People v. John Anthony Vasquez

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 8, 2022

2022COA100

No. 18CA1486, People v. Vasquez — Crimes — Felony Murder —
Fourth Degree Arson

A division of the court of appeals considers whether someone

can be convicted of fourth degree arson for lighting another person’s

clothing on fire while that person is wearing the clothing.

Answering that question in the affirmative, the division further

concludes that the above-described act can serve as the predicate

felony for felony murder under Colorado law.
COLORADO COURT OF APPEALS 2022COA100

Court of Appeals No. 18CA1486
Clear Creek County District Court No. 16CR55
Honorable Mark D. Thompson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Anthony Vasquez,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE BERNARD*
Pawar and Brown, JJ., concur

Announced September 8, 2022

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, 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. 2021.
¶1 This case presents two related questions of first impression in

Colorado. First, can someone be convicted of fourth degree arson

for lighting another person’s clothing on fire while that person is

wearing the clothing? Second, if so, can such an arson serve as the

predicate felony for felony murder? We answer both questions

“yes.” Accordingly, we affirm the felony murder conviction of

defendant, John Anthony Vasquez, and otherwise affirm the

judgment of conviction.

I. Background

¶2 Defendant and the victim were in a relationship. In June

2016, they decided to go camping with the victim’s sons, who were

then six and ten years old, near Idaho Springs.

¶3 The trip got off to a bad start. They arrived at the destination

after dark, and they could not figure out how to set up their tent.

This led to a shouting match, and defendant locked himself in their

vehicle. Eventually, one of the victim’s sons called 911, but the

victim reported that nothing was wrong.

¶4 Things would go very wrong.

¶5 In the morning, after everyone had spent the night in the

vehicle, its battery was dead. Defendant and the victim began to

1
argue again, and the argument escalated quickly. The victim

grabbed a bottle of beer from which defendant had been drinking

and smashed it. Defendant then picked up a can of gasoline,

poured its contents on the victim, and lit her clothing on fire with a

lighter. She suffered third-degree burns over most of her body.

Although she lived long enough to be taken to the hospital, she died

from her injuries.

¶6 The prosecution charged defendant with numerous offenses in

connection with the victim’s death, and the case proceeded to trial.

The jury found him guilty of felony murder (with arson as the

predicate felony), second degree murder, first degree assault, fourth

degree arson, two counts of child abuse, criminal impersonation,

and two counts of violation of a protection order.

II. Sufficiency of the Evidence

¶7 Defendant asserts that the evidence presented at trial was

insufficient to support his conviction for arson and, by extension,

his conviction for felony murder. More specifically, he submits that

the evidence was insufficient because, (1) as a matter of law, one

cannot be convicted of arson for lighting another person’s clothing

on fire while that person is wearing the clothing; and, (2) the

2
prosecution did not present enough evidence to establish that he

set fire to anyone’s property. We disagree with both contentions.

A. Defendant’s First Argument

¶8 Defendant’s first argument is principally a question of

statutory interpretation. We review such questions de novo. People

v. Weeks, 2021 CO 75, ¶ 24. When interpreting a statute, our

primary goal is to ascertain and give effect to the legislature’s

intent. People v. Cali, 2020 CO 20, ¶ 15. To do so, we start with

the language of the statute, giving its words and phrases their plain

and ordinary meanings. Id. We read those words and phrases in

context, giving consistent effect to all the statute’s parts, construing

each provision in harmony with the overall statutory design. People

v. Harrison, 2020 CO 57, ¶ 17. If the language is clear and

unambiguous, we apply it as written. Id. at ¶ 18.

¶9 As is relevant to this case, the arson statute provides as

follows: “A person who knowingly or recklessly starts or maintains a

fire . . . on his own property or that of another, and by so doing

places another in danger of death or serious bodily injury . . .

commits fourth degree arson.” § 18-4-105(1), C.R.S. 2021. “Fourth

3
degree arson is a class 4 felony if a person is thus endangered.” §

18-4-105(2).

¶ 10 At trial, defendant asked the court to enter a judgment of

acquittal for the crime of felony murder. He argued that Colorado’s

fourth degree arson statute does not contemplate setting fire to a

person, and the prosecution alleged that he had poured gasoline on

the victim and then lit her on fire. This was fatal to the felony

murder charge, he continued, because “the fact that she [was]

wearing clothing at the time should not be construed . . . to mean

that, somehow, her property is being set on fire and, as a result,

she . . . ends up injured.”

¶ 11 The court rejected this line of reasoning, concluding that,

under section 18-4-105, “[t]here is absolutely no qualification with

respect to the term ‘property’ or its location or proximity to the

person involved,” and that, in this case, the “property” at issue was

the victim’s clothing.

¶ 12 Defendant repeats his argument on appeal, adding that the

court’s interpretation “arguably converts fourth degree arson into a

specialized form of assault.” We are not persuaded because

defendant’s argument sidesteps the clear language of the fourth

4
degree arson statute, specifically the phrase “starts or maintains a

fire . . . on his own property or that of another.” § 18-4-105(1)

(emphasis added).

¶ 13 According to Webster’s Third New International Dictionary

1574 (2002), the first subsense of “on” is that it is “used as a

function word to indicate position over and in contact with that

which supports from beneath.” The relevant verbal illustration for

this subsense of the word is “was built [on] an island.” Id. Applying

this definition, we can see that the phrase “on his own property or

that of another” focuses on the location of the fire, as in the place

where the fire was started or maintained — for example, on the

accused’s land — not on what was burned. To put it another way,

fourth degree arson criminalizes knowingly or recklessly starting or

maintaining a fire on property situated anywhere in Colorado, and

by doing so endangering a person, a building, or an occupied

structure.

¶ 14 Two other arson statutes focus on what was burned, instead

of where the fire started, and they do so by using the word “to”

instead of the word “on.” First degree arson, as defined in section

18-4-102(1), C.R.S. 2021, prohibits “set[ting] fire to . . . any building

5
or occupied structure of another.” (Emphasis added.) And second

degree arson, as defined in section 18-4-103(1), C.R.S. 2021,

prohibits “set[ting] fire to . . . any property of another . . . other than

a building or occupied structure.” (Emphasis added.)

¶ 15 Returning to the dictionary, we see that the word “to” in this

sense is “used as a function word to indicate the receiver of an

action or the one for which something is done or exists,” as in the

verbal illustration “make alterations [to] the text.” Webster’s Third

New International Dictionary at 2401. So, for first degree arson,

one must set fire to “a building or occupied structure of another”;

for second degree arson, one must set fire to “any property of

another” that is not a building or occupied structure.

¶ 16 Applying the preceding reasoning to this case, we conclude

that defendant’s contention is a red herring. It does not matter, for

the purposes of fourth degree arson, that the victim was wearing

clothing and that defendant ignited it after dousing her with

gasoline. Under the statute’s plain language, what matters was

that defendant knowingly started a fire on the property of another (a

campground), and that the fire placed the victim in danger of death

or serious bodily injury.

6
B. Defendant’s Second Argument

¶ 17 Defendant’s second argument fares no better. “[W]e review the

record de novo to determine whether the evidence before the jury

was sufficient both in quantity and quality to sustain the

convictions.” Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005).

Evidence is sufficient to support a conviction if “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 (quoting Clark v. People, 232

P.3d 1287, 1291 (Colo. 2010)).

¶ 18 Based on defendant’s briefing, his argument on appeal

appears to be that his arson conviction must be vacated because

the prosecution did not present enough evidence that he set fire to

either his own property or anyone else’s. But, as we have

explained, fourth degree arson applies to a fire that is set or

maintained on property situated anywhere in Colorado that, for the

purposes of this case, places the victim in danger of death or

serious bodily injury. The prosecution presented ample evidence

7
that defendant doused the victim with gasoline, lit her on fire, and

caused her death, including forensic evidence and eyewitness

accounts from both the victim’s sons.

III. Independent Act

¶ 19 Defendant next contends that his felony murder conviction

cannot stand because lighting the victim on fire was not

independent of the homicide. Refining this contention, he submits

that the act that formed the basis for his arson conviction —

lighting the victim’s clothing on fire — was the same act that caused

her death. We are not persuaded.

¶ 20 This is another question of statutory interpretation, so we will

apply the same interpretive rules here that we did when addressing

defendant’s sufficiency argument.

¶ 21 At the time of the offense in this case, Colorado law provided

that a person could be convicted of first degree murder if,

[a]cting either alone or with one or more
persons, he or she commits or attempts to
commit arson . . . and, in the course of or in
furtherance of the crime that he or she is
committing or attempting to commit, or of
immediate flight therefrom, the death of a
person, other than one of the participants, is
caused by anyone.

8
§ 18-3-102(1)(b), C.R.S. 2015.

¶ 22 Relying on out-of-state cases, defendant contends that the

crime of felony murder requires that the predicate felony be

independent of the killing itself. See, e.g., Commonwealth v.

Kilburn, 780 N.E.2d 1237, 1240 (Mass. 2003)(“The doctrine of

felony-murder provides that ‘the conduct which constitutes the

felony must be “separate from the acts of personal violence which

constitute a necessary part of the homicide itself.”’” (quoting

Commonwealth v. Gunter, 692 N.E.2d 515, 525 (Mass. 1998))).

¶ 23 In contrast to those states, however, Colorado law is clear and

unambiguous about which offenses can serve as a predicate offense

for felony murder, People v. Medina, 260 P.3d 42, 45 (Colo. App.

2010); it is the legislature’s prerogative, not ours, to “define criminal

offenses,” People v. Jackson, 2020 CO 75, ¶ 39; and it is not our

role to second-guess the legislature’s determination that arson is

one of those offenses, Rowe v. People, 856 P.2d 486, 489 (Colo.

1993). (Indeed, if the legislature ever wants to limit the application

of the felony murder doctrine, it knows how to do so. Just last

year, for example, it amended the Colorado criminal code to make

felony murder a variation of second degree murder instead of first

9
degree murder, and it clarified that, for arson to be a predicate

offense, it must be felony arson. Ch. 58, secs. 1-2, §§ 18-3-102,

-103, 2021 Colo. Sess. Laws 235-36.)

¶ 24 Courts in states that have felony murder laws like Colorado’s

reach a similar result. For example, in People v. Densmore, 274

N.W.2d 811, 813-14 (Mich. Ct. App. 1978), the defendant

contended that the arson charge should merge with the killing, thus

barring a felony murder conviction, reasoning that, since the arson

was “the means by which the killing was perpetrated, the arson . . .

is an assault resulting in murder.” The Michigan Court of Appeals

disagreed: “Since the Legislature has seen fit to clearly enumerate

the exclusive felonies which can underlie a felony-murder

conviction, it would not comport with the legislative intent if we

were to adopt [the] defendant’s theory of merger.” Id. at 814. Going

on, the court made two pertinent observations: (1) arson, a

predicate felony in the felony murder statute, did not share any

elements with homicide that would require merger based on a

“lesser included or cognate offense analysis,” id.; and (2) “[t]aken to

its logical conclusion, [the] defendant’s argument would confine

first-degree felony murder to cases where death was not intended

10
by the arsonist,” which would be an “illogical” result that had “no

support in case law or statutory enactment.” See also People v.

Lewis, 791 P.2d 1152, 1154 (Colo. App. 1989)(“[I]nasmuch as both

murder and assault are crimes which may underlie a felony

burglary, there is no logic or reason to preclude a felony murder

charge from being based upon a burglary charge that, in turn, is

premised upon either an intent to assault or an intent to murder.”).

¶ 25 Even if there was not this clear statutory rejection of

defendant’s contention, the crime of fourth degree arson was

independent of killing in this case. To commit fourth degree arson,

defendant had to “start[] or maintain[] a fire,” § 18-4-105(1), and

that act was felonious conduct that was independent of the victim’s

death. See Densmore, 274 N.W.2d at 814.

IV. Intent

¶ 26 Defendant also submits that his felony murder conviction

cannot stand because the prosecution did not prove, beyond a

reasonable doubt, that he had intended to commit arson “either

before or contemporaneous with the killing act.” We see things

differently.

11
¶ 27 In part, this is another question of statutory interpretation,

but it also concerns the sufficiency of the evidence. We have

already articulated the relevant standards of review and legal

principles for both issues.

¶ 28 So let us focus our attention on the clause “in the course of or

in furtherance of the crime that he or she is committing or

attempting to commit” in the felony murder statute. § 18-3-

102(1)(b), C.R.S. 2015. The clause, with its disjunctive “or,” permits

a felony murder conviction if the prosecution proves beyond a

reasonable doubt either that (1) a person died “in the course of” the

commission or attempted commission of the predicate offense; or (2)

a person died “in furtherance of” the commission or attempted

commission of the predicate offense.

¶ 29 Although the statute certainly requires that the prosecution

prove, beyond a reasonable doubt, all elements of the predicate

offense, including the applicable mens rea, Doubleday v. People,

2016 CO 3, ¶ 26, it does not require that the prosecution prove,

beyond a reasonable doubt, that the defendant formed the intent to

commit the predicate offense either before or contemporaneously

12
with the killing act. As a division of this court has determined, the

statute

does not require a finding that the defendant
was committing the predicate felony at the
time he caused a death. . . . [A]s a matter of
law, . . . the sequence of events is irrelevant as
long as sufficient evidence is produced to show
that a felony was committed by the defendant
and that a death occurred during the
commission of that felony.

People v. Braxton, 807 P.2d 1214, 1217 (Colo. App. 1990); accord

People v. Phillips, 219 P.3d 798, 800-01 (Colo. App. 2009)(“Where,

as here, there is a close temporal and spatial relationship between a

killing and a subsequent felony, the defendant’s intent to commit

the underlying felony may be inferred from the circumstances.”).

¶ 30 What is more, even if defendant is correct about Colorado’s

felony murder statute imposing an order of operations or a “timing”

requirement with respect to the predicate offense and the homicide

— and we do not think that he is — it is unrefuted that if defendant

set the victim on fire (a fact that he disputed at trial), the victim

died as a result of her injuries. So the victim’s death necessarily

occurred “in the course of” the commission of the predicate offense.

13
¶ 31 To the extent defendant asserts that, based on the

prosecution’s theory that he intended to kill the victim, he could not

have intended to commit arson, our supreme court has made clear

that the prosecution need not prove that a defendant intended to

endanger anyone to convict the defendant of fourth degree arson.

Copeland v. People, 2 P.3d 1283, 1285-87 (Colo. 2000). Instead, it

is enough that the prosecution proved that the defendant knowingly

or recklessly started the fire at issue. Id. As we have mentioned,

there is ample evidence that defendant knowingly or recklessly

started the fire in this case.

V. Expert Testimony

¶ 32 We next address defendant’s contention that the court

erroneously admitted certain expert testimony concerning the origin

and cause of the fire that killed the victim. We are not persuaded.

A. Standard of Review

¶ 33 In deference to a trial judge’s “superior opportunity . . . to

assess the competence of [an] expert and to assess whether [an]

expert’s opinion will be helpful to the jury,” we review a court’s

admission of expert testimony for an abuse of discretion. People v.

Rector, 248 P.3d 1196, 1200 (Colo. 2011). A court abuses its

14
discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or when it misapplies the law. People v. Baker, 2021 CO

29, ¶ 29.

B. Analysis

¶ 34 The Colorado Rules of Evidence govern the admissibility of

expert testimony. CRE 702 states, “If scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.”

¶ 35 “The focus of a Rule 702 inquiry,” our supreme court has

explained, “is whether the scientific evidence proffered is both

reliable and relevant.” People v. Shreck, 22 P.3d 68, 77 (Colo.

2001). To determine whether the evidence is reliable, “a trial court

should consider (1) whether the scientific principles as to which the

witness is testifying are reasonably reliable, and (2) whether the

witness is qualified to opine on such matters.” Id. To determine

whether the evidence is relevant, “a trial court should consider

whether the testimony would be useful to the jury.” Id. Expert

testimony is useful if it “will assist the fact finder to either

15
understand other evidence or to determine a fact in issue.” People

v. Ramirez, 155 P.3d 371, 379 (Colo. 2007).

¶ 36 Expert testimony must also pass muster under CRE 403,

which provides that relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”

¶ 37 “Concerns about conflicting opinions or whether a qualified

expert accurately applied a reliable methodology go to the weight of

the evidence, not its admissibility.” People v. Shanks, 2019 COA

160, ¶ 12. And “concerns about the degree of certainty to which

[an] expert holds his opinion are sufficiently addressed by vigorous

cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof rather than exclusion.” Est. of

Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011).

¶ 38 Defendant takes issue with three of the prosecution’s expert

witnesses: Jerry Means, Siegfried Klein, and Kelly Babeon. We will

consider them one at a time, beginning with Means.

16
1. Means

¶ 39 Means was a fire investigator with the Colorado Department of

Public Safety who investigated the fire in this case. Before trial,

defendant moved to limit Means’s testimony, asserting that his

opinions about the origin and the cause of the fire were unreliable.

¶ 40 He asked the court for a hearing on this issue, and the court

held one. After the hearing, the court issued a written order

denying defendant’s motion. Specifically, the court found that

Means had “substantially complied” with the applicable standards

and guidelines for fire investigation, that the scientific principles

underlying those standards and guidelines were reasonably reliable,

and that, to the extent Means deviated from the standards and

guidelines, “[a]ny deviation . . . did not impair the reliability of his

investigation or the principles he employed.”

¶ 41 At trial, Means testified that, in his opinion, he had “no doubt”

that the fire in this case had been set intentionally. He said that

the fire started near a downed log about thirty feet from the fire pit

at the campsite and that the source of ignition was one of two

lighters, one found at the scene and the other found in defendant’s

pocket.

17
¶ 42 Defendant vigorously cross-examined Means about the

methodology that he had employed. Defendant also called his own

expert witness to poke holes in Means’s analysis and conclusions.

¶ 43 On appeal, defendant argues, as he did at the hearing, that

the methods Means used to investigate the fire were unreliable

because they were neither scientific nor compliant with the

standards and guidelines for fire investigation. He does not,

however, contest the court’s conclusion that the scientific principles

underlying the standards and guidelines are reasonably reliable,

and as we have mentioned, concerns about the accuracy of an

expert’s application of a reliable methodology go to the weight of the

expert’s testimony, not its admissibility. The court therefore did not

abuse its discretion by allowing Means to testify about the origin

and the cause of the fire in this case.

2. Klein

¶ 44 Defendant next asserts — and for the first time on appeal —

that another of the prosecution’s fire experts, Klein, offered similarly

problematic testimony about the origin and cause of the fire and

that, had he hewed more closely to the applicable standards and

guidelines for fire investigation, he would have classified the fire’s

18
cause as “undetermined” rather than “incendiary.” But just like

defendant’s arguments with respect to Means’s testimony, we view

his contentions concerning Klein’s testimony as going to the weight

the jury should have afforded the testimony, not its admissibility.

3. Babeon

¶ 45 Last, defendant asserts that Babeon, who was both a fact

witness and an expert witness at trial, should not have been

permitted to offer any expert testimony and, in his capacity as an

expert witness, improperly invaded the jury’s province.

¶ 46 With respect to defendant’s first assertion, he submits that

Babeon was not qualified to testify as an expert because his fire

investigation experience was “limited to investigating building fires.”

But Babeon testified that he had been a firefighter for decades; that

he conducted approximately a dozen fire investigations every year,

complete with origin and cause findings; and that he had been

trained to do so. As a result, we cannot say that the court’s

decision to recognize him as an expert in fire investigation was an

abuse of discretion. Any relevant deficiencies in Babeon’s

investigative experience could have been fleshed out on cross-

examination.

19
¶ 47 With respect to defendant’s second concern, he argues that

the court erred by allowing Babeon to tell the jury that, with respect

to the cause of the fire in this case, he thought “there was

something potentially involving a crime” and that, based on the

severity of the victim’s injuries, it was possible that the gasoline had

been “put onto” the victim on purpose. Although defense counsel

did not object to the statements at trial, defendant now contends

that they invaded the province of the jury by, in effect, providing an

“expert opinion that the crimes of arson and murder had been

proven.” We disagree with that conclusion. Babeon’s statements

were far too equivocal to have usurped the jury’s factfinding role.

VI. Prosecutorial Misconduct

¶ 48 Turning to defendant’s prosecutorial misconduct allegations,

he points to a handful of instances in which the prosecutors’

statements at trial supposedly crossed the line. Although some of

the statements were improper, we are not convinced that any of the

improper statements require us to reverse defendant’s convictions.

A. Standard of Review

¶ 49 To evaluate a claim of prosecutorial misconduct, we follow a

two-step process: first, we determine whether the prosecutor’s

20
conduct was improper based on the totality of the circumstances;

second, if the conduct was improper, we must decide whether it

warrants reversal according to the applicable standard of review.

Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

¶ 50 When a defendant objects at trial to misconduct, and the

misconduct is not constitutional in nature, we review for harmless

error, meaning that we will disregard the misconduct if “there is no

reasonable probability that it contributed to the defendant’s

conviction.” Crider v. People, 186 P.3d 39, 42 (Colo. 2008); see also

Crim. P. 52(a) (“Any error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded.”). In

contrast, when a defendant does not object at trial, we review the

misconduct for plain error. People v. Robinson, 2019 CO 102, ¶ 19.

Under this standard, “we will only reverse when the misconduct

was ‘flagrantly, glaringly, or tremendously improper.’” Id. (quoting

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

B. Analysis

¶ 51 Defendant claims that the prosecution engaged in misconduct

both during its cross-examination of his fire expert and during its

closing argument. We will deal with the statements in turn.

21
1. Cross-Examination

¶ 52 As we have mentioned, defendant hired his own expert,

Thomas Fee, to testify about fire investigations. On direct

examination, Fee told the jurors about his nearly five decades of

experience as a fire investigator, including his many years working

for a city in Los Angeles County. He further explained that the fire

investigation standards at issue in this case did not exist until the

early 1990s, and that, as a result, folks in the fire investigation

community realized that they had been relying on “junk science” for

years. For example, Fee testified that he had been laboring under a

misconception about the effects of fire on concrete and had

“testified to that in court.”

¶ 53 On cross-examination, the prosecutor tried to get Fee to agree

with the proposition that investigations by the Los Angeles County

Sheriff’s Office “don’t hold a candle” to the investigation in this case.

The defense objected to the question, and the court overruled the

objection. Fee responded that, in his experience, investigations by

the Los Angeles County Sheriff’s Office are “very thorough.”

¶ 54 Then, latching on to Fee’s statements about improvements in

fire investigations over the last half century, the prosecutor asked

22
Fee if his standards before the 1990s were “pretty lax.” Fee

responded that he disagreed that his standards were subpar, even if

the industry’s standards were. But, after Fee admitted that his own

standards at the time relied on some bad science, the prosecutor

continued: “So [it’s] fair to say that on several occasions during that

period of time, you testified in a court, and you gave false and

misleading testimony.” Fee disagreed that he had knowingly

provided false and misleading testimony, but he admitted that he,

along with “every other fire investigator in the profession,” realized

after the fact that they had been providing false and misleading

testimony.

¶ 55 Next, the prosecutor asked Fee if he had a list of the cases

between 1962 and 1990 in which he had presented false testimony

and if he had ever taken any steps to remedy the false testimony

that he gave in those specific cases. Fee said that he did not and

had not.

¶ 56 Later, the prosecutor highlighted the amount of money that

Fee had been paid for his work in this case, stating, “And after

$24,000 worth of work, you have no definitive conclusion about

how this fire started?” Fee answered that he did not “have the facts

23
to arrive at a conclusion on how this fire started.” The prosecutor

reprised this assertion during closing argument.

¶ 57 On appeal, defendant contends that the above-described

portions of the prosecutor’s cross-examination amounted to

misconduct. We are not persuaded.

¶ 58 First, unlike defendant, we do not read the prosecutor’s

clumsy questioning about fire investigations in Los Angeles County

as impermissibly vouching for the investigation in this case.

¶ 59 Second, the prosecutor’s questioning about Fee’s history as a

witness was appropriate given his admission on direct examination

that he had previously testified in court to “junk science.”

¶ 60 Third, an expert witness’s compensation is always fair game

for cross-examination, People v. Sommers, 200 P.3d 1089, 1096

(Colo. App. 2008), and, if anything, we think the prosecutor’s

questioning worked in defendant’s favor. As defendant tells us on

appeal, Fee was hired to decide whether the evidence collected in

this case was “sufficient to arrive at a scientifically based opinion”

as to the origin and cause of the fire. Thus, Fee’s answer to the

prosecutor — the evidence was insufficient for that purpose — was

entirely consistent with defendant’s position that the prosecution’s

24
experts should not be so sure about their conclusions. For the

same reasons, we are not persuaded that the prosecutor’s related

comment during closing argument was improper.

2. Closing Argument

¶ 61 Defendant also takes issue with different parts of the

prosecutor’s closing argument. (We recognize that the prosecution

did not respond to this contention in their answer brief. Defendant

asks us to treat this silence as an implicit confession of error. Even

if the prosecution had confessed error, we have an independent

obligation to review the record and reach a just conclusion under

the facts and the law. See Young v. United States, 315 U.S. 257,

258-59 (1942)(A confession of error “does not relieve this Court of

the performance of the judicial function. The considered judgment

of law enforcement officers that reversible error has been committed

is entitled to great weight, but our judicial obligations compel us to

examine independently the errors confessed. . . . [O]ur judgments

are precedents, and the proper administration of the criminal law

cannot be left merely to the stipulation of parties.”).)

¶ 62 As our supreme court has explained, closing arguments “must

be confined to the evidence admitted at trial, the inferences that can

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reasonably and fairly be drawn therefrom, and the instructions of

law submitted to the jury.” People v. DeHerrera, 697 P.2d 734, 743

(Colo. 1985). Moreover, “[a] prosecutor may not use arguments

calculated to inflame the passions and prejudices of the jury,

denigrate defense counsel, misstate the evidence, or assert a

personal opinion as to the credibility of witnesses.” People v.

Nardine, 2016 COA 85, ¶ 35. At the same time, “a prosecutor has

wide latitude in the language and presentation style used to obtain

justice,” Domingo-Gomez, 125 P.3d at 1048, and may employ

rhetorical devices, engage in oratorical embellishment, and use

metaphorical nuance, People v. Carter, 2015 COA 24M-2, ¶ 70.

¶ 63 We evaluate improper argument claims “in the context of the

argument as a whole and in light of the evidence before the jury.”

People v. Samson, 2012 COA 167, ¶ 30.

¶ 64 At the outset of the prosecutor’s closing argument, and over

an objection from the defense, a prosecutor told the jurors a brief

story about how as a child he was caught secretly lighting matches

with a friend. Defendant argues that the story was irrelevant and

impermissibly introduced the prosecutor’s “personal knowledge”

into the case. While we agree that the story was improper because

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it was not confined to the evidence admitted at trial, there is no

reasonable probability that it contributed to defendant’s conviction.

¶ 65 Next, defendant contends that the prosecutor misstated the

law when, in reference to the charges, he told the jury, “You can go

in order of these charges any way you want, but with the murder

charges, you want to start with the top charge first,” and then, after

an objection from the defense and being told to rephrase, “I’m

suggesting to you analytically that you want to start at the first

charge, the highest charge, of murder in the first degree. . . . If he

is not guilty of that charge, then you would consider murder in the

second degree.”

¶ 66 Colorado is a “soft transition” jurisdiction, meaning that, when

a defendant faces a charge that has lesser included offenses, “the

jury need not unanimously acquit the defendant of the greater

offense before considering the lesser included offenses.” People v.

LePage, 397 P.3d 1074, 1077 (Colo. App. 2011), aff’d on other

grounds, 2014 CO 13. Accordingly, “it is error to instruct a jury

that it must unanimously acquit a defendant of a greater offense

before it may consider a lesser included offense.” People v.

Zamarripa-Diaz, 187 P.3d 1120, 1122 (Colo. App. 2008).

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¶ 67 Defendant claims that the prosecutor’s “suggestion” to the jury

was a misstatement of law because it communicated that the jury

was required to acquit him of first degree murder before it could

consider any lesser included offense. We disagree. Telling a jury

that it is a good idea to start with the greatest offense is not the

same thing as telling the jury that it must do so. People v. Bobian,

2019 COA 183, ¶ 34.

¶ 68 Defendant also asserts that the prosecutor improperly

appealed to the passions and prejudices of the jury when he stated

that this case was “a tragedy” for the victim and her family, that the

trial was “a public reckoning,” and that the jury was “the

conscience of our community.” We agree that the prosecutor went

too far with those comments. See People v. Rodriguez, 794 P.2d

965, 977 (Colo. 1990)(“[W]e have held that prosecutors should not

appeal to the jury to consider the wishes of the community in

reaching a verdict.”). Still, the comments played a small role in the

argument as a whole, and given the strong evidence of defendant’s

guilt, we cannot say there is a reasonable probability that they

contributed to his conviction.

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¶ 69 Last, defendant contends that the prosecutor’s rebuttal closing

argument denigrated the defense by insinuating that defendant’s

attorney’s closing argument “blamed [the victim’s] family” for her

death. True, the prosecutor’s argument on this point was an

uncharitable interpretation of one of the statements defense

counsel made during closing argument, but it was not improper.

See People v. Collins, 250 P.3d 668, 678 (Colo. App. 2010)(“[A]

prosecutor has considerable latitude in replying to opposing

counsel’s argument . . . .”).

VII. Other Acts Evidence

¶ 70 Moving on, defendant asserts that the court erred by allowing

the prosecution to introduce certain other acts evidence at trial. We

conclude that the court did not err.

A. Standard of Review

¶ 71 We review a trial court’s ruling on the admissibility of other

acts evidence for an abuse of discretion, and we will only disturb

the court’s ruling on appeal if it was manifestly arbitrary,

unreasonable, or unfair. Bondsteel v. People, 2019 CO 26, ¶ 45.

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B. Analysis

¶ 72 Before its recent amendment — and as it applies in this case

— CRE 404(b) (2020) stated that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person

in order to show that he acted in conformity therewith.” Such

evidence could still be admitted, however, “for other purposes, such

as proof of motive, . . . intent, . . . or absence of mistake or

accident.” Id. (The purposes listed are illustrative, not exhaustive,

and “Rule 404(b) does not necessarily bar evidence when it is

offered for any other purpose.” Perez v. People, 2015 CO 45, ¶ 24.)

¶ 73 Additionally, in recognition “that domestic violence is

frequently cyclical in nature, involves patterns of abuse, and can

consist of harm with escalating levels of seriousness,” the

legislature enacted a law providing for the admission of evidence of

other acts of domestic violence in prosecutions involving domestic

violence. § 18-6-801.5, C.R.S. 2021.

¶ 74 For other acts evidence to be admissible under either Rule

404(b) or section 18-6-801.5, the trial court must first determine,

by a preponderance of the evidence, that the other act happened

and that the defendant committed the act. People v. Garner, 806

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P.2d 366, 373 (Colo. 1991). (We note that the trial court did not

make specific findings on this issue, but, based on the court’s

decision that this evidence was admissible, we conclude that the

court implicitly decided that it was satisfied, by a preponderance of

the evidence, that defendant had committed the other acts. See

People v. Warren, 55 P.3d 809, 814 (Colo. App. 2002).)

¶ 75 After those threshold findings, the court must further find that

(1) the evidence relates to a material fact; (2) the evidence is

logically relevant; (3) the logical relevance of the evidence is

independent of the prohibited intermediate inference that the

defendant has a bad character and committed the crime charged

because he acted in conformity with his bad character; and (4) the

probative value of the evidence is not substantially outweighed by

the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314,

1318 (Colo. 1990).

¶ 76 In this case, the court permitted the prosecution to introduce

two instances of defendant’s other acts at trial: (1) evidence of an

argument between defendant and the victim that resulted in

defendant damaging the victim’s television; and (2) evidence that

defendant had hit the victim’s sons. Specifically, the court found

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that the television incident was admissible to show that the victim’s

death was not, as defendant claimed, an accident, to show that

defendant acted with intent, and to show that he had a motive. The

court ruled that the evidence that defendant had hit the victim’s

sons was admissible to show why the six-year-old son had given

contradictory statements about how the victim had died.

¶ 77 We conclude that the court did not abuse its discretion in

either instance. The television incident was plainly admissible

under section 18-6-801.5 to rebut defendant’s accident defense.

The abuse evidence, meanwhile, was admissible to explain that the

reason the child had told different stories about how the victim died

was because he was afraid of defendant. See 1 Edward J.

Imwinkelried, Uncharged Misconduct Evidence § 6:26, Westlaw

(database updated Jan. 2022) (noting that a defendant’s uncharged

misconduct may serve as the explanation for a witness’s

contradictory statements). Defendant’s other concerns about the

evidence lack merit.

VIII. Cumulative Error

¶ 78 Defendant next contends that he is entitled to a new trial

because the cumulative effect of the errors in this case was to

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deprive him of a fair trial. We are not persuaded. As we have

explained, the only errors in this case were the two exceedingly brief

instances of prosecutorial misconduct during closing arguments.

Even in the aggregate, the errors did not deprive defendant of a fair

trial because they were not so prejudicial that, collectively, they

substantially affected the trial’s fairness or the integrity of the trial’s

factfinding process. See Howard-Walker v. People, 2019 CO 69, ¶¶

24-25.

IX. Mittimus Correction

¶ 79 Finally, defendant asserts that his mittimus must be corrected

— by applying Crim. P. 36, a rule concerning clerical mistakes — to

reflect that his conviction for second degree murder merges into his

conviction for felony murder. Although we agree that his murder

convictions merge, see People v. Wood, 2019 CO 7, ¶ 27 (“[U]nder

Colorado law, ‘[o]nly one conviction of murder is permitted for the

killing of one victim.’” (quoting People v. Lowe, 660 P.2d 1261,

1270-71 (Colo. 1983))), we disagree that Crim. P. 36 is the proper

vehicle for relief because the court did not make a clerical error in

this case. The appropriate remedy is for us to return the case to

the trial court so that the court can vacate defendant’s conviction

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for second degree murder, leaving his conviction for felony murder

intact. Page v. People, 2017 CO 88, ¶ 20.

¶ 80 The judgment is affirmed, and the case is remanded to the

trial court with directions to vacate defendant’s conviction for

second degree murder, leaving his conviction for felony murder

intact.

JUDGE PAWAR and JUDGE BROWN concur.

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