Peo v. Casados

23CA0801 Peo v Casados 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0801
Jefferson County District Court No. 21CR2375
Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jesse Casados,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Harris and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Philip J. Weiser, Attorney General, Jenna Baker, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jesse Casados, appeals his convictions for first

degree aggravated motor vehicle theft, reckless driving, and careless

driving resulting in injury. He contends that the trial court

erroneously admitted his statements to police and that the

prosecution engaged in misconduct. We affirm his convictions.

I. Background

¶2 In September 2020, police were dispatched to a multi-car

accident in Jefferson County. Officer Shaun Granmoe, who arrived

at the scene around 10:30 or 10:45 a.m., saw Casados being

removed from the driver’s seat of one of the cars. Casados was the

only person injured. Granmoe described Casados’s injuries as

“pretty significant,” including a “broken or shattered femur, . . . a

broken or shattered wrist,” and a potential brain bleed. He noted

that Casados was clearly “in a lot of pain” and was screaming at the

scene.

¶3 Casados was taken to the hospital, and Granmoe followed to

get his statement. Before speaking to Casados, Granmoe learned

he may have used drugs that day, and he was driving a stolen car.

Granmoe spoke to Casados in his hospital room. Casados was

laying in a hospital bed and being treated by medical staff, who

1
were “going in and out” of the room. Granmoe sat on the right side

of Casados’s bed; medical equipment and nurses starting

intravenous lines (IVs) were to his left.

¶4 Granmoe, who was armed and uniformed, identified himself as

a police officer and asked Casados basic questions to gauge his

alertness. Granmoe testified that Casados was awake, appeared

lucid, knew he was involved in a crash, and knew he was at a

hospital (but may not have known which hospital). Granmoe next

asked Casados how the crash happened. Casados explained “that

he was up north in Denver, didn’t know exactly where,” but when

he left the residence, a male named Lil Nut or Lil Nutty confronted

him, entered the car, held him at gunpoint, and told him to drive.

Casados said this person exited the car about thirty minutes before

the crash.

¶5 Granmoe then read Casados his Miranda1 rights and asked if

he understood them and wished to continue speaking. Casados

said he understood his rights. Granmoe described Casados as “very

open to speaking” but noted that his statements were at times

1 Miranda v. Arizona, 384 U.S. 436, 444-45, 478-78 (1966).

2
unclear or confusing as to the timeline, when and where the alleged

male entered the car, why that male exited the car, and whether law

enforcement was pursuing the car before the crash.2

¶6 When asked about the car, Casados said he believed it was

likely stolen because “it was associated with Lil Nutty.” He did not

explain the basis for this belief or his relationship with Lil Nutty.

As for the suspected drug use, fire department officials told

Granmoe that Casados “admitted to taking fentanyl” before the

crash. But Casados told Granmoe he “uses Percocet and had used

Percocet the day prior” but did not take drugs or medication before

the crash and was not otherwise intoxicated. However, Granmoe

testified that hospital staff “most likely” gave Casados “medications

to help with his pain.”

¶7 Because Casados needed further treatment, Granmoe ended

the interview. He described the tone of the conversation and

Casados’s mood as conversational and friendly. Granmoe made no

2 Fire department officials told Granmoe that Casados believed law

enforcement was pursuing him in the car. Granmoe’s investigation
revealed no evidence of any such pursuit. When asked about this,
Casados first said he was being pursued as far as he knew and then
said, “as far as I know, I don’t know,” which confused Granmoe.

3
threats or promises, nor did he put his hand on or remove his

weapon. He also did not touch or physically restrain Casados, but

he agreed that Casados was unable to leave due to his injuries.

Casados did not ask Granmoe to leave or say that he did not wish

to speak with Granmoe.

¶8 Casados was charged with first degree aggravated motor

vehicle theft, reckless driving, and careless driving resulting in

injury. Before trial he moved to suppress his statements to

Granmoe, which the trial court denied after a hearing. The court

found that Casados was not in custody when Granmoe initially

spoke to him, he validly waived his Miranda rights, and his

statements were voluntary. Casados was convicted as charged.

¶9 On appeal, Casados argues that his statements should have

been suppressed because (1) he was subject to custodial

interrogation in the hospital, and Granmoe did not give him a

Miranda warning at the start of the interrogation; (2) he did not

validly waive his Miranda rights; and (3) his statements to Granmoe

were involuntary. He also contends that the prosecutor made

several improper statements during closing argument. Finally, he

contends that cumulative error warrants reversal.

4
II. Casados’s Statements to Police

A. Standard of Review

¶ 10 When reviewing a suppression ruling, we only consider

evidence presented at the suppression hearing. Moody v. People,

159 P.3d 611, 614 (Colo. 2007). When reviewing a trial court’s

determinations as to whether a defendant was in custody, validly

waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966),

and made voluntary statements to law enforcement, we defer to the

court’s factual and credibility findings that enjoy record support.

People v. Davis, 2019 CO 84, ¶ 18 (custody); People v. Thames,

2015 CO 18, ¶ 13 (waiver); Effland v. People, 240 P.3d 868, 878

(Colo. 2010) (voluntariness). We review de novo the court’s ultimate

determinations of whether a defendant was in custody, a waiver

was valid, and a statement was voluntary. Davis, ¶ 18; Thames,

¶ 13; Effland, 240 P.3d at 878. The prosecution must prove the

validity of a Miranda waiver and the voluntariness of a defendant’s

statements by a preponderance of the evidence. Thames, ¶ 13;

Effland, 240 P.3d at 878.

5
B. Custody

¶ 11 Casados first argues that the trial court erroneously concluded

that he was not initially in custody when Granmoe questioned him,

so Miranda did not apply.3 We conclude that the court did not err.

¶ 12 Under the Fifth Amendment to the United States Constitution,

a “criminal defendant may [not] be compelled to testify against

himself.” People v. Padilla, 2021 CO 18, ¶ 15. To protect this right,

police must give Miranda warnings before engaging in custodial

interrogation. Id. (citing Miranda, 384 U.S. at 444-45, 478-79). If

police do not give Miranda warnings during a custodial

interrogation, a defendant’s statements made during the

interrogation are inadmissible. Id.

¶ 13 However, “Miranda warnings are required only when a person

is both in custody and subject to police interrogation.” Id. “A

person is in custody . . . if [he] has been formally arrested or if,

under the totality of the circumstances, a reasonable person in the

suspect’s position would have felt that [his] freedom of action had

3 The prosecution did not present evidence or argument about

whether the conversation was an interrogation, and the trial court
made no findings on this issue. Because we conclude that Casados
was not in custody, we need not reach the interrogation question.

6
been curtailed to a degree associated with formal arrest.” Id. at

¶ 16 (alterations in original) (citation omitted). To determine

whether an individual was in custody, we consider “the objective

circumstances of the interrogation, not . . . the subjective views . . .

[of] the interrogating officer[] or the person being questioned.” Id.

(citation omitted). We consider several factors, but “[n]o single

factor is determinative”:

(1) the time, place, and purpose of the
encounter; (2) the persons present during the
interrogation; (3) the words spoken by the
officer to the defendant; (4) the officer’s tone of
voice and general demeanor; (5) the length and
mood of the interrogation; (6) whether any
limitation of movement or other form of
restraint was placed on the defendant during
the interrogation; (7) the officer’s response to
any questions asked by the defendant;
(8) whether directions were given to the
defendant during the interrogation; and (9) the
defendant’s verbal or nonverbal response to
such directions.

Id. (citation omitted).

¶ 14 Generally, courts “have held that in-hospital questioning does

not amount to custodial interrogation.” People v. Milhollin, 751 P.2d

43, 52 (Colo. 1988) (citation omitted); see, e.g., People v. Theander,

2013 CO 15, ¶¶ 25-37; People v. DeBoer, 829 P.2d 447, 449 (Colo.

7
App. 1991) (hospitalized defendant was not in custody because she

“was alert and attentive,” cooperated with police, and — although

confined to a hospital bed — was not otherwise physically

restrained); People v. Miller, 829 P.2d 443, 445 (Colo. App. 1991).

¶ 15 In People v. Sampson, 2017 CO 100, ¶¶ 24-31, our supreme

court held that a hospitalized defendant was not in custody for

Miranda purposes. It found the following factors weighed in favor of

concluding Sampson was in custody: “(1) the conversation occurred

in a small room; (2) [the officer] was situated between Sampson and

the door; (3) Sampson was connected to medical equipment during

the conversation;” (4) the officer suggested that he did not believe

Sampson’s version of events; (5) the officer was “in uniform and

carrying a weapon; and (6) [the officer] didn’t tell Sampson he was

not in custody.” Id. at ¶ 25.

¶ 16 Conversely, the court determined the following factors weighed

against concluding that Sampson was in custody: (1) the officer

“asked open-ended questions in a conversational tone and Sampson

provided narrative responses; (2) Sampson was not visibly upset

. . .; (3) [the officer] presented few details of what may have

occurred,” and his questions were not “merely targeted at eliciting

8
Sampson’s agreement; (4) [the officer] did not handcuff or physically

restrain Sampson;” (5) the officer said Sampson would not be

arrested until he was released from the hospital; and (6) medical

staff were present during the conversation. Id. at ¶ 26. While the

factors were equally split, the court determined that “the overall

atmosphere was non-coercive” and reversed the trial court’s order

suppressing Sampson’s statements. Id. at ¶¶ 27, 32.

¶ 17 In Effland, our supreme court reached the opposite

conclusion, holding that a hospitalized defendant was in custody

but describing the case as a “close one.” 240 P.3d at 875-76. As

relevant here, the factors weighing in favor of a custody finding

included that (1) Effland repeatedly said he wanted an attorney and

did not want to talk, but the officers ignored his requests; (2) a

uniformed officer was stationed outside the door; (3) Effland “was

emotionally distraught and was crying”; (4) there were two officers,

who had excluded Effland’s daughter from the room; (5) the officers’

purpose was to elicit information about Effland’s role in a homicide;

(6) the interrogation was not narrative and consisted of questioning

and short answers; and (7) Effland could not “leave the premises

and was connected to an [IV].” Id.

9
¶ 18 Here, the factors that favor a custody finding include

(1) Casados was connected to medical equipment and unable to

leave, (2) Granmoe was uniformed and carrying his weapon, and

(3) Granmoe never told Casados he was not in custody. See

Sampson, ¶ 25. It is unclear whether the conversation occurred in

a small room, see id., but Granmoe’s testimony suggested that the

hospital room was larger than others. It is also unclear if Granmoe

sat between Casados and the door. See id.

¶ 19 As to the factors weighing against custody, (1) Granmoe asked

open-ended questions, and Casados provided narrative responses;

(2) the conversation’s mood and tone were friendly and

conversational; (3) Casados was not visibly upset; (4) Granmoe

“presented few details of what may have occurred and did not ask

questions merely targeted at eliciting [Casados’s] agreement;”

(5) Granmoe did not touch, handcuff, or restrain Casados; and

(6) medical staff were present. Id. at ¶ 26. Finally, nothing

indicates that Granmoe challenged Casados’s narrative. See id. at ¶

25. We do not consider the length of the conversation because the

record only reflects that Granmoe arrived at the scene around 10:30

10
or 10:45 a.m., and he Mirandized Casados at 12:01 p.m., but it is

unclear when the conversation started or ended. See Padilla, ¶ 16.

¶ 20 Unlike Effland, there was only one officer, no officers sat

outside the door, Casados did not ask for an attorney or say he

wanted to stop talking, he was not visibly upset or crying, and no

one was excluded from the room. See 240 P.3d at 875; see also

Theander, ¶¶ 36-37 (finding a hospitalized defendant not in custody

and emphasizing that police stopped questioning her after she

asked for an attorney). Moreover, Granmoe’s initial purpose was to

gain a general sense of the accident, not necessarily to elicit

information about Casados’s role in the car’s theft. See Effland,

240 P.3d at 875.

¶ 21 Casados argues that Granmoe was not investigating the

general circumstances of the crash because he was investigating a

possible DUI, knew the car was stolen, knew Casados caused the

crash, and no one else was injured. See id. But see Theander, ¶¶ 6,

37 (Theander was not in custody even though officers knew she

“could be a suspect or witness in [a] homicide investigation” before

questioning her). Even if Granmoe’s purpose weighs in favor of

finding Casados was in custody, it does not tip the scales overall.

11
¶ 22 Casados also argues that the trial court did not consider the

totality of the circumstances when it determined that he was not in

custody. The court’s custody finding was based on its conclusion

that, while Casados’s injuries prevented him from leaving, “he was

not restrained in any way, and . . . Granmoe was investigating the

circumstances surrounding the offense . . ., so he was under no

obligation to advise [Casados] initially.” Although the court did not

consider every factor, we conclude that its custody finding was

correct under the totality of the circumstances. See Padilla, ¶ 16.

And we may affirm on any basis supported by the record. People v.

Lopez, 2024 COA 26, ¶ 11 (cert. granted Dec. 23, 2024).

¶ 23 Finally, Casados suggests that the timing of the Miranda

warnings — only after he had made incriminating statements —

supports custody. We are not persuaded. See Sampson, ¶¶ 5-7 (a

victim said Sampson attacked her, officers questioned Sampson at

the hospital, and they Mirandized him after he admitted he had

lied). Under the totality of the circumstances, we conclude that the

trial court properly found Casados was not in custody when

Granmoe initially questioned him. See Padilla, ¶ 16.

12
C. The Miranda Waiver

¶ 24 Casados next argues that the trial court erroneously found

that he validly waived his Miranda rights such that his post-

warning statements were admissible. Because we determine that

Casados was not in custody, we do not reach this issue. See id. at

¶ 15 (custody is required for Miranda to apply).

¶ 25 In Sampson, ¶¶ 5-8, as discussed, the officer Mirandized

Sampson after he admitted to lying. Sampson then waived his

rights, and the officer told Sampson he would be arrested once

discharged from the hospital. Id. at ¶ 8. The trial court held that

Sampson did not validly waive his Miranda rights and suppressed

his post-warning statements. Id. at ¶ 1. In an interlocutory appeal,

the State challenged the suppression order, and our supreme court

reversed. “Assuming without deciding that giving Miranda warnings

can be considered in determining whether a suspect is in custody,”

the court held “that Sampson was not in custody during any part of

[the] conversation.” Id. at ¶ 32. Because Miranda did not apply,

the court did not consider the validity of his waiver. Id. at ¶¶ 2, 32.

¶ 26 We reach the same conclusion. Even fewer factors weigh in

favor of finding custody here than in Sampson. And unlike

13
Sampson, Granmoe never told Casados he would be arrested upon

discharge; he said an officer or detective would reach out for “any

other follow up.” That Granmoe read Casados his Miranda rights

and determined Casados was no longer free to leave is also not

dispositive. See People v. Minjarez, 81 P.3d 348, 353-54 (Colo.

2003) (an “undisclosed plan to take a suspect into custody” does

not, alone, “establish . . . custody for Miranda purposes”). Because

Casados “was not in custody during any part of [the] conversation,”

Miranda did not apply, and we need not consider whether he validly

waived his rights.4 Sampson, ¶ 32.

D. Voluntariness

¶ 27 Next, Casados contends that his statements to Granmoe were

involuntary. We disagree.

¶ 28 The United States Constitution “prevents admission of

involuntary statements into evidence, regardless of the defendant’s

4 Neither party argued this to the trial court or on appeal, but we

may affirm “on any ground supported by the record,” even those the
trial court “did not articulate or consider.” People v. Lopez, 2024
COA 26, ¶ 11 (cert. granted Dec. 23, 2024); Jordan v. U.S. Dep’t of
Just., 668 F.3d 1188, 1200 (10th Cir. 2011) (“[W]e may affirm on
any basis supported by the record, [including] . . . arguments not
reached by the district court or even presented to us on appeal.”)
(citation omitted).

14
custodial situation.” People v. Coke, 2020 CO 28, ¶ 17. Voluntary

statements are “the product of an essentially free an unconstrained

choice,” while statements are involuntary when “made after an

‘individual’s will has been overborne.’” People v. Cerda, 2024 CO

49, ¶ 37 (citations omitted). “[A] statement is involuntary if (1) the

government’s conduct was coercive and (2) that coercion ‘played a

significant role in inducing’ a confession or an inculpatory

statement.” Id. (citation omitted). To assess whether a defendant’s

statements were voluntary, we consider the totality of the

circumstances, including a non-exhaustive list of several factors:

(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

(3) whether the defendant was aware of the
situation;

(4) whether the police read Miranda rights to
the defendant;

(5) whether the defendant understood and
waived Miranda rights;

(6) whether the defendant had an opportunity
to confer with counsel or anyone else prior to
or during the interrogation;

(7) whether the statement was made during
the interrogation or volunteered later;

15
(8) whether the police threatened [the]
defendant or promised anything directly or
impliedly;

(9) the method or style of the interrogation;

(10) the defendant’s mental and physical
condition just prior to the interrogation;

(11) the length of the interrogation;

(12) the location of the interrogation; and

(13) the physical conditions of the location
where the interrogation occurred.

Id. at ¶ 38 (alteration in original) (citation omitted).

¶ 29 On appeal, Casados primarily focuses on the tenth factor, his

mental and physical condition. Before addressing this, we consider

the other factors and conclude that the following factors weigh in

favor of involuntariness: (1) Casados could not leave because of his

physical condition, (2) the record suggests that he did not have an

opportunity to speak to an attorney or anyone else before speaking

with Granmoe, and (3) his statements were made during the

conversation, not volunteered later. See id. We do not consider

waiver because we did not reach that issue, nor do we consider the

length of the encounter, which the record is unclear about.

16
¶ 30 Conversely, the following factors weigh against

involuntariness: (1) Casados was not in custody; (2) the trial court

found he “was aware of his circumstances and his predicament,” as

evidenced by his response to questions about drug use and his

“explanations for the circumstances of the crash”; (3) Granmoe

Mirandized Casados; (4) Granmoe made no threats or promises;

(5) the conversation was friendly and non-confrontational; and

(6) the conversation occurred in a hospital room with medical

personnel intermittently present. Id.; cf. People v. Nkongolo, 2025

CO 20, ¶ 24 (describing the coercive nature of “police-dominated

atmosphere[s]” (quoting Illinois v. Perkins, 496 U.S. 292, 296

(1990))).

¶ 31 With these factors in mind, we turn to Casados’s argument

that his potential drug use and physical condition rendered his

statements involuntary. We first consider his alleged intoxication,

noting that intoxication does not, alone, make a statement

involuntary. People v. Bryant, 2018 COA 53, ¶ 23 (citation omitted).

“Rather, coercive government conduct is the ‘necessary predicate to

the finding that a confession is not ‘‘voluntary.”’” Id. (quoting

Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

17
¶ 32 In Cerda, ¶ 40, the defendant was slurring and mumbling,

“ingested an opiate seven to eight hours before the interrogation[,]

and said he was intoxicated and couldn’t remember what had

happened the day before; . . . was on antipsychotic medication that

affected his cognitive abilities; [and] had been awake for

approximately sixteen hours when the interrogation began.” Police

also continued to question Cerda after he invoked his Miranda

rights, which the court described as coercive. Id. at ¶¶ 42, 44. Yet

the court held that Cerda’s statements were not involuntary

because “he demonstrated an awareness of his situation and the

consequences of speaking,” and the coercive tactics did not

overbear his will. Id. at ¶¶ 45, 47.

¶ 33 However, our supreme court held that a defendant’s

statements were involuntary when she had received morphine in

the hospital even though she “understood and followed directions,

. . . appeared to understand [the officer’s] questions[,] and her

responses were appropriate.” People v. Fordyce, 612 P.2d 1131,

1132-33, 1134 (Colo. 1980). Expert testimony established the

effects of morphine, including the likelihood that Fordyce would

have had difficulty realizing she was speaking to police and

18
“perceiving the important effect of information given to the police.”

Id. at 1133; cf. People v. DeBaca, 736 P.2d 25, 28 (Colo. 1987)

(distinguishing Fordyce because there was no evidence of

medication being administered or the medication’s possible effects).

¶ 34 Here, the record shows that, regardless of potential drug use,

Casados was alert, coherent, aware of his circumstances,

conscious, and appropriately responding to questions. See Cerda,

¶¶ 42-47; cf. People v. May, 859 P.2d 879, 883 (Colo. 1993) (finding

a Miranda waiver invalid when the defendant was intermittently

conscious, did not know the date or that he was in the hospital, and

could not remember critical details of the accident). That Casados

made some confusing statements and did not remember some

details about the timeline or where he was before the accident is not

dispositive — particularly where there was no evidence that he

unsuccessfully invoked his Miranda rights. See Cerda, ¶¶ 45-47.

¶ 35 Finally, despite some evidence that Casados took fentanyl, he

told Granmoe he had not used drugs and was not intoxicated. And

while Granmoe believed Casados may have received pain

medication, there was no testimony about the effects or onset of

fentanyl or pain medication. Compare Fordyce, 612 P.2d at 1133,

19
with DeBaca, 736 P.2d at 28. And the prosecution was not, as

Casados suggests, required to present such evidence. See DeBaca,

736 P.2d at 27-28 (holding that the trial court erred by finding that

the State did not establish voluntariness even though it offered no

evidence about purported medication or its effects). We therefore

conclude that Casados’s possible intoxication does not weigh in

favor of finding his statements involuntary.

¶ 36 Similarly, we conclude that any pain resulting from Casados’s

injuries did not render his statements involuntary. The United

States Supreme Court held that a defendant’s confession was

involuntary when “[h]e had been seriously wounded just a few

hours earlier, . . . complained . . . that the pain in his leg was

‘unbearable,’ . . . was evidently confused and unable to think

clearly,” and unsuccessfully asked the officers to stop questioning

him without an attorney. Mincey v. Arizona, 437 U.S. 385, 398-99,

401 (1978) (finding his statements “the result of virtually

continuous questioning of a seriously and painfully wounded man

on the edge of consciousness”).

¶ 37 Effland employed similar reasoning, noting that officers

continued questioning Effland despite his “weakened physical and

20
mental state” and attempts to invoke his rights. 240 P.3d at 878.

By contrast, nothing suggests that Casados’s pain was so

significant that he could not think clearly or was barely conscious

(even if some of his statements were inconsistent or confusing).

Importantly, unlike Effland and Mincey, Granmoe did not exploit

Casados’s weakened condition by continuing to question him after

he invoked his rights. See Theander, ¶ 45 (Even if there is

psychological coercion, it must “play[] a ‘significant role’ in inducing

the statements in order to exclude them.”) (citation omitted).

¶ 38 While it may have been more prudent for Granmoe to wait to

question Casados until he was no longer in pain and receiving

medical treatment, we conclude that — under the totality of the

circumstances — the trial court did not err by finding Casados’s

statements to Granmoe voluntary. See Cerda, ¶ 38.

III. The Prosecutor’s Statements

¶ 39 Finally, Casados argues that several of the prosecutor’s

statements in closing arguments constituted misconduct that

warrants reversal. While the statements were improper, the court’s

error in allowing them is not reversible.

21
A. Additional Facts

¶ 40 At trial, Granmoe testified about his conversation with

Casados. He first said Casados “stated that since [the car] was

associated with Little Nut or Little Nutty, he believed it to be stolen.”

On cross-examination, the defense asked if Casados said the car

was “most likely stolen.” Granmoe said, “Yes.” Finally, on redirect,

the prosecutor asked if Casados said “he believed the car was

stolen, or it was most likely stolen.” Granmoe said, “[B]ecause [it]

was associated with Little [Nutty], it was believed to be stolen.”

¶ 41 In closing arguments, the prosecutor said, “This isn’t a

mystery, folks. [Casados] confessed. Said, ‘Yeah, I knew the car

was stolen.’” Defense counsel objected to facts not in evidence, the

trial court overruled the objection, and the prosecutor continued,

“And because he confessed, . . . there is no mystery here.” Next, the

prosecutor said there was direct evidence of Casados’s guilt: “You

heard the officer who . . . asked [Casados] . . ., ‘[D]id you know it

was stolen? And [Casados’s] response, ‘Well it must have been

because Little Nut was associated with it.’ Now that was a

ridiculous story. . . . But at the very end he states, ‘Yeah, I knew it

was stolen.’” The court overruled the defense’s objection to facts

22
not in evidence. Finally, in rebuttal, the prosecutor said, “He runs

a red. Gets in the horrible accident. Breaks his leg. And says,

‘Yeah, I believed it was stolen.’ You know what’s another word for

‘believe,’ is ‘know.’” Defense counsel did not object.

B. The Prosecutor’s Conduct Was Improper

¶ 42 To determine whether a prosecutor engaged in misconduct, we

conduct a two-step inquiry. “First, we determine whether the

prosecutor’s conduct was improper based on the totality of the

circumstances.” People v. Licona-Ortega, 2022 COA 27, ¶ 85 (citing

Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). We then

“decide whether the misconduct warrants reversal under the

applicable standard.” Id. “Prosecutors may comment on the

evidence admitted at trial and the reasonable inferences that can be

drawn from it.” People v. Sparks, 2018 COA 1, ¶ 21. But

prosecutors may not misstate the evidence, “[n]or may they refer to

facts not in evidence.” Id. Similarly, prosecutors “may not misstate

or misinterpret the law.” People v. McMinn, 2013 COA 94, ¶ 62.

¶ 43 Casados argues that the prosecutor misstated the evidence

and argued facts not in evidence by characterizing his statements

as a confession and stating that he told Granmoe he knew the car

23
was stolen. He also asserts that the prosecutor misstated the law

by equating belief with knowledge.

¶ 44 As detailed above, Granmoe never testified that Casados said

he knew the car was stolen; he testified that Casados said he

believed the car was stolen. Thus, the prosecutor both misstated

the evidence (by misrepresenting Granmoe’s testimony) and argued

facts not in evidence (by replacing the word believe with the word

know). See Sparks, ¶ 21. Similarly, equating belief with knowledge

misstated the law. See § 18-1-501(6), C.R.S. 2024 (defining the

mental state, “knowingly,” in the criminal context); see also

Leonardo v. People, 728 P.2d 1252, 1256 (Colo. 1986) (“[K]nowledge

is an assurance of a fact or proposition founded on perception by

the senses, or intuition, while belief is an assurance based on

evidence, and from other persons. ‘Knowing’ literally imports a

state of mind close to absolute certainty; ‘believing’ requires

something less.”) (citation omitted).

¶ 45 The prosecutor’s statement that Casados confessed also

misstated the evidence. Granmoe did not say Casados confessed to

stealing the car or to knowing it was stolen. See Bruner v. People,

156 P.2d 111, 117 (Colo. 1945), abrogated by, Deeds v. People, 747

24
P.2d 1266 (Colo. 1987) (“A confession is an acknowledgment in

express words . . . of the truth of the guilty fact charged or of some

essential part of it.”) (citation omitted); Black’s Law Dictionary 374

(12th ed. 2024) (defining “confession” as an “oral or written

acknowledgement of guilt, often including details about the crime”).

¶ 46 Therefore, we conclude that the prosecutor’s statements were

improper. See Licona-Ortega, ¶ 85. However, as discussed below,

we conclude that the misconduct does not warrant reversal because

the evidence overwhelmingly supported Casados’s convictions.

C. The Prosecutor’s Misconduct Does Not Require Reversal

¶ 47 We review unpreserved claims of prosecutorial misconduct for

plain error. Id. at ¶ 88. “To constitute plain error, any

prosecutorial misconduct must be obvious and ‘must be flagrant or

glaring or tremendously improper, and it must so undermine the

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

reliability of the judgment of conviction.’” Id. (citation omitted).

“Prosecutorial misconduct in closing argument rarely constitutes

plain error.” People v. Smalley, 2015 COA 140, ¶ 37. If a preserved

claim of prosecutorial misconduct “‘specifically and directly

offend[s]’ a constitutional right,” we review for constitutional

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harmless error. Licona-Ortega, ¶ 86 (alteration in original) (quoting

Wend, 235 P.3d at 1097). We review preserved prosecutorial

misconduct claims that do not “specifically and directly offend a

[defendant’s] constitutional right[s]” for harmless error. Id. at ¶ 87.

¶ 48 We first conclude that the court did not plainly err by allowing

the prosecutor to equate belief with knowledge. See id. at ¶ 88.

While the error may have been obvious, it did not “so undermine

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

reliability of” Casados’s conviction. Id. (citation omitted).

¶ 49 For first degree aggravated motor vehicle theft, the prosecution

had to prove Casados “knowingly obtain[ed] or exercise[d] control

over the motor vehicle of another without authorization.” § 18-4-

409(2), C.R.S. 2020.5 “Knowingly” applies both to exercising control

over the vehicle and to an “awareness of lack of authority.” People

v. Stellabotte, 2016 COA 106, ¶ 20, aff’d, 2018 CO 66. The

evidence established that Casados was driving a stolen car, he

believed the car was likely stolen, he believed police were pursuing

5 The current first degree motor vehicle theft statute differs from the

2020 version, see section 18-4-409(2), C.R.S. 2024, so we cite the
2020 statute, which applied at the time of the offense.

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him before the crash, and his passenger fled the scene.6 Thus, the

jury could infer that Casados knowingly drove the car without

authorization. See People v. Donald, 2020 CO 24, ¶ 37 (juries may

infer knowledge from circumstantial evidence). The prosecutor’s

misstatement equating belief with knowledge did not undermine the

fairness of Casados’s trial. See Licona-Ortega, ¶ 88. The court also

instructed the jury to only apply its instructions on legal rules, not

the attorneys’ comments on the rules, and the jury instructions

properly defined the mental state, “knowingly.” See People v.

Carter, 2015 COA 24M-2, ¶¶ 59-61 (discerning no plain error in

part because the jury received proper instructions).

¶ 50 Similarly, we conclude that the prosecutor’s statements that

Casados confessed and said he knew the car was stolen were

harmless. Because these statements do not “specifically and

directly offend a constitutional right,” we review for harmless error.

Licona-Ortega, ¶ 87. Under this standard, we reverse if there is “a

reasonable possibility that the error might have contributed to the

6 At trial, a witness testified that, after the crash, he saw a woman

exit Casados’s car, “check on the person in the driver’s seat, and
flee the scene.”

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conviction.” Zoll v. People, 2018 CO 70, ¶ 18 (citation omitted).

Casados argues that the statements were not harmless because

(1) the evidence supporting motor vehicle theft was not

overwhelming; (2) saying that Casados confessed improperly

appealed to the jury’s passion; and (3) the prosecutor repeated the

comments.

¶ 51 First, as to evidence of guilt, Granmoe suggested that the

person who allegedly held Casados at gunpoint entered the car after

Casados. This suggests Casados had control of the stolen car

before the alleged apprehension. And, as discussed above, the car

was stolen, Casados believed it was stolen, he continued to drive it

after “Little Nutty” exited and until the crash, and he believed police

were pursuing him. The woman seen fleeing scene, the items in the

car potentially belonging to a woman,7 the amount of time between

the theft and accident (one month), and the lack of damage to the

steering wheel and ignition also do little to cast doubt on Casados’s

guilt; he drove a stolen car that he believed was stolen, regardless of

who stole it, when it was stolen, or whether it was damaged.

7 At trial, an officer testified that several items, which could have

belonged to a woman, were found in the car.

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¶ 52 For similar reasons, the prosecutor’s mischaracterization of

Casados’s statements as a confession did not appeal to the jury’s

passion or prejudice such that there was “a reasonable possibility

that the error might have contributed to the conviction.” Zoll, ¶ 18

(citation omitted). The evidence overwhelmingly supported

Casados’s guilt, and the statement did not encourage the jury to

reach a verdict “on the basis of bias or prejudice” rather than the

evidence. Harris v. People, 888 P.2d 259, 266 (Colo. 1995).

¶ 53 Finally, that the prosecutor repeated the improper statements

orally and through PowerPoint slides does not change our analysis.

Defense counsel told the jury Casados did not confess, reminded

the jury of Granmoe’s testimony, and the prosecution revised its

argument in rebuttal, noting that Casados said he believed the car

was stolen (despite having improperly equated belief with

knowledge). And the court’s improper rejection of defense counsel’s

objections did not, as Casados suggests, increase any prejudicial

effect. The court instructed the jury that it could not draw

conclusions from objections or the court’s rulings. See Carter, ¶ 59

(“[W]e presume that the jury followed [the court’s] instructions.”).

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¶ 54 Overall, we conclude that the court’s error in allowing the

prosecutor to misstate evidence and argue facts not in evidence was

harmless because, given the evidence that was properly before the

jury, there is not “a reasonable possibility that the error might have

contributed to the conviction.” Zoll, ¶ 18 (citation omitted).

¶ 55 We also reject Casados’s argument that cumulative error

warrants reversal. See Howard-Walker v. People, 2019 CO 69, ¶ 24

(Cumulative error requires reversal if “multiple errors . . .

collectively prejudice the substantial rights of the defendant, even if

any single error does not.”). The prosecutor’s misstatements were

brief, and the jury heard Granmoe’s repeated testimony — the day

before closing arguments — that Casados said he believed the car

was stolen. There was also significant evidence supporting his

guilt, the jury was instructed to reach a verdict solely based on the

evidence, and it was properly instructed on the law.

IV. Disposition

¶ 56 The judgment of conviction is affirmed.

JUDGE HARRIS and JUDGE SCHUTZ concur.

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