 18-6-403(3)(b.5).

B. Equal Protection

¶ 31 McMurray contends that the sexual exploitation statute

violates the guarantee of equal protection under the Colorado

Constitution, Colo. Const. art. II, § 25, because, while the sexual

exploitation statute and section 18-3-405.6, C.R.S. 2025 (the sexual

gratification statute), proscribe similar conduct, the former

punishes such conduct more harshly than does the latter.

McMurray presents both as-applied and facial challenges to the

sexual exploitation of a child statute. We need not reach the merits

of McMurray’s equal protection argument, however, because he did

not preserve it in the trial court, and he fails to present a plain error

argument on appeal.

¶ 32 In his opening brief, McMurray does not tell us — as

C.A.R. 28(a)(7)(A) requires — the standard of review applicable to

14
his equal protection argument “with citation to authority, whether

the issue was preserved, and if preserved, the precise location in

the record where the issue was raised and where the court ruled.”

¶ 33 McMurray belatedly concedes in his reply brief that he did not

preserve the argument. He asserts, however, that, even though he

did not preserve the argument, we must review it under the de novo

standard. He is incorrect.

1. Standard of Review and Applicable Law

¶ 34 The parties agree the issue is unpreserved but dispute what

standard of review applies.

¶ 35 We have the discretion to address an unpreserved

constitutional claim “when we believe that doing so would best

serve the goals of efficiency and judicial economy.”

Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19, 408 P.3d 445, 448;

People v. Mountjoy, 2016 COA 86, ¶¶ 35, 39-40, 431 P.3d 631, 639

(applying this principle to as-applied and facial challenges), aff’d on

other grounds, 2018 CO 92M, 430 P.3d 389.

¶ 36 And we apply the plain error standard when we chose to

exercise our discretion to review an unpreserved constitutional

argument. See People v. Price, 2023 COA 96, ¶ 47, 542 P.3d 268,

15
279 (“[W]e only reverse unpreserved constitutional errors for plain

error.”). But we only review plain error arguments that an appellant

presents to us. See Moody v. People, 159 P.3d 611, 614 (Colo.

2007) (noting “the basic principle of appellate jurisprudence that

arguments not advanced on appeal are generally deemed waived”).

To do otherwise would violate the party presentation principle. See

Compos v. People, 2021 CO 19, ¶ 35, 484 P.3d 159, 165 (explaining

that, under the party presentation principle, “we rely on the parties

to frame the issues for decision and assign to courts the role of

neutral arbiter” (quoting Greenlaw v. United States, 554 U.S. 237,

243-44 (2008)).

¶ 37 Plain error review requires a determination of “whether

(1) there was an error, (2) the error was ‘plain,’ or clear and obvious,

and (3) the error was substantial, meaning that it so undermined

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

doubt on the reliability of the judgment of conviction.” People v.

Allman, 2012 COA 212, ¶ 17, 321 P.3d 557, 564. An error is

obvious if it was “so clear-cut” that “a trial judge should [have been]

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

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

16
2017 CO 37, ¶ 6, 393 P.3d 973, 976), because it “contravene[d] a

clear statutory command, a well-settled legal principle, or

established Colorado case law,” id. McMurray bears the burden of

establishing that an error occurred, see People v. Conyac, 2014

COA 8M, ¶ 54, 361 P.3d 1005, 1020, and that it was obvious at the

time the court made it, see Crabtree, ¶ 73, 550 P.3d at 672.

2. McMurray’s Equal Protection Challenge to
the Sexual Exploitation of a Child Statute Fails
in the Absence of a Plain Error Argument

¶ 38 McMurray does not argue that the court’s alleged

constitutional error was plain, much less cite any Colorado

statutory or prior case law that would have alerted the trial court

that his conviction violated the guarantee of equal protection. See

Crabtree, ¶ 42, 550 P.3d at 667 (“[W]hen Colorado statutory law or

case law would not have alerted the trial judge to an unobjected-to

error, the error cannot be deemed plain.”). In any event, we are

unaware of any statutory or prior case law that would have alerted

the trial court that McMurray’s conviction for sexual exploitation of

a child violated the guarantee of equal protection.

¶ 39 In sum, even if we were to exercise our discretion to review

McMurray’s unpreserved constitutional claim, his contention would

17
still fail because McMurray waived his equal protection argument

by failing to present a plain error argument in this appeal. See

Moody, 159 P.3d at 614.

C. Prosecutorial Misconduct

¶ 40 McMurray contends that the prosecutor engaged in

misconduct five times during closing arguments. We disagree.

1. Standard of Review and Applicable Law

¶ 41 When reviewing prosecutorial misconduct arguments, “we

engage in a two-step process where ‘[e]ach step is analytically

independent of the other.’” People v. Ray, 2025 CO 42M, ¶ 127,

575 P.3d 400, 435 (quoting People v. Robinson, 2019 CO 102, ¶ 18,

454 P.3d 229, 233). “First, we must determine whether misconduct

occurred; that is, whether the prosecution’s conduct was improper

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

evidence before the jury.’” Id. at ¶ 128, 575 P.3d at 435 (quoting

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

“Determining whether a prosecutor’s actions constitute misconduct

‘is generally a matter left to the trial court’s discretion.’” Id.

(quoting People v. Snider, 2021 COA 19, ¶ 31, 491 P.3d 423, 431).

“[W]e review the record for an abuse of that discretion.” Id.

18
¶ 42 While we acknowledge that “[a] prosecutor, while free to strike

hard blows, is not at liberty to strike foul ones,” People v. Yachik,

2020 COA 100, ¶ 58, 469 P.3d 582, 592 (quoting Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005)), we remain mindful that

“[p]rosecutorial misconduct in closing argument rarely constitutes

plain error,” People v. Sparks, 2018 COA 1, ¶ 4, 434 P.3d 713, 717.

¶ 43 “Second, if we determine the prosecution’s comments were

improper, we then consider whether that misconduct warrants

reversal under the appropriate standard.” Ray, ¶ 130, 575 P.3d at

435. We consider the “severity and frequency of the misconduct,

any curative measures taken by the trial court to alleviate the

misconduct, and the likelihood that the misconduct constituted a

material factor leading to the defendant’s conviction.” Id. (quoting

Strock, 252 P.3d at 1153).

¶ 44 If the appellant “fail[ed] to object to the alleged misconduct at

trial, we review for plain error.” Id. at ¶ 131, 575 P.3d at 435.

“Prosecutorial misconduct constitutes plain error where it (1) is

flagrant or glaringly or tremendously improper and (2) so

undermines the trial’s fundamental fairness as to cast serious

19
doubt on the judgment of conviction’s reliability.” Sparks, ¶ 4, 434

P.3d at 717.

¶ 45 But we review for harmlessness if the appellant preserved the

error through an objection. Ray, ¶ 131, 575 P.3d at 435.

Prosecutorial misconduct is harmless if there is no “reasonable

probability that any error by the trial court contributed to [the

defendant’s] conviction.” People v. Monroe, 2020 CO 67, ¶ 17, 468

P.3d 1273, 1276. When reviewing prosecutorial misconduct for

harmlessness, we must evaluate “the likelihood of prejudice . . . in

the totality of the circumstances, on a case-by-case basis.” Crider

v. People, 186 P.3d 39, 43 (Colo. 2008).

2. The Court Did Not Plainly Err by Allowing the
Alleged Prosecutorial Misconduct to Which
McMurray Did Not Object at Trial

McMurray raises four prosecutorial misconduct arguments for

the first time on appeal: On three occasions, the prosecutor

allegedly improperly referred to facts not in evidence and did not

draw reasonable inferences from the evidence, and on a fourth

occasion, the prosecutor allegedly wrongfully asked the jury to do

justice for a sympathetic victim. We conclude that the trial court

did not err — much less plainly err — by permitting the prosecutor

20
to present these arguments. (We note that certain of the

prosecutor’s challenged statements appear to relate to the sexual

assault count, on which the jury acquitted McMurray, rather than

the sexual exploitation count. Because the People do not note this

distinction, however, we review all the instances of alleged

misconduct on the merits.)

a. The Prosecutor Did Not Improperly Refer to
Facts Not in Evidence

¶ 46 McMurray asserts that, three times during closing argument,

the prosecutor improperly “referred to facts not in evidence to paint

an inaccurate picture to the jury of McMurray’s actions and

intentions.” We disagree.

¶ 47 In those three instances, the prosecutor said:

• McMurray “didn’t care about [K.D.’s] name.”

• “[H]e took what he wanted and he watched the video

afterwards.”

• K.D. “was a sexual object” to McMurray. She was “a

conquest” to him. “She is nameless. She is faceless.

She is the entertainment and he wanted her to put on a

show.”

21
¶ 48 Although “it is not proper for a prosecutor to refer to facts not

in evidence,” People v. Walters, 148 P.3d 331, 334 (Colo. App.

2006), “[f]inal argument may properly include the facts in evidence

and any reasonable inferences drawn therefrom,”

Domingo-Gomez,125 P.3d at 1048. “[A] prosecutor has wide latitude

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

¶ 49 First, McMurray contends that the prosecutor “was not

discussing evidence” when she said that “[McMurray] didn’t care

about [K.D.’s] name.” The evidence refutes this argument.

¶ 50 On the video recording of the detective’s interview with

McMurray — which, as noted above, the jury viewed and the court

admitted into evidence — McMurray said, “I don’t even remember

her name. She said her name was something.” The detective

asked, “If I said her name was [K.D.] would that sound right?” To

which McMurray replied, “Yeah, yeah, that’s probably her name,

yeah.” McMurray only referred to K.D. by name once during the

nearly hour-long interview during which McMurray and the

detective repeatedly referred to her.

¶ 51 The prosecutor could reasonably draw the inference that

McMurray did not care about K.D.’s name because he had forgotten

22
it within twenty-four hours of his encounter with her. Thus, we

conclude the prosecutor’s reference to K.D.’s name was not

improper.

¶ 52 Second, McMurray contends that the prosecutor “referenced

no evidence” in support of her assertion that McMurray “took what

he wanted and watched the video afterwards.” Again, the evidence

refutes this argument.

¶ 53 The jury could have reasonably found that McMurray watched

the video from at least three pieces of evidence: his descriptions of

the content of the video during his interview with the detective, the

“read” receipt on McMurray’s phone, and the forensic download

from the phone. Accordingly, we conclude that the prosecutor

properly drew from this evidence the inference that McMurray

watched the video. (In any event, as explained above, supra

Part II.A.4, the prosecutor was not required to prove that McMurray

watched the video to obtain a conviction under the sexual

exploitation statute.)

¶ 54 Third, McMurray contends that the evidence did not support

the prosecutor’s assertion that “[K.D.] was a sexual object” and a

“conquest” to McMurray and that, to him, she was “nameless,”

23
“faceless,” and “the entertainment[,] and he wanted her to put on a

show.” As with the first two allegedly improper arguments, the

evidence supports these statements.

¶ 55 During McMurray’s interview, the detective asked, “Was

[Berumen] concerned about like . . . we shouldn’t have done that?”

McMurray replied, “No, we were not thinking nothing like that.”

The detective followed up, “Not anything — she was gone. You guys

were moving on with your day?” McMurray answered, “She was

gone, and we didn’t think — Yeah. . . . [I]t was all normal. We

didn’t think nothing of it. I didn’t think nothing of the girl . . . .”

(Emphasis added.) McMurray admitted that “the only time [he]

even thought about the girl” was when her brother sent him

accusatory text messages after she returned home. Accordingly, we

conclude that the evidence supported the prosecutor’s statements

regarding McMurray’s indifference to K.D.

¶ 56 In sum, we hold that the prosecutor’s first three challenged

statements were reasonable inferences from facts in the record and,

therefore, were not improper.

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b. The Prosecutor Did Not Urge the Jury to
Do Justice for a Sympathetic Victim

¶ 57 In his fourth unpreserved prosecutorial misconduct argument,

McMurray asserts that the prosecutor improperly “urged the jurors

to find McMurray guilty to do justice for K.D. as a sympathetic

victim.” We discern no error.

¶ 58 This argument is premised on the prosecutor’s statement,

I am asking you, the jury to find that [K.D.]
was a girl that was brave enough to sit on this
stand and tell a room full of adults, a room full
of strangers, the most painstaking details of
being sexually assaulted by [McMurray]. [K.D.]
is the victim in this case because [McMurray]
made her one. The defendant is guilty.

¶ 59 “A prosecutor should not encourage ‘the jury to depart from its

duty to decide the case on the evidence [by] asking the jury to

memorialize or pay tribute to the victim by its verdict.’” People v.

Marko, 2015 COA 139, ¶ 221, 434 P.3d 618, 660 (quoting People v.

Dunlap, 975 P.2d 723, 759 (Colo. 1999)), aff’d on other grounds,

2018 CO 97, 432 P.3d 607. Similarly, a prosecutor engages in

misconduct by “pressur[ing] jurors by suggesting that guilty

verdicts are necessary to do justice for a sympathetic victim.” Id.

(quoting People v. McBride, 228 P.3d 216, 223 (Colo. App. 2009)).

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¶ 60 First, assuming, without deciding, that the prosecutor’s

statements were improper, we perceive no plain error. Other

divisions have not found plain error when the prosecutor

• expressly asked the jury to vindicate the victims, People

in Interest of J.R., 2021 COA 81, ¶ 47, 495 P.3d 346, 354

(discerning harmless error when the prosecutor asked

the jury to “‘vindicate’ the victims by holding [the

defendant] accountable”); People v. Wallace, 97 P.3d 262,

269 (Colo. App. 2004) (asking the jury to “hold [the

defendant] accountable for the behavior that he did and

the cries that he instilled in these children”);

• misstated that the defendant had lost the presumption of

innocence, McBride, 228 P.3d at 223-24 (“That

presumption of innocence that we had when we started

this case is gone.”);

• appealed to the jurors’ passions or prejudices, People v.

Salazar, 2023 COA 102, ¶ 48, 542 P.3d 1209, 1220

(“Don’t make these boys wait any longer before you tell

them that they are believed and before you convict this

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man of each and every thing that he is charged with.”);

and

• pressured jurors by suggesting that guilty verdicts were

necessary to do justice for a sympathetic victim, Conyac,

¶¶ 146-147, 361 P.3d at 1030 (“[T]he prosecutor told the

jury that ‘my job is done. The judge’s job is done. You

are now the justice system. Go back into that jury room,

use your common sense and find justice. Find justice for

[the victim].”).

¶ 61 Similarly, it was not obvious that, under Colorado law, the

prosecutor’s reference to K.D.’s bravery was error. See Salazar,

¶ 46, 542 P.3d at 1220; see also State v. Williams, 926 A.2d 7, 23

(Conn. App. Ct. 2007) (concluding that the prosecutor did not

engage in misconduct by urging the jury to envision the victim as

an eleven-year-old sexual assault victim and not as the “brave

poised young woman[] who testified in this court”). In addition, the

prosecutor did not improperly admonish the jury to “do justice” for

a sympathetic victim. People v. Buckner, 2022 COA 14, ¶¶ 41-44,

509 P.3d 452, 461 (The trial court plainly erred by permitting the

prosecutor to argue, “[The victim’s] day of justice is a long time

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coming. That’s today. Hold [the defendant] accountable for what

he did to that girl that night.”). Further, McMurray does not point

to any Colorado case holding that a prosecutor engages in

misconduct by commenting on the victim’s disclosure of the

intimate details of a sexual assault to a group of strangers.

¶ 62 Thus, we hold that the court did not plainly err by permitting

the prosecutor to refer to K.D.’s bravery because such argument

was not “flagrant or glaringly or tremendously improper,” nor did it

“so undermine[] the trial’s fundamental fairness as to cast serious

doubt on the judgment of conviction’s reliability.” Sparks, ¶ 4, 434

P.3d at 717.

¶ 63 Moreover, the prosecutor’s arguments regarding McMurray’s

lack of concern about K.D. and her bravery on the witness stand

could not have resulted in an improper verdict on the sexual

exploitation charge because they primarily related to the sexual

assault count — on which the jury acquitted McMurray. When a

jury returns a split verdict, it is unlikely the jury was “swayed by

any potentially improper argument,” People v. Snelling, 2022 COA

116M, ¶ 37, 523 P.3d 447, 486, and permitting the argument did

not “undermine[] the trial’s fundamental fairness as to cast serious

28
doubt on the judgment of conviction’s reliability,” Sparks, ¶ 4, 434

P.3d at 717.

¶ 64 In sum, we conclude that McMurray failed to establish that

the court plainly erred by not sua sponte striking the first four

challenged arguments.

3. The Court Did Not Commit Harmless Error by Allowing the
Alleged Prosecutorial Misconduct to Which McMurray
Objected to at Trial

¶ 65 McMurray contends that the prosecutor “denigrated defense

counsel” during closing argument when she said that “[t]he only

reason that video was played by the defense was to humiliate [K.D.]”

Defense counsel contemporaneously objected. The court did not

say it was sustaining the objection but responded, “Let’s move on.”

We conclude that any error was harmless.

¶ 66 The People do not argue that the prosecutor did not denigrate

defense counsel. The People acknowledge that defense played the

video at trial “to support [McMurray’s] defense that he was not

guilty of sexual assault (incapable of appraising).” Instead, the

People contend that “there is no error to correct” because the court

sustained defense counsel’s objection by saying, “Let’s move on.”

We do not need to address these arguments, however. Even if we

29
assume that the prosecutor’s statements improperly denigrated

defense counsel and the court erred by not expressly sustaining

defense counsel’s objection, we find that any error was harmless.

¶ 67 Again, the prosecutor’s statements could not have resulted in

an improper verdict because the video primarily related to the

sexual assault charge, of which the jury acquitted McMurray.

Thus, it is highly unlikely that the prosecutor’s statement

questioning defense counsel’s motives resulted in prejudice to

McMurray; there is no reasonable probability the statement

contributed to McMurray’s conviction for sexual exploitation of a

child. See Snelling, ¶ 37, 523 P.3d at 486; Crider, 186 P.3d at 43;

Monroe, ¶ 17, 468 P.3d at 1276.

¶ 68 Therefore, we hold that, even if the court erred by permitting

the prosecutor to suggest that defense counsel played the video only

to humiliate K.D. — and even if the prosecution’s suggestion related

to the sexual exploitation of a child count — the error was

harmless.

III. Disposition

¶ 69 The judgment of conviction is affirmed.

JUDGE DUNN and JUDGE KUHN concur.

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