Peo v. Gonzales

18CA1659 Peo v Gonzales 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1659

Adams County District Court No. 15CR1629

Honorable Francis C. Wasserman, Judge

Honorable Donald S. Quick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nickey Joe Gonzales,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE KUHN

Dailey and Dunn, JJ., concur

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

Announced October 7, 2021

Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Nickey Joe Gonzales, appeals the judgment of

conviction entered after a jury found him guilty of second degree

burglary and first degree criminal trespass. We vacate in part and

affirm in part.

I. Background

¶ 2 Gonzales was charged with stalking and first degree criminal

trespass after an incident at the victim’s condo. The year before the

incident, Gonzales and J.G. had divorced after a decade of

marriage. Following the divorce, they continued to live together and

tried to patch up their relationship. When things didn’t work out,

J.G. rented a condo and took on T.D. as her roommate.

¶ 3 J.G. and Gonzales stayed in touch following the divorce, and it

was “fairly common” for them to text back and forth. According to

J.G.’s trial testimony — which was often inconsistent with her prior

statements to law enforcement — Gonzales visited the condo

occasionally, stayed overnight sometimes, and kept some

possessions there.

¶ 4 The Wednesday prior to the incident, Gonzales contacted J.G.

about picking up some of his items from the condo. J.G. agreed to

let him come over that Sunday to pick up the items.

2

¶ 5 Over the next few days, Gonzales’ texts became “increasingly

desperate” and over a twenty-four-hour period, Gonzales sent

approximately 130 text messages. When J.G. stopped responding

to his texts, he showed up at her condo unannounced and knocked

on the front door.

¶ 6 Thinking Gonzales was someone else, J.G.’s roommate, T.D.,

answered the door. Gonzales — who had a “deer in the headlights”

look on his face — pushed the door open, walked inside, and

searched the condo for J.G, who was not there.

¶ 7 Finally, after the roommate told him to leave three times,

Gonzales grabbed the house phone, walked outside, and called J.G.

The roommate called 911. The police arrived and arrested

Gonzales.

¶ 8 As pertinent here, the prosecution charged Gonzales with first

degree trespass for entering or remaining in the condo unlawfully

and second degree burglary for doing so with the intent to commit

the crime of stalking — serious emotional distress.

¶ 9 To prove the burglary charge at trial, specifically the element

that Gonzales intended to commit the predicate crime of stalking —

serious emotional distress, the prosecution highlighted the contents

3

of the text messages and elicited testimony that J.G. told an officer

on the day of the incident that she was scared of Gonzales. In

support of the trespass charge, the prosecution introduced evidence

that Gonzales wasn’t on the lease, that he didn’t have a key, that

J.G. told him he wasn’t welcome there that day, that J.G. told the

roommate to call the police if he came to the condo, and that the

roommate repeatedly asked him to leave.

¶ 10 Gonzales’ theory of defense was two-fold. First, he contended

that he didn’t enter or remain in the condo unlawfully. The defense

argued that by knocking on the door, Gonzales intended to enter

the apartment lawfully and that, from his perspective, he had an

“open invitation” to go inside when the roommate opened the door.

Additionally, the defense contended that Gonzales didn’t

comprehend the roommate’s first two requests to leave but left the

condo immediately when he realized she wanted him out. The

defense also highlighted that, prior to the day of the incident,

Gonzales had never been declined entrance into the condo.

¶ 11 Second, the defense contended that Gonzales did not have the

intent to commit the predicate offense of stalking. The defense

pointed out that the text messages weren’t threatening and argued

4

that Gonzales was just trying to meet J.G. face to face so that he

could try to win her back.

¶ 12 At the close of trial, the jury found Gonzales guilty of both

counts. The court sentenced him to a term of five years

imprisonment in the custody of the Department of Corrections on

the burglary charge to be served concurrently with a two-year term

on the trespass charge.

II. Analysis

¶ 13 On appeal, Gonzales raises five issues: (1) the evidence was

insufficient to support the burglary conviction; (2) the trial court

erroneously admitted prior bad act evidence; (3) the trial court

erroneously admitted an audio recording that was cumulative and

unduly prejudicial; (4) the prosecutor committed misconduct in his

opening statement and closing argument; and (5) the burglary and

trespass convictions should have merged at sentencing

¶ 14 We agree with Gonzales on the first issue. Because the

evidence was insufficient to prove Gonzales was guilty of burglary,

we vacate that conviction and note that the constitutional

guarantees against double jeopardy bar the prosecution from

retrying him on that charge. See People v. Knobee, 2020 COA 7,

5

¶ 12 (cert. granted June 29, 2020). Because we conclude the

erroneous admission of Gonzales’ prior bad acts was harmless, we

affirm the trespassing conviction.

A. Sufficiency of the Evidence

¶ 15 Gonzales first contends that his burglary conviction must be

vacated because stalking — serious emotional distress, as pleaded

and proved at his trial, could not serve as the predicate offense for

burglary since it wasn’t a “crime against another person.” We

agree.

1. Standard of Review

¶ 16 We review sufficiency of the evidence claims — including those

raised for the first time on appeal and those that involve

preliminary questions of statutory interpretation — de novo. McCoy

v. People, 2019 CO 44, ¶ 27; Maestas v. People, 2019 CO 45, ¶ 2.

¶ 17 Likewise, we review statutory interpretation questions de novo.

People v. Sprinkle, 2021 CO 60, ¶ 12. Our goal is to ascertain and

give effect to the General Assembly’s intent. Id. at ¶ 22. We start

by examining the plain language of the statute and, reading the

statute as a whole, give its words and phrases their plain and

ordinary meaning. Id. In the absence of a legislative definition, we

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interpret a statutory term in accordance with its ordinary or natural

meaning. Cowen v. People, 2018 CO 96, ¶ 14.

2. Discussion

¶ 18 The question of whether stalking — serious emotional distress

is a “crime against another person” requires us to interpret the

burglary statute.

¶ 19 As relevant here, “[a] person commits second degree burglary,

if the person knowingly breaks an entrance into, enters unlawfully

in, or remains unlawfully after a lawful or unlawful entry in a

building or occupied structure with intent to commit therein a

crime against another person or property.” § 18-4-203(1), C.R.S.

2020.

¶ 20 The legislature has not defined the term “crime against

another person,” but two divisions of our court have interpreted the

provision in published decisions. See People v. Wright, 2021 COA

106, ¶¶ 14-27; People v. Poindexter, 2013 COA 93, ¶¶ 5-34. We

agree with and adopt the reasoning of both divisions.

¶ 21 Because the legislature didn’t define the term “crime against

another person,” both divisions looked to Black’s Law Dictionary for

guidance. Wright, ¶ 17; Poindexter, ¶ 11; see Cowen, ¶ 14 (“When

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determining the plain and ordinary meaning of words, we may

consider a definition in a recognized dictionary.”). Black’s contains

two relevant definitions, both of which aid our analysis. The

definitions concern “crimes” or “offenses” against persons

1

:

• “[C]rimes against persons. A category of criminal offenses in

which the perpetrator uses or threatens to use force.

Examples include murder, rape, aggravated assault, and

robbery.” Poindexter, ¶ 11 (quoting Black’s Law Dictionary

401 (8th ed. 2004)).

• “[O]ffense against the person. A crime against the body of

another human being. The common-law offenses against the

person were murder, manslaughter, mayhem, rape, assault,

battery, robbery, false imprisonment, abortion, seduction,

kidnapping, and abduction.” Id. (quoting Black’s Law

Dictionary at 1112).

¶ 22 Under these definitions, some offenses are always “crimes

against another person” as a matter of law. See Wright, ¶ 26

1

The terms “crime” and “offense” are synonymous under Colorado

law. § 18-1-104(1), C.R.S. 2020; People v. Poindexter, 2013 COA

93, ¶ 11.

8

(“[B]ecause subjecting another to ‘physical contact’ is an essential

element of harassment, there is no factual scenario that can

constitute harassment that would not also constitute a “crime

against a person.”).

2

Based on their elements, such offenses require

proof under any scenario that the defendant used or threatened to

use force or acted against the body of another person.

¶ 23 Other offenses, such as obstructing a peace officer, are not as

clear cut. See Poindexter, ¶¶ 29, 31. These offenses require us to

undertake a case-by-case examination of the underlying elements of

the offense as charged and proved. Id. at ¶ 26. In doing so, we

“consider the particular factual circumstances of each case and

whether the evidence established that the offender intended to

either act ‘against the body of another human being’ or ‘use[] or

threaten[] to use force.’” Wright, ¶ 22 (quoting Poindexter, ¶¶ 11,

29).

2

Like the stalking statute, the harassment statute contains

multiple subsections that set forth different ways a person can

commit the offense. Subsection (1)(a) of section 18-9-111, C.R.S.

2020 — the provision at issue in People v. Wright, 2021 COA 106 —

is the only subsection that requires proof of physical contact as an

essential element of the offense.

9

¶ 24 The legislature has amended the second degree burglary

statute since Poindexter was announced.

3

Ch. 376, sec. 1,

§ 18-4-204, 2018 Colo. Sess. Laws 2280. However, it has refrained

from defining or clarifying the term “crime against another person

or property.” This lack of action is notable, because it “is a

persuasive indication that the General Assembly approves of the

construction” of a statutory term. People v. McDonald, 2020 COA

65, ¶ 31, rev’d, 2021 CO 64; see also Rauschenberger v. Radetsky,

745 P.2d 640, 643 (Colo. 1987) (“When a statute is amended, the

judicial construction previously placed upon the statute is deemed

approved by the General Assembly to the extent that the provision

remains unchanged.”), superseded by statute as stated in White v.

Hansen, 837 P.2d 1229 (Colo. 1992); accord Tompkins v. DeLeon,

197 Colo. 569, 570-71, 595 P.2d 242, 243-44 (1979).

¶ 25 The stalking statute outlines three alternative methods by

which the prosecution can allege a person committed the offense.

§ 18-3-602(1), C.R.S. 2020. Two of the methods, which are not

3

Wright was announced after the conclusion of the most recent

legislative session.

10

applicable here, require the prosecution to prove that the defendant

made a credible threat to another person. § 18-3-602(1)(a), (b). The

third method — at issue here — does not require proof of a credible

threat. Under section 18-3-602(1)(c),

[a] person commits stalking if directly, or

indirectly through another person, the person

knowingly . . . [r]epeatedly follows, approaches,

contacts, places under surveillance, or makes

any form of communication with another

person . . . in a manner that would cause a

reasonable person to suffer serious emotional

distress and does cause that person . . . to

suffer serious emotional distress.

¶ 26 This subsection does not require proof that a person used or

threatened force or committed an offense against the body, and

there are myriad potential factual scenarios where a person could

commit stalking — serious emotional distress without using or

threatening force or acting against the body of another. Therefore,

stalking — serious emotional distress is not a “crime against

another person” as a matter of law. See Wright, ¶ 26.

¶ 27 In reaching this conclusion, we reject as overly broad the

People’s arguments that the plain language and legislative

declaration of the stalking statute necessarily means stalking —

serious emotional distress is always a “crime against another

11

person” and that the “modern” definition of “person” includes

“personality” or “self,” which describes the “entire person” including

“body, emotions, thoughts, and sensations.”

¶ 28 Under the People’s reasoning, virtually any crime that caused

emotional harm or discomfort to the victim would qualify as a

predicate offense to burglary. It’s no stretch to say that the vast

majority of crimes cause at least some emotional harm to the

victims. We decline to adopt such a broad interpretation because it

is inconsistent with the legislature’s intent to place a limit on the

type of predicate offenses which can be the object of a burglary.

See Poindexter, ¶ 26.

¶ 29 Because stalking — serious emotional distress isn’t a “crime

against another person” as a matter of law, we must examine

whether, based on the facts and circumstances as pleaded and

proved at trial, it met that definition here. See id. We conclude that

it didn’t.

¶ 30 The prosecution presented no evidence that Gonzales intended

to use or threatened to use force against J.G or that he intended to

commit a crime against her body. In fact, J.G. explicitly testified

that Gonzales never directly or indirectly threatened her and that he

12

went out of his way to say that he wasn’t threatening her.

Therefore, we cannot say that Gonzales intended to commit a “crime

against another person.”

¶ 31 This isn’t to say that stalking — serious emotional distress can

never meet that definition. Under different circumstances, it could

be a “crime against another person.” See id. at ¶ 31. But, in this

case, it wasn’t. Therefore, it could not serve as a predicate offense

for Gonzales’ burglary conviction and the evidence was insufficient

to support that conviction.

B. Prior Bad Act Evidence

¶ 32 Next, Gonzales contends that the court erroneously admitted

evidence that he’d been violent towards J.G. during their

relationship. Again, we agree.

1. Standard of Review

¶ 33 We review the trial court’s evidentiary rulings for an abuse of

discretion. People v. Moore, 2021 CO 26, ¶ 26. The trial court

abuses its discretion if its ruling is manifestly arbitrary,

unreasonable, or unfair, or where it is based on an erroneous view

of the law. People v. Manzanares, 2020 COA 140M, ¶ 28.

13

¶ 34 We review preserved nonconstitutional errors for

harmlessness. People v. Baker, 2021 CO 29, ¶ 38. We must

reverse where an error “substantially influenced the verdict or

affected the fairness of the trial proceedings.” Id. (quoting Hagos v.

People, 2012 CO 63, ¶ 12). We will disregard an error as harmless

only if the prosecution demonstrates that there is no reasonable

probability that the error adversely affected the outcome of the trial.

People v. Williams, 2020 CO 78, ¶ 24.

2. Additional Background

¶ 35 During cross-examination, defense counsel questioned J.G.

about the content of the text messages and her reaction to the

messages:

Defense counsel: At no point does he ever

threaten you directly?

J.G.: Or indirectly, no sir.

Defense counsel: And, in fact, he goes out of

his way to basically say, I’m not threatening

you?

J.G: That’s exactly what he was doing, yes.

Defense counsel: I don’t want to argue with

you?

J.G.: Uh-huh.

14

Defense counsel: I don’t want to start a fight

with you?

J.G.: Right.

Defense counsel: I just want to talk with you?

J.G.: Right.

Defense counsel: But you were done talking?

J.G.: Yes, I was.

Defense counsel: And, again, you know, for

lack of a better term this was just getting really

annoying?

J.G.: Really annoying, yes.

Defense counsel: Maybe even aggravating?

J.G.: Yeah, I guess you could say aggravating.

I mean, I wasn’t mad, but it was annoying,

very annoying.

Defense counsel: Enough is enough?

J.G.: Correct.

Defense counsel: But you weren’t scared of

him?

J.G.: Never have been.

¶ 36 At the conclusion of the cross-examination, the prosecution

argued that J.G.’s answer that she’d never been afraid of Gonzales

15

opened the door to the admission of evidence of prior violence in the

relationship. The prosecutor conceded that he had not provided

pretrial notice of his intent to introduce CRE 404(b) evidence.

¶ 37 The evidence consisted of a statement J.G. made during a

follow-up interview with a detective a few days after Gonzales’ arrest

where she described violence in the relationship. The detective’s

report, which summarized the interview, was read into the record

outside the presence of the jury before the court’s ruling.

¶ 38 Defense counsel objected. He argued that J.G.’s answer,

which was not responsive to his narrowly tailored question, could

not open the door to the evidence. Additionally, he argued that the

danger of prejudice outweighed the probative value of the evidence

and argued that, because of the lack of information regarding the

context and timing of the prior violence, its admission created the

“potential to explode [this trial] into something that . . . it isn’t

intended to be.”

¶ 39 The court overruled the objection and found that it was “a

classic inconsistent statement situation . . . that goes directly to the

credibility of the witness.” The court ruled that the prosecution

16

could impeach J.G. with her prior statement but prohibited the

prosecution from going into the facts of the specific prior incidents.

¶ 40 After the court’s ruling, the prosecutor questioned J.G. about

her prior statement at the end of re-direct:

Prosecutor: Okay. Ma’am, one last question.

You indicated on cross-examination that

you’ve never been scared of Mr. Gonzales?

J.G.: No, I have not. I’m not afraid of him, no.

Prosecutor: Okay. Didn’t you tell Detective

Barkley, though, specifically and he asked, you

told him that there had been prior incidences

of violence in your relationship?

J.G.: There had been prior incidences of the

escalating violence yes, but, I was still not

afraid of him. He never left a mark on me, he’s

never hurt me, physically. Tried but never

physically hurt me.

3. Discussion

¶ 41 Gonzales contends that the evidence was inadmissible under

CRE 404(b) and that the court misapplied the law regarding

inconsistent statements and misconstrued the “opening the door”

doctrine by admitting it.

¶ 42 The People argue that the evidence was admissible under

multiple theories: as an inconsistent statement under CRE 613 and

17

section 16-10-201, C.R.S. 2020; as a specific act of prior conduct

related to J.G.’s character for truthfulness under CRE 608(b); and

as prior bad act evidence under CRE 404(b). Additionally, they

argue that even if the evidence was otherwise inadmissible, the

defense opened the door to its admission.

¶ 43 We begin by evaluating whether the evidence was admissible.

We conclude that it wasn’t. Then, we evaluate whether the

cross-examination of J.G. opened the door to its admission. We

conclude that it didn’t.

a. CRE 613 and Section 16-10-201

¶ 44 The evidence was not admissible as an inconsistent statement

under CRE 613 or section 16-10-201 for two reasons. First, J.G.’s

statements about Gonzales’ violent conduct — which made no

mention of fear — were not actually inconsistent with her trial

testimony. See, e.g., City of Gunnison v. McCabe Hereford Ranch,

Inc., 702 P.2d 768, 770 (Colo. App. 1985) (trial court didn’t abuse

its discretion in precluding impeachment with evidence that wasn’t

inherently inconsistent with and was made in a different context

than the witness’ trial testimony); 22 Stephen A. Hess & Sheila K.

Hyatt, Colorado Practice Series: Handbook on Evidence ER 613 cmt.

18

3(c) (2020-2021 ed.) (“In order to satisfy the foundational

requirements of [CRE 613], it is necessary that the prior statement

actually be inconsistent with the witness’ testimony.”).

¶ 45 Second, even assuming J.G.’s prior statement was actually

inconsistent, it was precluded by other evidentiary rules. A witness’

prior inconsistent statements about other act evidence are still

subject to the strictures of CRE 404(b) (governing substantive

evidence) and CRE 608 (governing impeachment evidence). People

v. Fortson, 2018 COA 46M, ¶ 39. The framework governing

inconsistent statements “simply sets forth the procedure for proper

impeachment of a witness with that witness’ prior inconsistent

statements; it does not permit, much less address, the permissible

uses of other act evidence.” Id. at ¶ 38.

b. CRE 608(b)

¶ 46 “[E]vidence of specific acts used solely for impeachment is

governed by [CRE] 608(b).” People v. Segovia, 196 P.3d 1126, 1130

(Colo. 2008). CRE 608(b) allows a party to ask a witness about

specific acts of the witness’ conduct that are probative of the

witness’ character for truthfulness or untruthfulness. Id.

19

¶ 47 The People contend that J.G.’s prior statement to the detective

was admissible as impeachment evidence because it was probative

of her character for untruthfulness. We disagree.

¶ 48 It’s clear that the evidence wasn’t introduced solely for

impeachment purposes. Instead — as the prosecutor conceded

when he cited CRE 404(b) in his offer of proof — it was introduced

as substantive evidence.

¶ 49 The prosecutor’s question, which assumed that J.G.’s

allegations of prior domestic violence against Gonzales were true,

was not merely tailored to impeach J.G.’s credibility. See Fortson,

¶ 32. Instead, it highlighted specific instances of Gonzales’ prior

misconduct and created the inference that J.G. was afraid of

Gonzales because of his prior bad acts. See id. at ¶ 40.

c. CRE 404(b)

¶ 50 The People, while acknowledging that the trial court didn’t

make specific findings or explicitly conduct the analysis outlined in

People v. Spoto, 795 P.2d 1314 (Colo. 1990), contend that the other

bad act evidence was nonetheless admissible under CRE 404(b).

The People argue that the court implicitly found good cause to

20

excuse the lack of pretrial notice and implicitly found that the

evidence was admissible under CRE 404(b).

¶ 51 We conclude that the evidence was inadmissible under the

fourth Spoto factor because its probative value was substantially

outweighed by the danger of unfair prejudice. CRE 403; Spoto, 795

P.2d at 1318. In reaching this conclusion, we don’t opine on

whether the court erred by not making specific findings and we do

not make specific findings on whether the evidence satisfied the

first three prongs of Spoto.

¶ 52 When examining the fourth Spoto prong, we consider the

extent to which the proffered other act evidence adds logical force,

independent of the proscribed inference of bad character, to the

existing body of evidence proving the same material fact. Williams,

¶ 14. We don’t consider the probative value of the evidence in

isolation but instead consider the marginal or incremental probative

value of the evidence relative to the probative force of other evidence

available in the case. Id. Then we weigh that marginal probative

value against the inherently prejudicial impact of allowing the jury

to hear that the defendant has committed prior bad acts and is

therefore known to be a person of negative character. Id.

21

¶ 53 Here, any marginal probative value of the evidence was low.

The evidence did not contradict J.G.’s testimony that she wasn’t

afraid of Gonzales, and it was not relevant to any of the elements

the prosecution had to prove at trial. Additionally, the prosecution

had already introduced J.G.’s prior statements to the police

indicating that she was in fact afraid of Gonzales. The prior bad act

evidence did not add logical force to the existing body of evidence.

See id.

¶ 54 On the other hand, the evidence had a greater danger of unfair

prejudice. Evidence of prior crimes or bad acts “has a distinct and

unmistakable potential for unfair prejudice.” People v. Rath, 44

P.3d 1033, 1043 (Colo. 2002). The prior bad act evidence was

arguably more serious than the charges Gonzales faced, and the

prior bad act evidence was dissimilar to the charged conduct. See

Perez v. People, 2015 CO 45, ¶ 27; People v. Brown, 2014 COA

130M, ¶¶ 11-12.

¶ 55 Overall, the evidence of “prior incidences of . . . escalating

violence” created a danger that the jury would convict Gonzales as

punishment for his past deeds, overvalue the evidence when

assessing Gonzales’ guilt on the charged offenses, or require him to

22

disprove or explain his prior acts. See Kaufman v. People, 202 P.3d

542, 552 (Colo. 2009)

d. Opening the Door

¶ 56 Having concluded that the evidence was inadmissible, we turn

to the question of whether the defense nonetheless opened the door

to its admission.

¶ 57 Evidence that is otherwise inadmissible can become

admissible if the defendant “opens the door” to it. People v. Cohen,

2019 COA 38, ¶ 21; see Golob v. People, 180 P.3d 1006, 1012 (Colo.

2008) (“When a party opens the door to otherwise inadmissible

evidence, his opponent may then inquire into the previously barred

matter.”). The concept prevents one party from gaining and

maintaining an unfair advantage by selectively presenting facts

that, without elaboration or context, create an incorrect or

misleading impression for the jury. Golob, 180 P.3d at 1012.

¶ 58 We agree with Gonzales that the court misapplied the opening

the door doctrine for two reasons. First, an unpredictable witness’

answer that is nonresponsive to a question, or that is responsive

but broader than the question calls for, does not open the door to

otherwise inadmissible evidence. 21 Kenneth W. Graham, Jr.,

23

Federal Practice and Procedure Evidence § 5039.1, Westlaw (2d ed.

database updated Apr. 2021) (“[A] nonresponsive answer to a

question by a party does not open the door either for the

questioning party or an opponent.”); 1 Christopher B. Mueller &

Liard C. Kirkpatrick, Federal Evidence § 1.12, Westlaw (4th ed.

database updated May 2021) (“Unresponsive answers, or those that

are responsive but broader than the question, are not the

responsibility of the questioner.”).

¶ 59 Second, assuming a witness’ nonresponsive answer can open

the door, J.G.’s answer did not do so. The concept of “opening the

door” isn’t unlimited, and inadmissible rebuttal evidence is allowed

only to the extent necessary to remove any unfair prejudice which

might otherwise have ensued from the original evidence. Cohen,

¶ 23. Put another way, the doctrine does not “give an opponent

unbridled license to introduce otherwise inadmissible evidence into

the trial, nor does it justify receipt of rebuttal evidence merely

because it is in the same category of excludable evidence as the

evidence previously offered.” Id. (quoting United States v. Martinez,

988 F.2d 685, 702 (7th Cir. 1993)).

24

¶ 60 Here, the potential prejudice to the prosecution was that J.G.’s

answer could mislead the jury to believe that she’d never been

afraid of Gonzales, even though she’d made prior statements to the

contrary. Therefore, to remove any unfair prejudice, the

prosecution could introduce evidence of her prior fear, but only to

the extent necessary to rebut any adverse inferences or to correct

any incorrect or misleading statements. See id. at ¶ 26.

¶ 61 The evidence of prior violence exceeded those limits. Because

the evidence did not contradict J.G.’s answer, its admission went

“beyond the necessity of removing prejudice in the interest of

fairness.” Id. at ¶ 23 (quoting Martinez, 988 F.2d at 702). Instead

of preventing prejudice, the evidence injected prejudice into the

case. Id. Additionally, J.G. had already testified on direct

examination that she had submitted a victim impact statement

where she wrote that she “fear[ed] for [her] safety.” Therefore, the

court erred by allowing the evidence under the “opening the door”

doctrine.

e. The Error Was Harmless

¶ 62 Finally, a reviewing court can disregard an error as harmless if

it can say with fair assurance, in light of the entire record, that the

25

error didn’t substantially influence the verdict or impair the fairness

of the trial. Hagos, ¶ 12. Thus, reversal is required only if there’s a

reasonable probability the error contributed to the conviction. See

Pernell v. People, 2018 CO 13, ¶ 22. The single most important

factor in making this determination is whether the case was close.

People v. Casias, 2012 COA 117, ¶ 69. We conclude that the error

here was harmless to the remaining trespass charge.

¶ 63 The offending testimony in this case was fleeting. It was a

single statement in the course of a day-long trial with several

witnesses. J.G. didn’t specifically describe any violent incident or

add any inflammatory details. See Callis v. People, 692 P.2d 1045,

1053 (Colo. 1984) (evidentiary error harmless where the evidence of

prior criminality was not an express reference to a crime and did

not delineate the nature of the past criminal conduct). Not only

that, but she tempered the statement with testimony that she

wasn’t afraid of Gonzales and he had never physically hurt her —

testimony that was unhelpful to the prosecution’s case. Finally, the

prosecution never referred to the violence testimony again. See,

e.g., People v. Kern, 2020 COA 96, ¶ 16 (concluding “relatively brief

and vague” references to a restraining order were harmless); People

26

v. Herdman, 2012 COA 89, ¶¶ 46-47 (references to the defendant’s

past cocaine use didn’t warrant reversal where the references “were

few, fleeting, and not detailed”).

¶ 64 We cannot say that this was a close case on the trespass

charge. To establish trespass, the prosecution had to prove that

Gonzales knowingly and unlawfully entered or remained in J.G.’s

dwelling. See § 18-4-502, C.R.S. 2020. J.G. testified that Gonzales

wasn’t on the lease, he didn’t have a key, and that she told him not

to come to the house the day of the trespass. She also identified

one of Gonzales’s text messages in which he acknowledged that J.G.

didn’t “want [him] there.” J.G. also testified she left town to avoid

Gonzales and told her roommate not to answer the door if Gonzales

came over.

¶ 65 The roommate testified that she was home alone when

Gonzales showed up. She stated that she opened the door thinking

he was someone else and Gonzales then elbowed his way into the

home. She repeatedly asked him to leave and, after the third

request, he left.

¶ 66 Finally, one of the responding officers testified that he spoke

with J.G. as part of his investigation. She confirmed that Gonzales

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didn’t live at the home and he “did not have permission to be at that

address.” Thus, in our view, the case was not close and the

properly admitted evidence “overwhelmingly demonstrates”

Gonzales trespassed, rendering any error from the prior violence

testimony harmless. See, e.g., People v. Summitt, 132 P.3d 320, 327

(Colo. 2006) (a trial court’s evidentiary error is harmless if properly

admitted evidence overwhelmingly shows guilt).

¶ 67 To be sure, J.G. testified that at other times and occasions

Gonzales had permission to enter the home. But previous

permission to enter the home doesn’t confer a perpetual, unlimited

right to entry. See People v. Hanna, 981 P.2d 627, 629 (Colo. App.

1998) (rejecting the defendant’s argument that insufficient evidence

supported her trespass conviction, in part because “she had been

allowed access to the house in the past”). So even if Gonzales

enjoyed permission to enter the home on other occasions, he

undisputedly had no permission to enter the home the day he

trespassed.

¶ 68 Perhaps recognizing the strength of this evidence, Gonzales

doesn’t argue the evidentiary error impacted the trespass

conviction. He instead argues that the evidence “unfairly bolstered

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the prosecution’s claim that [Gonzales] meant to stalk” the victim

and that “the evidence on that element was keenly disputed at

trial.” Maybe so, but such harm goes to the burglary conviction

(and more particularly the predicate stalking offense). Gonzales

doesn’t say — and we don’t see — how the prior violence testimony

impacts the unchallenged testimony that Gonzales entered the

home without permission and didn’t leave when first asked.

¶ 69 For these reasons, we don’t believe that the “prior violence”

testimony substantially influenced the trespass conviction or

impaired the fairness of the trial.

III. Remaining Contentions

¶ 70 Gonzales’s remaining contentions are that the trial court

erroneously admitted an audio recording that was cumulative and

unduly prejudicial, that the prosecutor committed misconduct in

his opening statement and closing argument, and that the burglary

and trespass convictions should have merged at sentencing. We

need not reach most of these issues. Our ruling vacating the

burglary conviction renders the merger issue and any issues with

the prosecutor’s closing statement moot. Gonzales does not argue

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that the audio recording had any impact outside the burglary,

similarly rendering that issue moot.

¶ 71 In his remaining issue Gonzales contends that the prosecutor

committed misconduct in his opening statement when he said that

he was “legally required” to call J.G. as a witness. There was no

contemporaneous objection to this statement. We review

unpreserved allegations of prosecutorial misconduct for plain error.

Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010). Plain error

occurs only if the statement “so undermines the fundamental

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

of the jury’s verdict.” Dominguez-Gomez v. People, 125 P.3d 1043,

1053 (Colo. 2005). Reversal is required only for “prosecutorial

misconduct which is ‘flagrantly, glaringly, or tremendously’

improper.” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo.

App. 1997)).

¶ 72 We cannot conclude on this record that the prosecutor’s single

comment in his opening statement rises to this level. In context,

the prosecutor’s statement explains why J.G. was a reluctant

witness and why he compelled her attendance. These assertions

were later introduced through J.G.’s own testimony. Even if we

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assume the prosecutor’s statement was error, we would not find

that this single statement was so “flagrantly, glaringly, or

tremendously improper” as to cast serious doubt on the reliability of

the jury’s verdict here. See People v. Denhartog, 2019 COA 23, ¶ 66

(“The prosecutor’s single misstatement does not cause us to

question the reliability of the judgment of conviction and we

therefore discern no plain error.”).

IV. Conclusion

¶ 73 We affirm Gonzales’ judgment of conviction for trespass. We

vacate the judgment of conviction for second degree burglary and

remand to the trial court for correction of the mittimus and

resentencing.

JUDGE DAILEY and JUDGE DUNN concur.