Peo v. Erickson

19CA0684 Peo v Erickson 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0684

El Paso County District Court No. 17CR3379

Honorable Deborah J. Grohs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Ray Erickson II,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III

Opinion by JUDGE LIPINSKY

Furman and Brown, JJ., concur

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

Announced October 7, 2021

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel K. Mercer, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Michael Ray Erickson II appeals his judgment of conviction for

possession of a weapon by a previous offender (POWPO). We affirm.

I. Background Facts

¶ 2 Officer Raymond Shepard of the Colorado Springs Police

Department pulled Erickson over for driving an unregistered car.

Alexandria Morris, a friend of Erickson’s, was seated in the

passenger seat when the officer pulled the car over.

¶ 3 As Officer Shepard approached the car to speak to Erickson,

the officer saw the “grip of [a] handgun . . . sticking up in plain

view” from “between the driver’s seat and the center console.” The

officer asked Erickson to step out of the car so that he could secure

the gun. Erickson complied. Underneath the gun, Officer Shepard

saw a clear pipe with white residue.

¶ 4 Erickson told Officer Shepard that the gun belonged to

Morris’s boyfriend. While speaking with Officer Shepard, Erickson

neither denied knowledge of the gun nor appeared surprised that

the officer had found it.

¶ 5 Officer Shepard looked up Erickson’s name in the police

database and discovered he had a previous felony conviction. The

officer arrested Erickson for being a felon in possession of a firearm.

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¶ 6 The prosecution charged Erickson with POWPO, possession of

drug paraphernalia, driving under restraint, and several traffic

infractions, but later dismissed all the charges except for the

POWPO charge. Under section 18-12-108(1), C.R.S. 2020, a person

commits the crime of POWPO “if the person knowingly possesses,

uses, or carries upon his or her person a firearm . . . subsequent to

the person’s conviction for a felony . . . .”

¶ 7 At trial, Morris testified that she and Erickson did not know

there was a gun in the car until Officer Shepard pulled them over

and they started to look for the car’s “paperwork.” She said that

Erickson had loaned the car to her and her boyfriend, Andrew

Godfre, for a couple of days to see if they would like to buy it.

Morris testified that, after they decided not to buy the car, Erickson

picked it up from Godfre’s house. Morris said that she and

Erickson had been in the car for no more than thirty minutes before

Officer Shepard pulled them over. She testified that, only after the

officer pulled the car over did she discover that Godfre had left his

gun in the car.

¶ 8 Godfre testified that the gun was his and that he had left it in

the car. He said he kept his gun in the car for safety and that he

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stored it between the driver’s seat and the center console. He also

said that he did not tell Morris or Erickson that he had left his gun

in Erickson’s car.

¶ 9 Based on this evidence, defense counsel argued that Erickson

did not know the gun was in the car and, thus, he did not

“knowingly” possess it for purposes of the POWPO statute.

¶ 10 The jury found Erickson guilty of POWPO, and the trial court

sentenced him to two years in prison. Erickson appeals.

II. Discussion

¶ 11 Erickson contends that his judgment of conviction should be

reversed for three reasons: (1) the trial court erred by overruling

defense counsel’s objection to the prosecutor’s questions regarding

criminal charges previously filed against Morris; (2) the prosecutor

committed flagrant misconduct in his closing argument by telling

the jury that he found it “hard to believe” Morris’s testimony; and

(3) these alleged errors cumulatively deprived him of a fair trial. We

are not persuaded.

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A. The Prosecution’s Impeachment of Morris

1. Additional Facts

¶ 12 On cross-examination, the prosecutor asked Morris about her

prior felony conviction:

PROSECUTOR: You were convicted in

17CR4198 of False Information to a

Pawnbroker; is that right?

MORRIS: Yes.

PROSECUTOR: You pawned stolen items to a

pawnbroker and claimed ownership of those

items as well as being in possession of them

for longer than you had; isn’t that true?

DEFENSE COUNSEL: Objection, Your Honor;

that’s not what the charge is, nor is that the

conviction.

PROSECUTOR: Do you remember what you

pled guilty to?

MORRIS: Yes.

PROSECUTOR: What did you plead guilty to?

MORRIS: False Information to a Pawnbroker.

. . . .

PROSECUTOR: Now, the reason why you were

convicted of that is because you had stolen

jewelry, and you falsely claimed ownership of it

to a pawnbroker as well as being in possession

of it for longer than you had; isn’t that right?

MORRIS: Yes.

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¶ 13 On re-direct, defense counsel asked Morris further questions

about her conviction:

DEFENSE COUNSEL: Just regarding your

conviction, I want to have – give you an

opportunity to clarify. You did not plead guilty

nor were you convicted of possessing stolen

property; is that right?

MORRIS: Correct.

DEFENSE COUNSEL: And you were not

convicted nor did you plead guilty to stealing

any property?

MORRIS: Correct.

DEFENSE COUNSEL: You were convicted of

False Information to a Pawnbroker?

MORRIS: Yes.

DEFENSE COUNSEL: And can you explain

what False Information to a Pawnbroker is?

Do you recall – is it when you pawn an item,

you have to fill out a slip?

MORRIS: Yes.

DEFENSE COUNSEL: And when you fill out a

slip, they ask you a number of questions?

MORRIS: Yes.

DEFENSE COUNSEL: And if you – if you make

a mistake, either intentionally or otherwise, on

that slip, have you provided false information

to a pawnbroker?

MORRIS: Correct.

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DEFENSE COUNSEL: And that is a felony

conviction?

MORRIS: Correct.

. . . .

DEFENSE COUNSEL: In this situation there

was an allegation that there was stolen

property?

MORRIS: Correct.

DEFENSE COUNSEL: But you were charged

with and pleaded to and convicted of providing

false information regarding that property?

MORRIS: Correct.

¶ 14 On recross-examination, the prosecutor asked Morris

follow-up questions regarding her plea agreement and conviction:

PROSECUTOR: So [in] that same case you

were also charged with Theft; isn’t that true?

MORRIS: No.

PROSECUTOR: It’s not true? It’s not true that

you had three counts, one of which was False

Information to a Pawnbroker, one of which was

Theft of Property [$]2,000 to $5,000 worth of

value, and one of them was Theft of Property

[$] 2,000 to $5,000 in value as a Conspiracy

charge?

MORRIS: The other two were dropped if I’m not

mistaken.

PROSECUTOR: As a part of your plea bargain,

correct?

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¶ 15 Defense counsel objected to this question, but the trial court

overruled the objection, saying to defense counsel, “You asked her if

she was in possession of stolen property, and . . . she just said

that . . . [she] owned the property for nine months when she had

only owned it for six months. So I think it’s fair game to clarify the

facts of the situation.” The prosecutor continued:

PROSECUTOR: When you pled guilty to False

Information to a Pawnbroker, one of the

stipulations of that plea agreement was that

those charges would be dismissed as part of

that plea agreement, correct?

MORRIS: Correct.

PROSECUTOR: They were not dismissed prior

to you entering that plea; is that correct?

MORRIS: Correct.

2. Standard of Review and Applicable Law

¶ 16 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). A trial

court abuses its discretion only if its “ruling was manifestly

arbitrary, unreasonable, or unfair.” Id.

¶ 17 Under section 13-90-101, C.R.S. 2020, a witness may be

impeached by proof of a prior felony conviction. People v. Huynh,

98 P.3d 907, 913 (Colo. App. 2004). The scope of questioning “is

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generally limited to the name, nature and date of the offense for

which the witness was convicted.” Id. (quoting Robert J. Dieter,

Colorado Criminal Practice and Procedure § 19.42, at 381 (1996)).

Questions regarding the facts underlying the prior offense are

improper “unless relevant for impeachment purposes.” Id. (quoting

Dieter, § 19.42). In addition, a prosecutor “may not ask whether a

prior felony conviction arose from a plea or a trial.” People v.

Gomez, 211 P.3d 53, 57 (Colo. App. 2008), abrogated on other

grounds by Moore v. People, 2014 CO 8, 318 P.3d 511.

¶ 18 But “[c]ourts may relax this limitation if a party ‘opens the

door’ to otherwise inadmissible evidence.” People v. Clark, 214 P.3d

531, 539 (Colo. App. 2009), aff’d on other grounds, 232 P.3d 1287

(Colo. 2010). “The concept of ‘opening the door’ represents an effort

by courts to prevent one party in a criminal trial from gaining and

maintaining an unfair advantage by the selective presentation of

facts that, without being elaborated or placed in context, create an

incorrect or misleading impression.” Golob v. People, 180 P.3d

1006, 1012 (Colo. 2008). When a party “opens the door” to

otherwise inadmissible evidence, opposing counsel “may then

inquire into the previously barred matter.” Id.

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3. The Trial Court Did Not Err by Allowing the Prosecutor to Ask

Morris About Her Previous Criminal Charges Because Defense

Counsel Opened the Door to Such Questioning

¶ 19 Initially, we note that, although the prosecutor, during cross-

examination, first asked Morris about the charge to which she

pleaded guilty, Erickson did not object to that question and does

not argue on appeal that the court erred by allowing it. Rather, in

his appeal, Erickson focuses exclusively on the prosecutor’s

questions on recross-examination regarding the charges filed

against Morris.

¶ 20 The trial court did not err by overruling defense counsel’s

objection to the prosecutor’s questions on recross-examination

because defense counsel opened the door to that questioning. As

noted above, defense counsel had asked Morris about her plea

agreement and whether her case had included allegations of stolen

property. Defense counsel also asked Morris whether she had been

“charged with and pleaded to and convicted of” providing false

information to a pawnbroker. This questioning created the possible

inference that Morris had been acquitted of a theft charge following

a trial. The prosecutor’s questioning on recross-examination

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clarified for the jury that, although Morris had been charged with

theft, a jury had not acquitted her of such an offense.

¶ 21 Thus, we hold that the prosecutor’s recross-examination

properly did not exceed the scope of evidence to which defense

counsel’s re-direct examination had opened the door.

¶ 22 Moreover, the prosecutor did not mention the dismissed

charges in his closing argument. To the contrary, the prosecutor

noted Morris’s felony conviction during closing argument for the

sole purpose of attacking her credibility. See Clark, 214 P.3d at 540

(holding that, during closing argument, a lawyer may remind the

jury of a witness’s prior convictions to impeach the witness’s

credibility).

¶ 23 For these reasons, the trial court did not abuse its discretion

by allowing the prosecutor to question Morris about her prior

criminal charges and plea agreement.

B. The Prosecutor’s Comment that He Found It Hard to Believe

that Morris Was Unaware of the Gun

1. Additional Facts

¶ 24 During closing argument, defense counsel cited Morris’s and

Godfre’s testimony that the gun belonged to Godfre to support the

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argument that Erickson did not know the gun was in the car and,

thus, did not knowingly possess it.

¶ 25 In rebuttal, the prosecutor said:

[Defense counsel] said that Miss Morris was

not aware that the gun was in the car. They

don’t see or find the gun until they start

looking for paperwork. This is my car. This is

a very large center console. I take -- I have a

gun -- I’m not gonna take it out of here. It’s

actually bolted in – it’s sitting right there with

the top handle exposed. I get into said car and

I buckle my seat belt. I find it hard to believe

that anyone would have not realized that there

is a gun there in that particular spot that’s

exposed so that an officer can see it in that

particular circumstance.

Defense counsel did not object to this argument.

2. Standard of Review and Applicable Law

¶ 26 “We review prosecutorial statements to which no

contemporaneous objection was made for plain error. Plain error

occurs only when an error so undermines the fundamental fairness

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

jury’s verdict.” Domingo-Gomez v. People, 125 P.3d 1043, 1053

(Colo. 2005) (citation omitted). “Only prosecutorial misconduct

which is ‘flagrantly, glaringly, or tremendously improper’ warrants

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

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1997)). “Prosecutorial misconduct in closing argument rarely

constitutes plain error.” People v. Strock, 252 P.3d 1148, 1152-53

(Colo. App. 2010).

¶ 27 We engage in a two-step analysis in reviewing a claim of

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

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

questionable conduct was improper based on the totality of the

circumstances and, second, whether such actions warrant reversal

according to the proper standard of review.” Id.

¶ 28 Because closing argument is counsel’s opportunity “to point to

different pieces of evidence and explain their significance within the

case,” it “may properly include the facts in evidence and any

reasonable inferences drawn therefrom.” Domingo-Gomez, 125 P.3d

at 1048. “[A] prosecutor has wide latitude in the language and

presentation style used to obtain justice.” Id. “[I]t is not proper,”

however, “for a prosecutor to refer to facts not in evidence or to

make statements reflecting his or her personal opinion or personal

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

2006).

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¶ 29 “Claims of improper argument must be evaluated in the

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

before the jury.” Strock, 252 P.3d at 1153. “Defense counsel’s

failure to object is a factor that may be considered in examining the

impact of a prosecutor’s argument and may ‘demonstrate defense

counsel’s belief that the live argument, despite its appearance in a

cold record, was not overly damaging.’” Id. (quoting People v.

Rodriguez, 794 P.2d 965, 972 (Colo. 1990)).

3. The Prosecutor’s Comment, Even if Prosecutorial Misconduct,

Does Not Warrant Reversal Under Plain Error Review

¶ 30 Erickson argues that the prosecutor’s statement that he

“f[ou]nd it hard to believe that anyone would have not realized that

there [was] a gun” in the car because it was “exposed so that an

officer can see it in that particular circumstance” was an improper

expression of his personal opinion regarding Morris’s credibility.

¶ 31 Even if we assume that the comment constituted prosecutorial

misconduct, however, the misconduct was not “flagrantly, glaringly,

or tremendously improper” such that reversal is warranted under

the plain error standard. Domingo-Gomez, 125 P.3d at 1053

(quoting Avila, 944 P.2d at 676).

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¶ 32 The allegedly improper comment constituted only one sentence

within the prosecutor’s closing argument. See id. (“Comments that

[are] ‘few in number, momentary in length, and [are] a very small

part of a rather prosaic summation’ do not warrant reversal under

the plain error standard.” (quoting People v. Mason, 643 P.2d 745,

753 (Colo. 1982))). Further, the trial court instructed the jury that

it was “the sole judge[] of the credibility of each witness and the

weight to be given the witness’s testimony.” “Absent a showing to

the contrary, we must presume that the jury understood and

followed the trial court’s instructions.” People v. Bass, 155 P.3d

547, 552 (Colo. App. 2006).

¶ 33 Finally, we consider the lack of an objection to the comment,

which suggests that defense counsel did not believe at the time that

it was overly damaging. See Strock, 252 P.3d at 1153. And, as

noted above, misconduct in closing argument “rarely constitutes

plain error.” Id.

¶ 34 Thus, we conclude that the prosecutor’s comment in rebuttal

closing argument does not warrant reversal.

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C. Cumulative Error

¶ 35 Because we reject each of Erickson’s contentions of error, we

similarly reject his argument that his convictions should be set

aside based on cumulative error. People v. Rios, 2020 COA 2, ¶ 39,

463 P.3d 322, 330 (“Because there was no error, there can be no

cumulative error.”).

III. Conclusion

¶ 36 The judgment is affirmed.

JUDGE FURMAN and JUDGE BROWN concur.