Peo v. Kraaz

19CA1573 Peo v Kraaz 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1573

City and County of Denver District Court No. 18CR4171

Honorable Michael J. Vallejos, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jaymi L. Kraaz,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE BERGER

Román and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 7, 2021

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Joseph T. Goodner, Alternate Defense Counsel, Englewood, Colorado for

Defendant-Appellant

1

¶ 1 Jaymi L. Kraaz, defendant, appeals her convictions for first

and second degree aggravated motor vehicle theft. We reject her

challenge to the sufficiency of the evidence. But we agree that the

prosecutor committed misconduct during voir dire by indoctrinating

jurors with the prosecution’s theory of the case and also by

obtaining commitments for a guilty verdict. On plain error review,

we conclude that the misconduct casts serious doubt on the

reliability of Kraaz’s convictions, so we reverse and remand for a

new trial.

I. Relevant Facts and Procedural History

¶ 2 The prosecution’s evidence allowed the jury to find the

following facts. Kraaz rented a car through “Fluid Market,” a

car-sharing application, from May 7, 2018, through May 11, 2018.

Using the app, Kraaz created an account, uploaded her driver’s

license, and selected a car. Kraaz agreed to Fluid Market’s terms

and conditions, which forbade anyone except her from driving the

car and warned that she could be criminally prosecuted if she did

not return the car on time. Kraaz never returned the car.

¶ 3 Fluid Market’s account manager waited until May 13, 2018, to

contact Kraaz about the car because the company “usually wait[s]

2

48 hours for them to get back.” The court admitted the following

text message conversation between Kraaz and the account

manager:

[Account manager]: this is Liz from fluid I need

you to return my Toyota ASAP I am going to

report it stolen if I don’t hear from you in the

next hour

[Kraaz]: Liz I apologize . . . I have been

camping without my phone. Trying to extend

on the app. & pay the late fee.

[Account manager]: Send me a picture of the

pickup and drop-off fuel in mileage and the

reservation and start a new one

Or when can you return it

Let me know when you are planning on

returning the car asap

[Kraaz]: We leaving Gunnison. Will return by

noon tomorrow. Will start a new reservation.

When on wifi. Gonna stop soon.

The account manager texted Kraaz over the next two days,

demanding that she return the car and threatening to report it

stolen. Kraaz did not respond until May 16, 2018:

[Kraaz]: I am so sorry. I will be touch [sic]

soon & pay whatever amount needed . . . i

have had some unforeseen tragedies take place

the past couple days . . . i promise i am not

trying to get over on you at all im [sic] trying to

get it returned asap[.]

3

Later that day, Kraaz texted the account manager that someone else

had the car. The manager responded, “[h]e just called us and said

you have the car. We need it back asap. You rented the car and

everything is under your name.” Kraaz texted back, denying that

she had the car or that she ever had the car. Kraaz and the

account manager continued texting about the car for a few days.

Then Kraaz stopped responding.

¶ 4 Fluid Market’s owner filed a police report for theft of the

vehicle. Eventually, the car was found in Minnesota.

¶ 5 The prosecution charged Kraaz with first and second degree

aggravated motor vehicle theft. See § 18-4-409(2)(a), (4), C.R.S.

2020. At trial, Kraaz’s defense was that someone stole the car from

her (either the man who called the account manager or his friend).

The jury convicted Kraaz on both counts.

II. Sufficiency of the Evidence

¶ 6 Kraaz first contends that insufficient evidence supports her

convictions. We address this argument because a reversal due to

insufficient evidence “may preclude retrial” on double jeopardy

grounds. People v. Coahran, 2019 COA 6, ¶ 40 (quoting People v.

Marciano, 2014 COA 92M-2, ¶ 42).

4

A. Law

¶ 7 We review the sufficiency of the evidence de novo “to determine

whether the evidence before the jury was sufficient both in quantity

and quality to sustain the defendant’s conviction.” Clark v. People,

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

¶ 8 Our inquiry is whether the direct and circumstantial evidence,

when viewed as a whole and in the light most favorable to the

prosecution, is sufficient to support a conclusion by a reasonable

fact finder that Kraaz is guilty beyond a reasonable doubt. Id. “We

do not sit as a thirteenth juror to determine the weight of the

evidence presented to the jury.” Id. at 1293. Instead, “it is for the

fact finder to determine the difficult questions of witness credibility

and the weight to be given to conflicting items of evidence.” People

v. Kessler, 2018 COA 60, ¶ 12.

¶ 9 “[I]f there is evidence upon which one may reasonably infer an

element of the crime, the evidence is sufficient to sustain that

element.” Id. (citation omitted). Additionally, “an actor’s state of

mind is normally not subject to direct proof and must be inferred

from his or her actions and the circumstances surrounding the

occurrence.” Id.

5

B. Application

¶ 10 A person commits aggravated motor vehicle theft in the second

degree if she “knowingly obtains or exercises control over the motor

vehicle of another without authorization.” § 18-4-409(2), (4). As

pertinent here, aggravated motor vehicle theft in the first degree

requires the prosecution to prove the additional element that the

defendant “[r]etain[ed] possession or control of the motor vehicle for

more than twenty-four hours.” § 18-4-409(2)(a).

¶ 11 Kraaz argues that there is no evidence that she knowingly

exercised unauthorized possession or control of the car for a

twenty-four-hour period. Specifically, she argues that May 14 is the

earliest her possession could have been unauthorized, based on the

account manager’s testimony that she usually waited forty-eight

hours before inquiring about missing vehicles. Even accepting

Kraaz’s doubtful premise that she had authority to use the car

through May 13, we reject her sufficiency argument.

¶ 12 A photo of Kraaz’s driver’s license was uploaded to her Fluid

Market profile. Her phone number was listed in the profile. Fluid

Market’s owner testified that Kraaz rented the car through the app

on May 7. The vehicle was due back on May 11.

6

¶ 13 On May 13, Kraaz had not returned the car. The account

manager texted Kraaz that day, demanding that she return the car.

Kraaz texted back that she was sorry and that she “will return by

noon tomorrow.” A reasonable juror could infer that Kraaz had the

car at this point.

¶ 14 Three days later, on May 16, Kraaz again apologized and said

she is “trying to get it returned asap.” After Kraaz brought up the

possibility that someone else had the car, the manager texted her,

“he just called us and said you have the car. We need it back asap.

You rented the car and everything is under your name.”

1

(Emphasis added.) A reasonable fact finder could infer from Kraaz’s

texts, the manager’s texts, and the alternate suspect’s statement,

that Kraaz still had possession of the car on May 16.

¶ 15 Therefore, a reasonable jury could have concluded that Kraaz

knowingly exercised unauthorized possession or control of the car.

1

Kraaz does not argue on appeal that any of the text messages or

statements in the text messages were hearsay or otherwise

inadmissible. Even if she had, we would still consider the text

messages in our review of the sufficiency of the evidence. We

consider all evidence before the jury, properly or improperly

admitted, when determining whether the evidence was sufficient to

support the convictions. People v. Marciano, 2014 COA 92M-2,

¶ 47.

7

Additionally, a reasonable jury could have concluded that Kraaz

knowingly exercised unauthorized possession or control of the car

for more than a twenty-four hours (May 14 through May 16). Of

course, other conclusions and reasonable inferences are possible,

but we may not reweigh the evidence. Clark, 232 P.3d at 1291.

Viewing the evidence in the light most favorable to the prosecution,

the evidence was sufficient for a reasonable jury to find the

elements of first and second degree motor vehicle theft beyond a

reasonable doubt.

III. Prosecutorial Misconduct During Voir Dire

¶ 16 Kraaz next contends that prosecutorial misconduct during or

related to voir dire deprived her of a fair trial. Specifically, she

contends that the prosecutor used voir dire to

• indoctrinate the jury to the prosecution’s theory of the

case;

• commit the jury to a guilty verdict; and

• misrepresent the law.

She also contends that the prosecutor committed misconduct

during rebuttal closing argument by telling the jurors to honor their

commitments to return a guilty verdict.

8

¶ 17 With the exception of Kraaz’s argument that the prosecutor

misrepresented the law,

2

these arguments are unpreserved.

A. Standards of Review and Reversal

¶ 18 The scope of voir dire is within the discretion of the trial court.

People v. Saiz, 660 P.2d 2, 4 (Colo. App. 1982). “The propriety of

questions to potential jurors on voir dire is within the discretion of

the trial court.” People v. Collins, 730 P.2d 293, 300 (Colo. 1986).

¶ 19 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we decide whether the misconduct warrants reversal under

the applicable standard. Id.

2

We reject the Attorney General’s contention that Kraaz did not

preserve the argument that the prosecutor misrepresented the law

during voir dire. Defense counsel objected during the prosecution’s

voir dire hypothetical, stating, “I believe there’s some confusion and

misstatement of the law. Could the Court educate the jury as to the

mens rea elements?” The court overruled the objection. “We do not

require that parties use ‘talismanic language’ to preserve particular

arguments for appeal.” People v. Melendez, 102 P.3d 315, 322

(Colo. 2004). The trial court need only be “presented with an

adequate opportunity to make findings of fact and conclusions of

law on any issue” before it. Id. That occurred here.

9

¶ 20 The standard of reversal for preserved claims of prosecutorial

misconduct is harmless error. People v. Rhea, 2014 COA 60, ¶ 42.

¶ 21 Unpreserved claims are forfeited. People v. Rediger, 2018 CO

32, ¶ 40. We review forfeited claims for plain error. Id.; see Crim.

P. 52(b). “[P]lain error review depends on the particular facts and

context of the given case, because only through an examination of

the totality of the circumstances can the appellate court deduce

whether error affected the fundamental fairness of the trial.” Wend,

235 P.3d at 1098.

¶ 22 “To constitute plain error, any prosecutorial misconduct ‘must

be flagrant or glaring or tremendously improper.’” People v. Bowers,

2021 COA 41, ¶ 54 (quoting People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004)); see also Domingo-Gomez v. People, 125 P.3d

1043, 1053 (Colo. 2005). Reversal is only warranted if the

misconduct “so undermine[d] the fundamental fairness of the trial

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

conviction.’” Bowers, ¶ 54 (quoting Weinreich, 98 P.3d at 924).

“Factors to consider include the language used, the context in

which the statements were made, and the strength of the evidence

supporting the conviction.” Domingo-Gomez, 125 P.3d at 1053.

10

¶ 23 Unlike forfeiture, “waiver extinguishes error, and therefore

appellate review.” Rediger, ¶ 40. The Attorney General argues that

Kraaz waived her first argument (that the prosecution used voir dire

to educate the jury about its theory of the case) by not objecting.

¶ 24 We disagree. Waiver is “the intentional relinquishment of a

known right or privilege.” Id. at ¶ 39 (citation omitted) (emphasis in

original). The Attorney General does not cite any evidence that

Kraaz intended to waive her argument. Instead, we conclude that

Kraaz’s lack of objection to any of the extensive voir dire dialogue

was “the failure to make the timely assertion of a right,” which

constitutes forfeiture. Id. The Attorney General cites People v.

Shipman, 747 P.2d 1, 3 (Colo. App. 1987), in support of the waiver

argument, but that court of appeals case predates, and is

inconsistent with, the supreme court’s decision in Rediger.

¶ 25 The Attorney General also cites Crim. P. 24(b)(2) in support of

its waiver argument, but that rule is inapplicable. Crim. P. 24(b)(2)

states, “[a]ll matters pertaining to the qualifications and competency

of the prospective jurors shall be deemed waived by the parties if not

raised prior to the swearing in of the jury to try the case.”

(Emphasis added.) Kraaz does not argue that the jurors were

11

unqualified or incompetent. See § 13-71-105, C.R.S. 2020

(detailing juror qualifications). Instead, she argues that the

prosecutor committed reversible misconduct. Crim. P. 24(b)(2) is

therefore inapposite. Kraaz’s claim was not waived.

B. Additional Facts

¶ 26 The court gave each side thirty minutes to conduct voir dire.

The prosecutor spent her allotted time almost entirely on a

hypothetical involving a library patron with an overdue book.

3

The

following lengthy colloquy is a sample of the prosecutor’s voir dire:

[Prosecutor]: imagine [your sister] did work for

a public library. [Library patron] comes in.

She checks out a book. It’s a rare book, but

your sister knows her very well. . . . She

checks that book out for about two weeks, and

two weeks come and go, and [library patron]

hasn’t returned the book. Your sister calls

her, leaves her a voicemail. She calls her. She

doesn’t answer. She leaves a voicemail and

says please return my book. She does that for

three straight days. Never gets an answer. At

that point, in your opinion, has she stolen the

book from the library?

3

The prosecutor began voir dire with one unrelated question (Who

is “excited to do jury service?”), received two answers, and then

used the rest of her time to question the jurors about the

overdue-library-book hypothetical.

12

[Prospective Juror]: I’d like to think she hasn’t

and misplaced it; but probably, technically,

yes.

[Prosecutor]: She’s not responding. That’s all

you know. It’s past the due date. In your

opinion, that would be theft at that point?

[Prospective Juror]: Yes.

[Prosecutor]: Without more information?

[Prospective Juror]: Yes.

[Prosecutor]: So let’s say now then that she

does call back, and she says I’m so sorry. My

dog just died. I’ve been struggling a little bit.

Can I bring it back in two days, and your sister

says sure. She waits those two days. . . . She

didn’t come back. She didn’t bring the book

back. At that point, are we for sure that’s theft

in your mind?

[Prospective Juror]: Technically, yes.

[Prosecutor]: What about the technical part?

Do you feel sorry for her?

[Prospective Juror]: Of course I feel sorry for

her. All of these other things are happening in

her world, but she’s had some warnings.

[Prosecutor]: So let’s just say [library patron]

was sitting over here, that she was charged

with theft. That was the scenario. Could you

find her guilty of theft?

[Prospective Juror]: Technically, yes.

[Prosecutor]: Would you feel sympathetic

towards her given what’s happened with her

13

dog? Maybe there’s some other personal

things going on that you don’t know about.

Would you then kind of feel bad about finding

her guilty?

[Prospective Juror]: Yes.

[Prosecutor]: Would you to the point of finding

her not guilty because of her situation with the

dog?

[Prospective Juror]: No.

(Emphasis added.)

¶ 27 Later, while questioning a different prospective juror, the

prosecutor expanded the hypothetical:

[Prosecutor]: So let’s say she does call back,

and this is a week later after the due date and

says actually my — I lent the book to my

husband. Actually, now we’re getting divorced.

I’ve been trying to get the book back, but he

just won’t give it to me. Can I get one more

week to try to get the book back? Her sister

says sure. That week comes and goes. She

still doesn’t have the book. Is she technically

guilty of theft?

[Prospective Juror]: Yes.

[Prosecutor]: Could you find her guilty of theft?

[Prospective Juror]: Yes.

[Prosecutor]: Are you going to feel sorry for

her?

[Prospective Juror]: No.

14

. . . .

[Prosecutor]: Let’s just say that [library

patron’s] sister leaves a voicemail and says if

you don’t return the book, I’m actually going to

file a police report, and that’s when [library

patron] actually responds. Does that change

your opinion of whether she’s guilty of theft or

not?

[Prospective Juror]: Not necessarily, because

she still could be guilty of stealing it, and she’s

only responding because of the threat.

The prosecutor also asked the prospective jurors how they would

feel if there was a grace period for returning library books before

they were overdue, and if they would find the library patron guilty

of theft if she did not return the book before the grace period

expired.

¶ 28 Later, when one prospective juror indicated that he would find

the library patron guilty of theft, the prosecutor asked all of the

prospective jurors, “Who agrees with [prospective juror B]? . . . Who

agrees with him on that? [Prospective juror W], you didn’t raise

your hand. . . . Why not?” The prosecutor questioned prospective

juror W about why she did not think the library patron was guilty,

until finally the prospective juror conceded that certain facts made

it “more likely [that] she would be guilty.”

15

¶ 29 After hearing the prosecutor question ten prospective jurors

about the overdue library book, another prospective juror offered

this opinion:

[Prospective Juror]: The person that checked

out the book is the one that engaged in the

contract. So the book is then their

responsibility. So the question is if she gave

the book to her husband who then sold it, it’s

still her responsibility. If the husband stole

the book and then sold it, then she can file a

police report against her husband.

[Prosecutor]: I like your opinions.

[Prospective Juror]: Thank you.

[Prosecutor]: [Prospective juror], let’s just say

that her husband actually does steal it from

her. She was taken advantage of in this

pending divorce, but she doesn't file a police

report.

[Prospective Juror]: Then she’s guilty.

(Emphasis added.)

¶ 30 In total, the prosecutor questioned at least twenty-one

prospective jurors about the overdue library book. When a

prospective juror doubted that the library patron was guilty, the

prosecutor pushed back (“Why are you hesitating?”), asked

additional questions (“In theory, they both could be liable in your

mind?”), or made changes to the hypothetical until the prospective

16

juror agreed that the library patron was guilty. The prosecutor

elicited confirmation from the prospective jurors that the library

patron was guilty of theft, or that they would find someone like her

guilty of theft if they were presented with similar facts.

¶ 31 Of the prospective jurors questioned about the library

hypothetical, at least ten were on the jury that convicted Kraaz.

And each of those jurors expressed some degree of agreement with

the prosecutor that the library patron was guilty.

¶ 32 Inexplicably, Kraaz’s counsel did not object to any of this, save

one contention that the prosecutor’s hypothetical misrepresented

the law (see supra note 2).

¶ 33 Then, in rebuttal closing argument, the prosecutor argued,

[T]hink back to voir dire when we were talking

about that book, and how [library patron] and

her husband took the book from her, or she

lent it to him. Yes. At the end of the day, it

was [library patron] who checked out the book,

who agreed to return it, who did not return it.

That is absolutely the case here. Ms. Kraaz

rented the car here, picked it up, didn’t return

it. As soon as she sends the text message of

[“]I’m up in Gunnison[”], and [“]I’m camping,[”]

she’s committed the crime.

(Emphasis added.) Again, Kraaz’s counsel did not object.

17

C. Law of Voir Dire

¶ 34 “To receive a fair trial, the defendant must be tried by an

impartial jury.” People v. Wilson, 2013 COA 75, ¶ 12. The purpose

of voir dire, therefore, is “to allow counsel ‘to determine whether any

potential jurors possessed any beliefs that would bias them such as

to prevent [the defendant] from receiving a fair trial.’” Id. (quoting

People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996)). This is voir

dire’s “only proper purpose.” Shipman, 747 P.2d at 3.

¶ 35 “Counsel may not use voir dire for the purpose of instructing

or educating the jury.” Id. “Voir dire may not be used to instruct

the jury regarding the law” or a party’s theory of the case. People v.

Lybarger, 790 P.2d 855, 859 (Colo. App. 1989), rev’d on other

grounds, 807 P.2d 570 (Colo. 1991).

¶ 36 The supreme court employed these principles in Edwards v.

People, 160 Colo. 395, 418 P.2d 174 (1966). In that case, the

defendant was charged with second degree murder for shooting a

boarder in his home. Id. at 397-99, 418 P.2d at 175-76. The

defendant wanted to ask prospective jurors, “[i]f it should appear

that the wife of the defendant in this case and the deceased were

unduly intimate, could you and would you, notwithstanding that

18

fact, return a verdict based wholly and solely upon the evidence and

instructions of the court?” Id. at 401, 418 P.2d at 177. The trial

court disallowed the question. Id. The supreme court agreed that

the tendered question was improper, reasoning, “[i]t is not the

purpose of voir dire examination by counsel to educate the

prospective panel of jurors to a particular theory of the case.” Id. at

402, 418 P.2d at 177.

¶ 37 A division of this court extrapolated on these points:

The impression is inescapable that the aim of

counsel is no longer exclusion of unfit or

partial or biased jurors. It has become the

selection of a jury as favorable to the party’s

point of view as indoctrination through the

medium of questions on assumed facts and

rules of law . . . .

. . . .

Under the guise of eliciting information they

attempt to impart to the jurors a conception of

the law highly favorable to one side of the case.

Saiz, 660 P.2d at 4 (quoting State v. Manley, 255 A.2d 193, 204 n.2

(N.J. 1969)) (emphasis added). The Saiz division concluded that the

trial court was well within its discretion to exclude these types of

questions. Id.

19

D. The Prosecution’s Conduct Was Improper

¶ 38 The overdue-library-book hypothetical was obviously

constructed to teach the jury the prosecution’s theory of the case.

There are no other reasonable conclusions to be drawn. The facts

of the hypothetical closely mirrored the facts pertinent to Kraaz’s

case, including minute details like a third party stealing the

borrowed item, threats of filing a police report, and a grace period.

The prosecutor repeatedly pushed back against prospective jurors

who did not think the library patron was guilty, while also

encouraging and agreeing with prospective jurors who said she was

guilty. This imparted to the jurors the prosecutor’s belief that the

library patron was guilty, and, therefore, that they should find

Kraaz guilty in an analogous situation.

¶ 39 The Attorney General does not appear to dispute any of this.

Instead, the Attorney General argues that the prosecutor’s conduct

did not rise to the level of plain error because her questions were

not obviously contrary to established Colorado law. We reject this

argument. A bedrock principle of voir dire is that it may not be

used to teach the jury a party’s theory of the case. Edwards, 160

Colo. at 402, 418 P.2d at 177; Lybarger, 790 P.2d at 859; Shipman,

20

747 P.2d at 3; Saiz, 660 P.2d at 4. The prosecutor’s conduct was a

flagrant violation of this principle.

¶ 40 But the prosecutor’s misconduct went further. She did not

merely teach her theory of the case: she also obtained commitments

from prospective jurors to find the library patron guilty. The

prosecutor got every prospective juror with whom she spoke to

agree that the library patron was guilty of theft, and, in some cases,

that they would find someone guilty of theft if presented with

similar facts.

¶ 41 The Attorney General argues that any error was not plain

because no Colorado case has disapproved of questions seeking to

pre-commit jurors to a guilty verdict. See United States v. Johnson,

366 F. Supp. 2d 822, 842 (N.D. Iowa 2005) (referring to these types

of questions as “stake-out” questions). But a juror’s commitment to

convict is not distinct from the voir dire prohibitions established in

Colorado law. Rather, pre-commitment is a flagrant example of

Colorado’s longstanding prohibition: a party may not use voir dire

to teach the jury its theory of the case. Here, more than merely

teaching her theory of the case, the prosecutor obtained each

prospective juror’s agreement with that theory. Accordingly, we

21

reject the Attorney General’s argument that the error was not plain

due to a lack of binding case law regarding pre-commitments.

¶ 42 The Attorney General also argues that asking for

pre-commitment to a guilty verdict was not error because the

hypothetical did not involve auto theft. We reject this argument.

As discussed, the prosecutor’s hypothetical mirrored the relevant

facts of Kraaz’s case down to granular details. The only difference

the Attorney General identifies is that the hypothetical involved a

book, not a car. Indeed, despite this lone difference, the prosecutor

explicitly argued the similarities between Kraaz’s case and the

hypothetical during rebuttal, stating that the library hypothetical “is

this case.”

¶ 43 In sum, the prosecution’s voir dire questions led the jury to

agree with the prosecution’s theory of the case before any evidence

had been presented. Viewing the prosecutor’s statements in

context and under the totality of the circumstances, we conclude

that this misconduct was flagrant, glaring, and tremendously

improper. Domingo-Gomez, 125 P.3d at 1053.

22

E. Reversal is Required

¶ 44 The improper hypothetical and the pre-commitment questions

were essentially the first and last statements the jury heard from

the prosecutor. Before presenting any evidence, for almost thirty

minutes, the prosecutor taught her theory of the case and elicited

agreement with it from at least ten of the jurors who convicted

Kraaz.

¶ 45 Then, the prosecutor reminded the jury about all of this

during rebuttal closing. Specifically, the prosecutor asked the jury

to remember their voir dire discussions and the library book

hypothetical. The prosecutor then said, “That is absolutely the case

here. Ms. Kraaz rented the car here, picked it up, didn’t return it.

As soon as she sends the text message of [‘]I’m up in Gunnison,[’]

and [‘]I’m camping,[’] she’s committed the crime.” (Emphasis

added.)

¶ 46 With this statement, the prosecutor not only reinforced the

hypothetical — she misrepresented the law. Telling jurors that

Kraaz “committed the crime” when she sent the message ignores

that the jury had to find beyond a reasonable doubt that Kraaz

“knowingly obtain[ed] or exercise[d] control over the motor vehicle of

23

another without authorization.” § 18-4-409(2). Worse, this element

of the crime was central to the dispute in this case, as discussed

below. Although the jury was later correctly instructed on the law

before deliberations, the prosecutor still used its last word to

misrepresent the law.

¶ 47 Referencing the improper hypothetical and the jurors’

pre-commitments and misrepresenting the law are prototypes of

unfair prejudice. “Rebuttal 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.

¶ 48 We must also analyze the impact of prosecutorial misconduct

in light of “the strength of the evidence supporting the conviction.”

Id. at 1053. The evidence against Kraaz was not overwhelming.

¶ 49 The prosecution’s case was essentially that Kraaz rented a car

but did not return it. But, as discussed above, the prosecution had

to prove beyond a reasonable doubt that Kraaz knowingly exercised

control over the car. See § 18-4-409(2). The text messages are the

only evidence that Kraaz, as opposed to some other person,

exercised control over the car after her authorization to do so had

24

ended. Kraaz texted that she was in Gunnison, that she was sorry,

and that she was trying to return the car.

¶ 50 The text message conversation also included a self-serving

hearsay statement from an alternate suspect that Kraaz had the

car. While a reasonable jury could infer that Kraaz was exercising

control over the vehicle when those texts were sent (see supra Part

II.B), this evidence is by no means dispositive.

¶ 51 The relative weakness of the prosecution’s case supports our

conclusion that the prosecutorial misconduct casts serious doubt

on the reliability of the convictions.

IV. Remaining Contentions

¶ 52 Given our disposition, we need not and do not address Kraaz’s

remaining contentions.

4

4

We note that the prosecutor argued in closing, “This isn’t about an

ax to grind, about getting convictions. It’s about whether someone

stole a car or not, and whether you want to live in a society where

someone takes a car, doesn’t return it, and they are not held

accountable.” (Emphasis added.) Kraaz objected below and raises

this issue on appeal. The prosecutor’s argument violated the

principle that prosecutors “may not urge jurors to convict a

criminal defendant in order to protect community values, preserve

civil order, or deter future lawbreaking.” People v. Ortega, 2015

COA 38, ¶ 54 (citation omitted); see also People v. Marko, 2015 COA

139, ¶ 221, aff’d on other grounds, 2018 CO 97.

25

V. Disposition

¶ 53 The judgment of conviction is reversed. The case is remanded

for a new trial.

JUDGE ROMÁN and JUDGE YUN concur.

Such arguments must be excluded on retrial.