Peo v. Freyta-Duran

22CA1444 Peo v Freyta-Duran 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1444
City and County of Denver District Court No. 21CR4693
Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Carla D. Freyta-Duran,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Sullivan and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Claire Pakis, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Carla D. Freyta-Duran, appeals her convictions of

one count of first degree criminal trespass (of a dwelling) and two

counts of third degree assault. She contends that the trial court

permitted improper testimony from a police officer, erroneously

admitted other acts evidence, and plainly erred in permitting

prosecutorial misconduct in closing argument. We disagree and

affirm.

I. Background

¶2 Freyta-Duran and Joseph Maynes were in a relationship for

nearly eight years and broke up approximately eight months before

the incident in January 2021. During their time together, Freyta-

Duran and Maynes lived at his home, where they co-parented their

similarly aged children. After the break-up, Maynes began seeing

Regina Deleon. Deleon eventually moved into Maynes’ residence.

Maynes also shared the home with his adult son and a roommate.

¶3 The night before the incident, Maynes’ son spent the night at

Freyta-Duran’s home. Freyta-Duran believed that Maynes’ son

stole money from her son’s room before he left. The next day,

Freyta-Duran and her cousin went to Maynes’ home to confront his

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son and retrieve the missing money. She claimed that Maynes’

roommate let her inside the home.

¶4 Upon entering the home, Freyta-Duran went directly to

Maynes’ bedroom, kicked open the door, and yelled about the

missing money. Maynes and Deleon were asleep, and Maynes’ son

and roommate were elsewhere in the house. When Freyta-Duran

saw Maynes in bed with Deleon, she “lost control.” As Deleon

dialed 911, Freyta-Duran knocked over and threw items around the

room and hit both Maynes and Deleon. Maynes pushed Freyta-

Duran off of them and attempted to remove her from his room.

Maynes’ son and roommate then escorted Freyta-Duran out of the

house. Freyta-Duran was gone by the time the police arrived.

¶5 The State charged Freyta-Duran with second degree burglary

of a dwelling and two counts of third degree assault as acts of

domestic violence. A jury convicted her of the lesser offense of first

degree criminal trespass, and both counts of third degree assault.

The trial court also found the trespass and the assault convictions

naming Maynes were acts of domestic violence.

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II. Officer Testimony

¶6 Freyta-Duran contends that the trial court erroneously

admitted an investigating officer’s testimony describing the

condition of Maynes’ bedroom as being consistent with Maynes’ and

Deleon’s descriptions of what occurred. She alleges that this

improperly bolstered their testimony, usurped the jury’s factfinding

function, and provided an improper legal opinion. We disagree.

A. Additional Facts

¶7 Officer Monet Jackson responded to the 911 call placed by

Deleon. The following colloquy occurred during the officer’s direct

examination.

[Prosecutor:] In addition to speaking with Mr.
Maynes and Ms. Deleon, did you conduct any
other investigation on scene?

[Officer:] Yes.

[Prosecutor:] What investigation did you
conduct?

[Officer:] Basically, looking at the scene, seeing
if the scene tells us anything. I observed
multiple items that appeared to have been
thrown around the bedroom, which was
consistent with her coming into the residence
without Mr. Maynes’ knowledge or permission,
entering the bedroom while he was sleeping,
slapping him twice on the right side of his face
as well as his girlfriend.

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¶8 Defense counsel objected and argued that the response

amounted to bolstering and went to “the ultimate issue the jury

must decide.” The trial court overruled the objection, finding that it

“was basically a description of the physical things that [the Officer]

saw.”

B. Standard of Review and Applicable Law

¶9 We review a court’s evidentiary ruling for an abuse of

discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair. Id.

¶ 10 The parties agree that Freyta-Duran preserved her bolstering

and ultimate issue arguments, but the People assert that she did

not preserve her legal opinion argument. We agree and review that

contention for plain error. People v. Arzabala, 2012 COA 99, ¶ 83.

An error is plain if it is obvious and substantial, and so undermines

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

reliability of the judgment of conviction. Hagos v. People, 2012 CO

63, ¶ 14. We review the preserved issues for harmless error. Id. at

¶ 12. An error is harmless if, when viewed in light of the entire trial

record, it did not substantially influence the verdict or affect the

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fairness of the trial proceedings. People v. Delsordo, 2014 COA 174,

¶ 7.

¶ 11 CRE 701 governs the admission of lay witness testimony and

provides that such testimony is proper if it is “(a) rationally based

on the perception of the witness, (b) helpful to a clear

understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.”

¶ 12 A prosecutor improperly bolsters a witness’ testimony by

implying that the testimony is truthful, thereby invading the

province of the fact finder. Venalonzo v. People, 2017 CO 9, ¶ 32.

¶ 13 Moreover, a testifying witness may not usurp the jury’s

factfinding role. People v. Robles-Sierra, 2018 COA 28, ¶ 24. CRE

704 provides that opinion testimony that is “otherwise admissible is

not objectionable because it embraces an ultimate issue to be

decided by the trier of fact.” In determining whether witness

testimony usurped the jury’s function, courts consider whether (1)

the witness opined that the defendant committed or likely

committed the crime; (2) the testimony was clarified on cross-

examination; (3) the expert’s testimony usurped the trial court’s

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function by expressing an opinion on the applicable law or legal

standard; and (4) the jury was properly instructed on the law and

that it could accept or reject the witness’ opinion. People v. Rector,

248 P.3d 1196, 1203 (Colo. 2011). Further, while a witness cannot

testify concerning his belief that the defendant committed the

charged crime, “police officers may testify about the reasons they

took certain investigative steps, even where this testimony touches

upon prohibited subjects.” People v. Penn, 2016 CO 32, ¶¶ 31-32.

C. Analysis

¶ 14 We first reject Freyta-Duran’s assertion that the officer’s

testimony improperly bolstered Maynes’ and Deleon’s testimony.

Instead, we agree with the trial court that the officer described her

investigative steps. See Penn, ¶¶ 31-32. The officer described

interviewing Maynes and Deleon and then investigating the scene to

see what additional information it could provide. Based on her

observations of the bedroom’s appearance, she concluded it was

consistent with what the witnesses described. See id.; see also Vigil

v. People, 2019 CO 105, ¶¶ 26-29 (officer permissibly opined, based

on firsthand observations as a lay witness, that shoeprints at the

crime scene visually matched the defendant’s shoes); People v.

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Brewer, 720 P.2d 583, 587-88 (Colo. App. 1985) (the officer

permissibly opined, based on his interrogation of the defendant,

that the defendant’s actions were voluntary). Moreover, we reject

Freyta-Duran’s assertion that the officer’s use of the phrase

“consistent with” constitutes an impermissible opinion on the

truthfulness of Maynes’ and Deleon’s statements. As used here, its

purpose was to describe the continuing investigation and not to

opine on credibility. Id. Indeed, the officer never used the word

truth or stated any belief that the witnesses were telling the truth.

¶ 15 For the same reasons, we conclude that the officer’s testimony

did not express an opinion regarding whether the applicable legal

standard was satisfied or otherwise usurp the jury’s factfinding

role. Indeed, she never mentioned the elements of the offenses

charged or tied them to her observations, so we fail to see how any

error was obvious. And the officer’s use of “consistent with” did not

invade the province of the jury since she never said that Freyta-

Duran actually committed the elements of the charged offenses.

See People v. Atencio, 140 P.3d 73, 76 (Colo. App. 2005) (officer’s

testimony that the amount of drugs seized was “consistent with an

7
intent to distribute” did not invade jury’s province because he never

said that the defendant actually possessed that intent).

¶ 16 To the extent Freyta-Duran claims the officer’s testimony was

“speculative” because the officer did not personally observe the

events in the bedroom, we reject that claim and conclude that the

officer’s statement about Freyta-Duran’s state of mind, while

perhaps inartful, constitutes a reasonable inference from her

observations and the witness interviews she conducted. Brewer,

720 P.2d at 587-88. Moreover, the testimony, when viewed in

context, did not so undermine the fundamental fairness of the trial

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

conviction. The prosecutor admitted photos of the scene, so the

jurors had an independent basis from which to decide whether the

physical evidence was consistent with Maynes’ account.

¶ 17 Finally, even assuming the testimony should have been

excluded, we conclude its admission was harmless. The officer’s

statements were brief, constituted a small part of her entire

testimony, and constituted an even smaller part of the trial. People

v. Mendenhall, 2015 COA 107M, ¶ 69 (concluding that the

screening testimony was harmless because it was brief and

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constituted a small part of the witness’ entire testimony). Moreover,

the prosecutor did not argue the statements as evidence of Freyta-

Duran’s guilt in closing argument. Additionally, Freyta-Duran

testified, so the jury was able to independently assess the credibility

of all the participants. See Davis v. People, 2013 CO 57, ¶ 21

(finding no error in the admission of the detective’s credibility

assessments during the interviews because the witnesses testified

at trial, so the jury had ample opportunity to independently judge

their credibility). Further, the court instructed the jury that it

should consider police officers’ testimony as it would any other

witness, and absent contrary evidence, we presume the jury

understood and followed this instruction. See Washington v.

People, 2024 CO 26, ¶ 31. Finally, the jury’s acquittal on the most

serious charge demonstrates that it was not improperly influenced

by the officer’s testimony. See People v. Larsen, 2017 CO 29, ¶ 16

(a split verdict is an indication the outcome was not affected by

prejudice).

¶ 18 Accordingly, we discern no abuse of discretion in the

admission of this evidence.

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III. Other Acts Evidence

¶ 19 Freyta-Duran next contends that the admission of evidence

about her attempts to “damage the cars” outside of Maynes’ house

when leaving constitutes inadmissible CRE 404(b) evidence that

requires reversal. We decline to address this issue because we

conclude Freyta-Duran invited any error.

¶ 20 “The doctrine of invited error prevents a party from

complaining on appeal of an error that he or she has invited or

injected into the case; the party must abide the consequences of his

or her acts.” People v. Rediger, 2018 CO 32, ¶ 34. The invited error

doctrine applies to errors implicating constitutional rights. See

Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002); see also Montoya

v. People, 2017 CO 40, ¶ 35 (noting that “the constitutional

requirement that the prosecution prove the elements of a crime

beyond a reasonable doubt” does not foreclose a defendant’s loss of

the right to demand such proof because of the defendant’s own

conduct). But it only applies to a narrow range of cases in which

the error results from trial strategy and not mere oversight.

Rediger, ¶ 34.

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¶ 21 During Maynes’ direct examination, the prosecutor elicited his

account of the altercation inside the house and that he and his son

escorted Freyta-Duran out of the house. The prosecutor asked no

questions about what occurred outside the house. On cross-

examination, the following colloquy occurred:

[Defense counsel]: After [your son] came up to
the room – came into the room, it’s you,
Matthew, Ms. Deleon, [defendant] and
[defendant’s cousin] all in your house.

[Maynes]: Yes.

[Defense counsel]: Then [defendant] left the
house.

[Maynes]: She -- we forced her out of the
house.

[Defense counsel]: Okay. She left in her own
car.

[Maynes]: Yeah.

[Defense counsel]: She was not there -- she
was not there when the police arrived.

[Maynes]: No. I mean, there was also a big
commotion out in the front as well before she
left.

She --

[Defense counsel]: Okay.

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[Maynes]: -- I had -- there was some big rocks I
had for landscaping. She attempted to pick
those up and break Regina’s windshield. My
roommate stopped her from doing that.

[Defense counsel]: Okay. And let’s talk a little
bit at that. Mr. Maynes, you just told the jury
that Ms. Freyta-Duran attempted to smash
your windshield; right?

[Maynes]: Regina’s windshield.

[Defense counsel]: Okay. Remember writing
the statement with the officers?

[Maynes]: Yeah.

[Defense counsel]: And remember signing your
name saying it was a true statement?

[Maynes]: Mm-hmm, yes.

[Defense counsel]: Nowhere in that statement
do you say that Regina tried to smash the
windshield.

[Maynes]: I - - well, she did –

[Defense counsel]: -- or that Ms. Duran tried to
smash the windshield.

[Maynes]: Right.

¶ 22 The decisions concerning what witnesses to call and what

questions to ask are matters of trial strategy. See Davis v. People,

871 P.2d 769, 773 (Colo. 1994). While Maynes initially provided a

nonresponsive answer to defense counsel’s question about Freyta-

12
Duran’s absence when the police arrived, counsel never moved to

strike that answer and instead highlighted it by impeaching Maynes

with its omission from his written statement. We therefore

conclude that the admission of this evidence resulted from

counsel’s strategic decision to use this nonresponse for

impeachment purposes and not from mere oversight. Because

Freyta-Duran invited the error that she now asks us to correct, we

decline to address her contention because she must abide the

consequences of her acts. See Rediger, ¶ 34.

IV. Prosecutorial Misconduct

¶ 23 Freyta-Duran next contends that pervasive prosecutorial

misconduct rendered her trial fundamentally unfair and requires

reversal. She alleges the prosecutor improperly argued credibility,

misstated the facts, trivialized the burden of proof, and “barred” the

jury from considering certain evidence. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 24 “Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.” Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We will not

disturb the trial court’s rulings regarding such statements absent

13
an abuse of that discretion. People v. Strock, 252 P.3d 1148, 1152

(Colo. App. 2010).

¶ 25 Freyta-Duran’s claims of prosecutorial misconduct are

unpreserved, limiting our review to plain error. See People v. Leyba,

2019 COA 144, ¶ 55, aff’d, 2021 CO 54. Reversal under this

standard requires that the misconduct be obvious and so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction. People v.

Walker, 2022 COA 15, ¶ 28. To constitute plain error, the

misconduct must be flagrant or glaring or tremendously improper.

People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119

P.3d 1073 (Colo. 2005).

¶ 26 When reviewing claims of prosecutorial misconduct, we

conduct a two-step analysis. 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, if the comments were improper, we evaluate whether they

warrant reversal according to the proper standard of review. Id.

¶ 27 In conducting this analysis, we consider the prosecutor’s

alleged error in the context of the argument as a whole and in light

14
of the evidence before the jury. People v. Samson, 2012 COA 167,

¶ 30. A prosecutor is permitted to comment on the admitted

evidence and the reasonable inferences that can be drawn from the

evidence, employ rhetorical devices, and engage in oratorical

embellishment and metaphorical nuance. Id. at ¶ 31. And because

arguments delivered in the heat of trial are not always perfectly

scripted, we give the prosecutor the benefit of the doubt when their

remarks are ambiguous or simply inartful. Id. at ¶ 30. However,

closing arguments cannot be used to mislead or unduly influence

the jury. Domingo-Gomez, 125 P.3d at 1049. A prosecutor may not,

for example, intentionally misstate the evidence, attempt to inflame

the jurors’ passions, or offer a personal opinion as to the

defendant’s guilt. See id.

B. Analysis

1. Credibility

¶ 28 The trial evidence revealed conflicting accounts of what

occurred in Maynes’ home. After summarizing the evidence and

discussing the jury instructions, the prosecutor focused on

credibility and argued that the jury should credit Maynes’ and

Deleon’s testimony because they were consistent with each other

15
and were corroborated by the physical evidence and the officers’

observations. She then argued that Freyta-Duran’s testimony did

not make sense and noted that Freyta-Duran’s claim that she went

to the house to speak with Maynes’ son was inconsistent with her

going directly to Maynes’ bedroom and kicking in the door. She

also argued the implausibility of Freyta-Duran’s expectation that

Maynes’ adult son would be sharing a bedroom with his father.

When discussing credibility, the prosecutor made the following

statement, challenged here:

Where her story falls apart is how she can’t
stick to a single thread and backtracked every
time she was confronted with the illogical
nature of her story. Because there’s what it
was: A story. It was not evidence -- or it
wasn’t the truth, it wasn’t the evidence. They
weren’t facts.

¶ 29 The prosecutor then rhetorically asked, “[I]f she really was

going there to see [his son], why did she take that hard right to kick

open that door?” The prosecutor then posited that Freyta-Duran’s

plan to confront Maynes’ son was “an excuse to get revenge.”

¶ 30 Defense counsel responded by arguing that “[s]he told you the

truth,” and that Maynes’ and Deleon’s versions did not make sense.

In rebuttal, the prosecution challenged the argument that Freyta-

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Duran’s testimony was credible, pointing to its “illogic” and

inconsistencies. She noted that the prosecution witnesses had

“nothing to gain” by testifying as they did, while Freyta-Duran did

“have a motive to change her story, to tweak her story, to make it

seem different from what occurred, to downplay what she actually

did.”

¶ 31 We discern no misconduct in the prosecutor’s argument, for

four reasons. First, the jury was tasked with deciding the facts

based largely on the credibility of the witnesses present in the

bedroom, so comparisons of the witnesses’ versions of what

occurred were proper. See Domingo-Gomez, 125 P.3d at 1050 (a

prosecutor may ask the jury not to believe a witness but should not

call the witness a liar). We conclude the prosecutor’s rebuttal was a

proper response to defense counsel’s argument that Freyta-Duran

was telling the truth and was anchored in the instruction telling the

jury it should assess each witness’ motive for testifying when

considering credibility. See People v. Nardine, 2016 COA 85, ¶ 53

(comment on credibility proper when tied to credibility instruction

and argument encouraged jury to consider whether testimony was

corroborated by other evidence).

17
¶ 32 Second, the prosecutor never called Freyta-Duran a “liar” or

used the word “lie” in her argument. Id. While we acknowledge

that she argued Freyta-Duran’s statement was not the truth (a form

of the word lie), the record shows that she recognized her mistake

and immediately corrected it by saying it was not factual. People v.

Nerud, 2015 COA 27, ¶¶ 53-55 (prosecutor’s argument that two

witnesses were credible not improper when drawn from the

evidence). Although the remark was susceptible to being

considered a personal opinion, it was neither inflammatory nor

intended to evoke a strong emotional response, so we view it as

unintentional and inartful. See Domingo-Gomez, 125 P.3d at 1051-

52 (use of phrase “did not tell you the truth,” though inartful and

susceptible to being considered a personal opinion, was not

improper).

¶ 33 Third, when considered in the context of the complete

argument, we discern nothing that would suggest the prosecutor

expressed a personal opinion of Freyta-Duran’s credibility. Instead,

the record shows that she argued the consistencies between the

physical evidence and her witnesses’ statements, and the

inconsistencies in Freyta-Duran’s statements. Where the jury’s

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decision rested on credibility determinations, we see no other way

to argue the case effectively. See People v. Wallace, 97 P.3d 262,

270-71 (Colo. App. 2004) (where case turned on which witnesses to

believe, each counsel was entitled to argue their witnesses were

more credible than the other side’s witnesses); see also Domingo-

Gomez, 125 P.3d at 1051 (courts should consider language used,

context of statement, and other relevant factors to determine

whether comment improperly expresses a personal opinion of

credibility).

¶ 34 Finally, we are not convinced that the remark saying Freyta-

Duran’s statement was not evidence, somehow precluded the jury

from considering it. This assertion is contradicted by the trial

court’s instruction stating that the witness testimony was evidence

and its reminder to the jury that the arguments of counsel are not

evidence.

2. Misstatement of Fact

¶ 35 We conclude that the prosecutor’s misstatement of fact was

not intentional and thus forms no basis for reversal. While a

prosecutor may not misstate the facts, such conduct rises to the

level of misconduct only when it is intentional and when the

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prosecutor intends to mislead the jury as to the inferences it may

draw from the evidence. Domingo-Gomez, 125 P.3d at 1049.

¶ 36 Here, the prosecutor argued that “when [Freyta-Duran] kicked

him repeatedly, . . . she used an act of violence on him and she had

been in a relationship. So it’s domestic violence.” Maynes testified

that Freyta-Duran slapped him with her hands and used her feet to

kick open the door and kick over the fan, so we agree that a

misstatement of fact occurred. Nevertheless, we view this as a

verbal slip that did not affect the outcome of the case. Indeed,

arguments delivered in the heat of trial are not always perfectly

scripted. Samson, ¶ 30. Whether Freyta-Duran used her hands or

feet to assault Maynes has no bearing on whether the assault was

an act of domestic violence. Moreover, Freyta-Duran has not

explained, nor can we see, how this mistake misled the jury in

deciding whether the assault was an act of domestic violence. And

the fact that it drew no objection from defense counsel in the

moment supports our conclusion that it was not intentional. See

Wend, 235 P.3d at 1097 (absence of objection indicates remark not

overly damaging).

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3. Burden of Proof

¶ 37 When explaining the reasonable doubt instruction, the

prosecutor stated that “beyond a reasonable doubt . . . breaks down

to what is and what ifs.” She described the “what is” as the

concrete facts and the “what ifs” as vague questions and

speculations. She then explained that questions like “what if this

happened” were speculative and not reasonable doubt. As best we

understand Freyta-Duran’s argument, she asserts that these

remarks precluded the jury from considering evidence for which

there was no explanation (like how the pill bottle was overturned)

and that they constituted a misstatement of the law. We disagree

because the trial court properly instructed the jury on its role to

assess witness credibility, its prerogative to accept or reject any

testimony, the presumption of innocence, the definition of

reasonable doubt, and the fact that the prosecutor’s argument was

not evidence. People v. Duncan, 2023 COA 122, ¶ 39 (finding

prosecutor’s statements about “what ifs” doubts did not shift the

burden of proof or constitute misconduct). Moreover, these

remarks occurred during a larger discussion of the reasonable

doubt instruction, which is not challenged here because it properly

21
informed the jury of the law. Therefore, we discern no error, let

alone plain error, in these statements and conclude they did not

trivialize the burden of proof.

V. Cumulative Error

¶ 38 Freyta-Duran last contends that the alleged errors, when

taken together, show that she did not receive a fair trial.

¶ 39 The cumulative error doctrine applies when “the cumulative

effect of [multiple] errors and defects substantially affected the

fairness of the trial proceedings and the integrity of the fact-finding

process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting

People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).

¶ 40 However, because we have found no errors, we necessarily

conclude the cumulative error doctrine does not apply. See People

v. Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error

analysis is required only when multiple errors have been identified).

VI. Disposition

¶ 41 The judgment is affirmed.

JUDGE SULLIVAN and JUSTICE MARTINEZ concur.

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