Peo v. Faudoa

19CA0504 Peo v Faudoa 12-16-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0504

Weld County District Court No. 18CR958

Honorable Timothy G. Kerns, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gabriel Faudoa,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE GOMEZ

Richman and Harris, JJ., concur

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

Announced December 16, 2021

Philip J. Weiser, Attorney General, Rebecca A. Adams, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Elyse M. Maranjian, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Gabriel Faudoa, appeals the judgment of

conviction entered after a jury found him guilty of assault. We

affirm.

I. Background

¶ 2

Faudoa and his sister (the victim) lived in separate camper

trailers in their mother’s backyard.

¶ 3

One night, the two siblings got into an argument inside the

victim’s trailer and continued arguing outside the trailer with their

mother present. At some point, the victim told Faudoa he was

“nothing but a low life piece of shit.” That angered Faudoa, as their

mother reported based on the reaction in his face and voice.

Suddenly, the siblings were hitting each other.1 Faudoa put his

hands on the victim’s throat as the victim screamed.2 Eventually,

the mother intervened, and Faudoa left and went into his trailer.

¶ 4

The victim went into her mother’s home, called 911, and told

the dispatcher that her “brother just choked [her] out and scratched

1 At trial, the siblings’ mother said she couldn’t tell which of them

had started the hitting. However, other evidence at trial indicated

she had previously said that Faudoa started it.

2 The siblings’ mother’s statements were also inconsistent as to how

long Faudoa held the victim’s throat. She told investigating officers

it was one to two minutes but testified at trial it was only seconds.

2

[her].” The call disconnected, and the victim immediately called

back and provided further details.

¶ 5

Responding officers testified that the victim was clearly upset:

“her emotions were elevated” and she appeared to have been crying,

as “[h]er face was red [and] her eyes were watery, bloodshot, [and]

puffy.” The officers noted her difficulty speaking. For instance,

they said “her voice was hoarse,” “almost like she had laryngitis,

where her voice was going in and out”; “her voice became very

scratch[y] and high-pitched” and eventually “[s]he was whispering”

and could hardly be heard at all; and she was “coughing [and]

wheezing.” They also testified to seeing red marks on her throat

and on the side of her face.

¶ 6

The victim’s sister-in-law, whom the victim called shortly after

calling the police, similarly reported that “[s]he was crying

hysterically,” “[s]he was really upset,” and “[h]er voice was hoarse,

kind of like she had a cold, and like hard for her to talk . . . hard to

push out the words, and the volume was like raspy.”

¶ 7

Photos of the victim revealed red marks on her neck and an

abrasion on her cheek.

3

¶ 8

Faudoa was arrested and charged with second degree assault.

He was also later charged with witness tampering for statements he

made to his mother while he was in jail.

¶ 9

The victim didn’t testify at trial. The jury heard the evidence

recounted above, as well as testimony from an expert on

strangulation. At the end of trial, the jury found Faudoa guilty of

the assault charge but not guilty of the witness tampering charge.

Faudoa now appeals.

II. Analysis

¶ 10

Faudoa raises two contentions on appeal: (1) that the trial

court improperly admitted portions of the victim’s 911 calls; and

(2) that the prosecutor committed misconduct during the trial. We

address each contention in turn.

A. 911 Calls

¶ 11

Faudoa contends that the trial court erred in admitting

portions of the victim’s 911 calls because they (1) violated his right

to confront the witnesses against him; (2) contained inadmissible

hearsay; and (3) were inadmissible under CRE 403. We disagree.

4

1. Additional Facts

¶ 12

Before the trial, the prosecution filed a motion indicating that

the victim was unavailable to testify at trial, as she may have moved

out of state and couldn’t be served with a subpoena, and asking the

court to admit her statements from the two 911 calls. Defense

counsel objected, arguing the statements were inadmissible under

the Confrontation Clause, as hearsay, and under CRE 403.

¶ 13

The trial court addressed the issue at a pretrial hearing. The

court ordered that the first call — which was about twenty seconds

long and included only two statements by the victim, that “my

brother just choked me out and scratched me” and her address —

was admissible in its entirety because “the entirety of that 911 call

was made for purposes of obtaining a police response.”

¶ 14

The court then analyzed each separate statement by the victim

in the second call — which immediately followed the first and was

over five minutes long (unredacted). The court determined that

some of the victim’s statements were admissible to describe the

scene and her need for a police response, but others were not. In

the end, the court admitted the following statements:

5

 “My brother just choked me out until I couldn’t breathe and

smacked me across the face.”

 Faudoa was at that time in his trailer.

 She didn’t need medical attention but needed the police there

“as soon as possible.”

 She was at that time in the house with her mother.

 “Look at my neck” (apparently said to her mother, not to the

dispatcher).3

¶ 15

The court excluded several other statements by the victim,

including, among others, statements that Faudoa was drunk, that

she hadn’t done anything to provoke him, and that he had hit her

across the face and choked her until she couldn’t breathe.

¶ 16

The calls, redacted to exclude the portions of the second call

that were held inadmissible, were played to the jury at trial.

3 The court also allowed the admission of statements indicating that

no weapons were present and that officers had just arrived, but the

redacted recording admitted at trial didn’t include those statements.

6

2. Confrontation Clause

¶ 17

Faudoa argues that the admission of the victim’s statements

from the 911 calls violated his rights under the Confrontation

Clause. We disagree.

¶ 18

Defendants have a right under the Confrontation Clause in

both the United States and the Colorado Constitutions to confront

the witnesses against them. U.S. Const. amend. VI; Colo. Const.

art. II, § 16; People v. Hernandez, 2021 CO 45, ¶ 19. These

constitutional provisions preclude the introduction of testimonial

hearsay unless the declarant is unavailable to testify and the

defendant had a prior opportunity to cross-examine the declarant.

People v. Garcia, 2021 CO 7, ¶ 8; see also id. at ¶ 7 n.2 (the

protections are equivalent and the analysis is the same under the

federal and the state constitutions). But nontestimonial hearsay

isn’t similarly excluded and is only subject to the rules of evidence.

People v. Draper, 2021 COA 120, ¶ 77.

¶ 19

A statement is testimonial if, viewed objectively and in light of

all the circumstances, its primary purpose at the time it was made

was to be a substitute for trial testimony. Garcia, ¶ 9; Draper, ¶ 78.

Thus, for instance, when the circumstances of an interrogation

7

objectively indicate that its primary purpose is “to elicit statements

that establish or prove past events, or to elicit statements that are

potentially relevant to a later criminal prosecution, the statements

elicited are testimonial.” Raile v. People, 148 P.3d 126, 130 (Colo.

2006). By contrast, “statements made during an ongoing

emergency to assist police officers in their efforts to assess the

present situation are nontestimonial.” Id.

¶ 20

Likewise, “[a] 911 call, . . . and at least the initial interrogation

conducted in connection with a 911 call, is ordinarily not designed

primarily to ‘establis[h] or prov[e]’ some past fact, but to describe

current circumstances requiring police assistance” and thus is

ordinarily nontestimonial. Davis v. Washington, 547 U.S. 813, 827

(2006) (alteration in original) (citation omitted). Ultimately, whether

statements during a 911 call are testimonial depends on whether

they were made for the purpose of getting help or to provide

information for investigative purposes. Id. at 827-28 (a statement

during a 911 call identifying the defendant as the caller’s assailant

was not testimonial because the caller was speaking about events

as they were happening rather than describing past events, the

caller was facing an ongoing emergency, the statements were

8

necessary to resolve the present emergency rather than just to learn

what had happened in the past, and the interview was informal,

with the caller’s answers “frantic” and “in an environment that was

not tranquil”); People v. Cevallos-Acosta, 140 P.3d 116, 128-29

(Colo. App. 2005) (a statement during a 911 call identifying the

defendant as the perpetrator of a crime was nontestimonial because

“the caller was seeking immediate help for the victim; the

circumstances were exigent; and the statement . . . was neither

elicited by nor made to anybody with authority”).

¶ 21

We review de novo whether the admission of evidence violated

a defendant’s confrontation right. Garcia, ¶ 6. Similarly, we review

de novo the legal question whether a statement is testimonial.

People v. Trevizo, 181 P.3d 375, 378 (Colo. App. 2007).

¶ 22

Faudoa argues that the admitted statements were testimonial,

and thus were improperly admitted, because they “describe[] the

events as having taken place in the past,” using the past tense,

rather than what was currently happening; there was “no ongoing

emergency or immediate danger”; and the victim “insiste[d] that she

did not need medical attention but wanted the police to respond,”

suggesting the focus was on later criminal prosecution.

9

¶ 23

We are not persuaded. Instead, we agree with the trial court’s

assessment that the statements were not testimonial. Viewing the

statements objectively, their primary purpose was to elicit a police

response to what the victim perceived as an ongoing emergency.

Despite Faudoa’s description of the emergency as having passed by

then, the victim may have felt Faudoa was an ongoing threat since,

according to her statements, the assault had “just” occurred and he

was still in his trailer on the property. And although the victim

didn’t believe she needed medical care, her demeanor on the calls

was “frantic,” much like the caller in Davis, 547 U.S. at 827.

¶ 24

We conclude, then, that each of the admitted statements was

nontestimonial. The victim’s statements at the beginning of both

calls saying her brother had “choked [her] out” and “scratched” or

“smacked” her were, like most initial statements in a 911 call, made

not to establish past facts but “to describe current circumstances

requiring police assistance.” Id. The victim may have used the past

tense, as she was speaking right after rather than during the

choking, but that doesn’t negate the fact that she was explaining to

the dispatcher why she needed police assistance. The statements

about where Faudoa was, where the victim was, who she was with,

10

and her need for police but not medical assistance described what

was then occurring and could enable authorities to adequately

respond to the situation. And the comment to “[l]ook at my neck”

was apparently made to the victim’s mother, not to the dispatcher

or for the purpose of establishing a fact at trial. See Ohio v. Clark,

576 U.S. 237, 249 (2015) (“Statements made to someone who is not

principally charged with uncovering and prosecuting criminal

behavior are significantly less likely to be testimonial than

statements given to law enforcement officers.”).

3. Hearsay

¶ 25

Faudoa next argues that the victim’s statements in the 911

calls were hearsay statements that don’t fall under the excited

utterance exception. Again, we disagree.

¶ 26

Hearsay statements, which are statements made by someone

other than the declarant while testifying at trial that are offered to

prove the truth of the matter asserted, are generally inadmissible

unless they fall within an exception. CRE 801(c), CRE 802.

¶ 27

One such exception applies to an excited utterance, which is a

“statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or

11

condition.” CRE 803(2). To fall within this exception, a statement

must (1) relate to an event that is sufficiently startling to render

inoperative normal reflective thought processes of the observer;

(2) be a spontaneous reaction to the occurrence; and (3) be

supported by evidence that the declarant observed the event.

People v. Vanderpauye, 2021 COA 121, ¶ 31.

¶ 28

In determining whether a statement was spontaneous, courts

may consider such factors as the lapse of time after the startling

event, whether the statement was made in response to an inquiry,

whether it was accompanied by outward signs of excitement or

emotional distress, and the choice of words used. People v. Abdulla,

2020 COA 109M, ¶ 65. Statements made in response to

questioning can be excited utterances. Id. at ¶ 72.

¶ 29

A trial court is best positioned to determine whether a

statement was an excited utterance. Id. at ¶ 65. Thus, we review

its decision for an abuse of discretion. Vanderpauye, ¶ 16. A court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law. Id.

¶ 30

While defense counsel raised this objection in her pretrial

filing, the court didn’t rule on it at the hearing. And when counsel

12

objected to admission of the 911 calls at trial, she raised only other

issues but not hearsay. Nonetheless, we will treat this objection as

preserved and assume the trial court implicitly overruled the

objection. See People v. Butler, 2017 COA 117, ¶ 47.

¶ 31

We perceive no abuse of discretion in allowing the statements

into evidence as excited utterances. It’s clear from both calls that

the victim was reacting to a startling event she had experienced;

that she was crying, breathing heavily, and still under the stress of

that event; and that her words were more of a spontaneous reaction

to the event than the operation of a normal reflective thought

process. See Vanderpauye, ¶ 31; Abdulla, ¶ 65.

¶ 32

We reject Faudoa’s arguments to the contrary. Although the

prosecution didn’t establish exactly how much time passed between

the assault and the victim’s 911 calls, other evidence supported

that the calls were made very soon after the assault and while the

victim was still acting under the stress of the assault. For instance,

the victim said her brother had “just” choked her, and she was

crying, breathing heavily, and speaking frantically during the calls.

See Compan v. People, 121 P.3d 876, 883 (Colo. 2005) (evidence

that the victim was upset, crying, and talking excitedly during two

13

calls to a friend following an assault indicated that the calls were

made “in near temporal proximity to the startling event”), overruled

on other grounds by Nicholls v. People, 2017 CO 71. And the

responding officers and sister-in-law who spoke to the victim

shortly after the calls reported that “her emotions were elevated,”

“[s]he was really upset,” and “[s]he was crying hysterically.” See

People v. Martinez, 18 P.3d 831, 835 (Colo. App. 2000) (descriptions

of the victim as being distressed, emotional, and upset supported

findings that her assault was startling and that her statements were

made under the stress caused by the assault).

¶ 33

Nor is application of the exception undermined by the fact that

the victim had moved a short distance away from the location of the

assault before calling 911. It is enough that the evidence from the

calls and from other witnesses suggests she was still under the

stress of the assault. See Compan, 121 P.3d at 883 (evidence of the

victim’s emotional distress supported application of the exception to

statements she made to a friend after she had removed herself from

the immediate vicinity of an assault); People v. King, 121 P.3d 234,

238 (Colo. App. 2005) (evidence of the victim’s emotional distress

supported application of the exception to statements she made an

14

unknown period of time after she was assaulted and stabbed and

after she had reached a place of safety).

4. CRE 403

¶ 34

Faudoa also argues that the victim’s statements in the 911

calls should’ve been excluded under CRE 403 because they were

“emotionally charged” yet had minimal probative value because they

didn’t provide context for the incident. We disagree.

¶ 35

Relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice.” CRE

403. “Evidence is unfairly prejudicial if it has an ‘undue tendency

to suggest a decision on an improper basis . . . such as sympathy,

hatred, contempt, retribution, or horror.’” People v. Clark, 2015

COA 44, ¶ 18 (alteration in original) (quoting People v. James, 117

P.3d 91, 93-94 (Colo. App. 2004)). In reviewing the court’s ruling,

we assume the maximum probative value a reasonable fact finder

might give the evidence and the minimum unfair prejudice to be

reasonably expected. Id.

¶ 36

The trial court rejected defense counsel’s CRE 403 objection at

trial, finding that the “probative value [of the evidence] is not

substantially outweighed by any asserted prejudice.” We review

15

this ruling for an abuse of discretion. See Vanderpauye, ¶ 16. A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law. Id.

¶ 37

We discern no abuse of discretion in admitting the statements.

The statements were probative in setting the scene of the crime and

establishing what had happened. In particular, the victim’s

statement that her brother had “choked [her] out until [she]

couldn’t breathe” made it more likely than not that Faudoa had

applied sufficient pressure to impede or restrict the victim’s

breathing — a fact that was hotly contested at trial and was

relevant to establishing one of the elements of second degree

assault. See § 18-3-203(1)(i), C.R.S. 2021.

¶ 38

The statements also were not overly emotional or otherwise

unfairly prejudicial. And to the extent that the statements that

were admitted didn’t provide further context, it was because Faudoa

had successfully prevented the admission of other statements

during the call about what may have led to the incident.

B. Prosecutorial Misconduct

¶ 39

Faudoa argues that the prosecutor committed misconduct by

(1) making statements regarding the victim’s absence at trial that

16

suggested the case had been prescreened, presented the

prosecutor’s personal opinion of Faudoa’s guilt, and implied

personal knowledge of evidence not presented to the jury; and

(2) inflaming the jury’s passion. We disagree.

¶ 40

We apply a two-step analysis in evaluating claims of

prosecutorial misconduct. People v. Curtis, 2021 COA 103, ¶ 49.

First, we determine whether the prosecutor’s statements were

improper based on the totality of the circumstances. Id. Then, if

the statements were improper, we determine whether the conduct

warrants reversal under the applicable standard — harmless error

if the defendant objected in the trial court (and the error is not of a

constitutional dimension) and plain error if the defendant did not.

Id. at ¶¶ 49-50; People v. Sauser, 2020 COA 174, ¶ 80.

¶ 41

Faudoa preserved some of his objections but failed to preserve

others. For those that are preserved, reversal is required under the

harmless error standard only if an error substantially influenced

the verdict or affected the fairness of the trial. Sauser, ¶ 80. For

those that are not preserved, reversal is required under the plain

error standard only if an error was obvious and was substantial,

meaning that it so undermined the fundamental fairness of the trial

17

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

conviction. People v. Maloy, 2020 COA 71, ¶ 11.

¶ 42

The trial court has discretion to determine whether a

prosecutor has committed misconduct. People v. Snider, 2021 COA

19, ¶ 31. Accordingly, we won’t disturb the court’s rulings on

claims of misconduct absent a gross abuse of discretion resulting in

prejudice and a denial of justice. Sauser, ¶ 78.

1. Statements Related to the Victim’s Absence

¶ 43

Faudoa argues that in an effort to explain why the victim

wasn’t appearing at trial and why the prosecution was proceeding

in her absence, the prosecutor made various statements improperly

suggesting that the case had been prescreened, that she personally

believed Faudoa was guilty, and that she was aware of evidence not

presented to the jury. We are not persuaded.

¶ 44

Faudoa challenges statements made at three separate times at

trial. First, he points to the prosecutor’s statements during voir

dire. At one point, the prosecutor said,

[Y]ou will not hear from the victim in this case.

She will not come in, testify against her

brother. I wanted to talk about whether or not

the District Attorney’s office and law

enforcement should continue in cases --

18

¶ 45

Defense counsel objected that this was a “stake-out” question,

and the court overruled the objection. The prosecutor went on to

ask the prospective jurors to consider why someone might not want

to testify against a family member and whether they would be

concerned about the victim’s absence at trial. She then stated,

In a scenario where a person feels

uncomfortable, feels pressure from her family,

feels like maybe it would be worse if she came

to court, is that something you can imagine as

a reason why someone would not want to come

to court and testify?

¶ 46

Defense counsel objected. The court sustained the objection;

struck that statement; and instructed the jury that it wasn’t to

speculate as to why the prosecution “may or may not present

certain evidence” but was to “weigh the evidence that is in the

record” and, as appropriate, “consider the lack of evidence.”

¶ 47

Faudoa next points to the following remarks by the prosecutor

during opening statement:

The first thing you’re going to hear about is the

fact that [the victim] will not be testifying. You

already heard about that. How am I going to

prove this case without [the victim]? You are

not going to hear from her on the stand, but

you are going to hear from her within the rules

of evidence. I am going to provide you with

everything I can, all the statements that I can.

19

¶ 48

Defense counsel objected on the basis that the prosecutor was

testifying. The court overruled the objection.

¶ 49

Finally, Faudoa points to these statements in the prosecutor’s

closing argument:

PROSECUTOR: [T]his is a difficult case. It’s

challenging. I made no surprise, no mystery

about it when I talked to you during jury

selection. But every single one of you told me

that if the evidence was there, law enforcement

should investigate, the District Attorney

should pursue.

DEFENSE COUNSEL: Objection. Using office

status to convey credibility based on charges.

THE COURT: I’m going to sustain. This is as

to evidence, not charging decision.

PROSECUTOR: All of you said if the evidence

was there, you thought it was okay, and, in

fact, you thought it was right for charges to be

brought --

DEFENSE COUNSEL: Objection.

PROSECUTION: -- if that was appropriate.

THE COURT: Overruled.

¶ 50

Prosecutors have wide latitude to make arguments based on

the facts in evidence and reasonable inferences that may be drawn

from those facts. People v. Strock, 252 P.3d 1148, 1153 (Colo. App.

2010). Nonetheless, prosecutors must not use improper methods

20

calculated to produce a wrongful conviction. People v. Fortson,

2018 COA 46M, ¶ 13. Thus, for instance, they may not refer to a

screening process that a case was sufficient to pass through,

Domingo-Gomez v. People, 125 P.3d1043, 1052 (Colo. 2005);

express a personal opinion as to the defendant’s guilt, People v.

Rhea, 2014 COA 60, ¶ 75; or suggest they have personal knowledge

of evidence unknown to the jury, Fortson, ¶ 48.

¶ 51

The statements challenged in this case did not run afoul of

these rules. First, the prosecutor didn’t suggest the case had been

screened or even allude to a screening process. Cf. Domingo-Gomez,

125 P.3d at 1052 (prosecutor expressly referenced “a screening

process for charging cases,” which the prosecutor said “takes the

type of evidence that we have here”). What she referred to instead

was a choice to continue prosecuting the case without assistance

from the victim. That reference, unlike a statement about

screening, doesn’t “convey that the prosecution had additional

inculpatory evidence unknown to the jury.” Id. And the apparent

point of the prosecutor’s statements was not to improperly bolster

the decision to prosecute the case but, instead, to elicit jurors’

reactions to a criminal case proceeding without a testifying victim

21

and to argue that the evidence could support a conviction even

without the victim’s testimony.

¶ 52

Second, the prosecutor didn’t express a personal belief in

Faudoa’s guilt. None of her challenged statements referred to her

own beliefs about Faudoa’s guilt. Instead, they focused on the

absence of the victim and the evidence supporting a finding of guilt.

Cf. People v. Vialpando, 2020 COA 42, ¶ 57 (prosecutor told the

jury, among other things, “I think you’ll agree with me at the end of

testimony, that the defendant is guilty of the charges”) (cert. granted

Oct. 12, 2020).

¶ 53

And third, the prosecutor didn’t suggest that she was aware of

evidence unknown to the jury that would support a guilty verdict.

Her statement that she was going to offer all the evidence she could

under the rules of evidence was vague and didn’t necessarily imply

that she was aware of additional evidence she couldn’t present to

the jury — particularly given that she made this statement in the

context of proceeding in the absence of testimony from the victim.

Nor did her statement give any indication, if there was any other

evidence, what that evidence might be. Cf. Fortson, ¶¶ 47-48

22

(prosecutor said the defendant had committed instances of sexual

assault in addition to those charged).

¶ 54

At most, some of the prosecutor’s statements may have been

inartful. See People v. Samson, 2012 COA 167, ¶ 30 (“[B]ecause

arguments delivered in the heat of trial are not always perfectly

scripted, reviewing courts accord prosecutors the benefit of the

doubt when their remarks are ambiguous or simply inartful.”). But

they did not cross the line into prosecutorial misconduct.

¶ 55

And, to the extent that any of the prosecutor’s statements

were objectionable, they were brief and isolated, were cured by the

trial court’s rulings sustaining some of the objections and striking

one of the statements, and didn’t substantially influence the

verdict, affect the fairness of the trial, or so undermine the

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

reliability of the judgment of conviction. See Sauser, ¶ 80; Maloy,

¶ 11.

2. Inflaming the Jury’s Passion

¶ 56

Lastly, Faudoa argues that the prosecutor improperly used

arguments calculated to inflame the jury’s passion by saying the

23

victim was traumatized and felt like she was going to die. Again, we

are not persuaded.

¶ 57

Faudoa again challenges statements made at different times

during the trial. Those statements include:

 In opening statements: “[Y]ou’re . . . going to hear about

how [the victim] sounded when she was saying those

things [on the 911 calls] . . . . Crying and hysterical,

screaming and traumatized.” (The court overruled

defense counsel’s objection to the word “traumatized.”)

 In opening statements: “You’re going to hear what it feels

like to have had someone’s hand around your neck, to

feel like you couldn’t breathe, to feel like you might die.

You’re going to hear what that sounds like.” (The court

didn’t rule on defense counsel’s objection but let the

prosecutor rephrase the statement.)

 In opening statements: “[Y]ou’re going to hear from a

woman who has clearly gone through trauma.” (No

objection was made to this statement.)

 In closing argument: “[W]hat you heard [the victim’s

sister-in-law] say is exactly what you guys heard on the

24

911 call, which is someone that [has] experienced

trauma.” (The court overruled defense counsel’s

objection.)

 In rebuttal closing: “[Faudoa] doesn’t get to strangle

someone when she says bad things to him. He doesn’t

get to make her feel like she is going to die.” (No

objection was made to this statement.)

¶ 58

Prosecutors may use rhetorical devices and oratorical

embellishments in opening statements and closing arguments.

People v. Manyik, 2016 COA 42, ¶ 27; Strock, 252 P.3d at 1153.

But such embellishments become improper if they induce the jury

to determine guilt on the basis of passion or prejudice. Manyik,

¶ 27; Strock, 252 P.3d at 1153.

¶ 59

The evidence in this case — particularly the victim’s demeanor

and statements during her 911 calls, the other witnesses’ testimony

about her emotional state and her difficulty speaking shortly after

she had made the calls, and the photos showing marks on her neck

and face — supports an inference that the victim was traumatized

when Faudoa choked her. That same evidence, along with the

25

expert evidence on strangulation, also supports an inference that

she may have felt she was going to die.

¶ 60

Thus, it was not improper for the prosecutor to make

references to the victim’s trauma. See Maloy, ¶ 65 (prosecutor’s

reference to the victim’s trauma wasn’t improper because, “[w]hile

there was no direct evidence that [the victim] suffered trauma,

reasonable jurors could have inferred that [she] would have

experienced trauma based on the evidence presented”). Instead, as

the trial court properly concluded, these were the type of oratorical

embellishments that are allowed at trial. See Manyik, ¶ 27; Strock,

252 P.3d at 1153.

III. Conclusion

¶ 61

The judgment is affirmed.

JUDGE RICHMAN and JUDGE HARRIS concur.