Peo v. Underwood

23CA1124 Peo v Underwood 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1124
El Paso County District Court No. 21CR3392
Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Derek Wayne Underwood,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emma Berry, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Derek Wayne Underwood appeals the judgment of conviction

entered after a jury found him guilty of second degree assault with

a deadly weapon. He contends that the trial court (1) abused its

discretion by denying his challenge for cause against a juror who

expressed a bias in favor of law enforcement; (2) plainly erred by

allowing a police officer to testify about statements the victim made;

and (3) plainly erred by allowing the prosecutor to make improper

statements during closing argument. He also contends that the

cumulative effect of these errors mandates reversal. We affirm the

judgment.

I. Background

¶2 In 2021, Underwood and the victim were coworkers at a

pottery shop in Manitou Springs. After learning that Underwood

did not have a place to live, the victim offered to let him stay in the

walk-in closet of his studio apartment, and Underwood accepted.

One evening, shortly after the victim returned home from work, he

and Underwood got into an argument. The argument escalated into

a physical altercation, during which Underwood cut the victim’s

1
hand with a chef’s knife. The victim fled the apartment and asked

someone to call the police.

¶3 The victim told responding police officers that Underwood had

stabbed him in the hand after he told Underwood to calm down.

Later, while being treated at the hospital, the victim told an officer

that Underwood had started the argument that led to the stabbing

because Underwood was annoyed that the victim wanted him to

return a borrowed cell phone.

¶4 When officers entered the victim’s apartment, they found

Underwood packing a bag and “in a hurry to get out of there.” In a

later police interview, Underwood told an officer that the victim

came home from work and “seemed upset” and “freak[ed] out” over

a woman named Amy who “doesn’t like him.” Underwood said he

tried to calm the victim down, but the victim responded with a

“condescending tone.” When Underwood told the victim not to

speak to him that way, the victim came toward Underwood with his

fists balled and his chest puffed out before grabbing a large piece of

“slag,” a byproduct of smelting ore. Underwood claimed that the

2
victim swung a bottle of laundry detergent at him and threw things

at him before leaving the apartment to call the police.

¶5 Underwood denied knowing how the victim’s hand was cut but

suggested that perhaps the slag caused the injury because it was

sharp. But when a police officer searched the victim’s apartment,

he did not find any slag; instead, he found a chef’s knife hidden in

the toilet’s tank. The officer did, however, find a bottle of laundry

detergent with blood on the handle.

¶6 As Underwood was escorted to booking after the interview, he

remarked that he wished he had killed the victim and muttered that

“dead men tell no tales.”

¶7 The People charged Underwood with first degree assault,

second degree assault — serious bodily injury, and felony

menacing. At trial, Underwood, through defense counsel, admitted

to stabbing the victim with a chef’s knife but claimed that he did so

in self-defense after being attacked by the victim, who was much

larger and “militarily trained.”

¶8 The jury rejected Underwood’s theory of self-defense and found

him guilty of second degree assault with a deadly weapon as a

lesser included offense of first degree assault. However, the jury

3
determined that Underwood did not cause serious bodily injury to

the victim, and it acquitted Underwood of the first degree assault,

second degree assault — serious bodily injury, and menacing

charges.

II. Denial of Challenge for Cause

¶9 Underwood first contends that the trial court reversibly erred

by denying his challenge for cause against Juror S. We are not

persuaded.

A. Additional Background

¶ 10 During voir dire, the prosecutor and Juror S had the following

exchange:

[THE PROSECUTOR]: [I]t sounds like you
know some people that have worked in law
enforcement. And so my question is, would
you judge a law enforcement officer that
testifies any differently than you would anyone
else that testifies? Because you’re the judge of
credibility. So would you judge their credibility
like you would anyone else?

[JUROR S]: Yes, I would say I would. I would
judge and listen to someone on law
enforcement and have — because of their
position, they would be more credible than
maybe someone outside the law.

[THE PROSECUTOR]: . . . . So you do have an
expectation that they would be more honest,

4
but you would still judge their credibility just
as you would anyone else?

[JUROR S]: Yes.

[THE PROSECUTOR]: And that expectation is
based on your other relationships and how you
view those individuals?

[JUROR S]: Yes.

[THE PROSECUTOR]: But would you just
assume that they would be as credible as your
friends?

[JUROR S]: I feel I try to judge everybody by
what they say and what they do. But someone
in the position of law enforcement or attorney
or whatever, I look up to those people because
that’s what they’re doing.

Defense counsel did not ask Juror S any follow-up questions about

how he judges the credibility of members of law enforcement.

¶ 11 Defense counsel challenged Juror S for cause, arguing that he

was biased due to his statements about law enforcement. The trial

court denied the challenge, noting that Juror S

indicated he could judge law enforcement
credibility like everyone else, even though he
has friends in law enforcement. . . . [W]hile he
indicated he looks up to those people, neither
side really clarified whether or not those people
really meant his friends that are in law
enforcement or just law enforcement at large.
But either way, the Court finds that there was
an insufficient basis for me to determine that

5
he was going to be biased or otherwise unable
to be impartial and fair in assessing the
credibility. His statements, obviously, to the
contrary, suggest otherwise.

¶ 12 The defense exhausted all of its peremptory challenges on

other prospective jurors, and Juror S served on the jury.

B. Standard of Review and Applicable Law

¶ 13 We review a trial court’s ruling on a challenge for cause for an

abuse of discretion. People v. Maestas, 2014 COA 139M, ¶ 11. A

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or it misconstrues or misapplies the law.

Id. This standard recognizes that the trial judge is in the best

position to assess a potential juror’s credibility, demeanor, and

sincerity, including statements that may appear to be inconsistent

or contradictory. People v. Sandoval, 733 P.2d 319, 321 (Colo.

1987).

¶ 14 An impartial jury is fundamental to a defendant’s

constitutional right to a fair trial. See Colo. Const. art. II, § 16.

“While jurors often express concern or indicate preconceived beliefs

during voir dire, such concerns and beliefs do not automatically

disqualify them from service.” People v. Marciano, 2014 COA

6
92M-2, ¶ 8. However, when a juror “evinc[es] enmity or bias toward

the defendant or the state,” the trial court must sustain a challenge

for cause unless “the court is satisfied, from the examination of the

juror or from other evidence, that [the juror] will render an impartial

verdict according to the law and the evidence submitted to the jury

at the trial.” § 16-10-103(1)(j), C.R.S. 2025; see Crim. P. 24(b)(1)(X);

People v. Clemens, 2017 CO 89, ¶ 15. “The ultimate test to be

applied in determining whether a juror should be dismissed for

cause is whether it appears that the juror would render a fair and

impartial verdict based on the evidence presented at trial and the

instructions given by the court.” People v. Vigil, 718 P.2d 496, 500

(Colo. 1986).

¶ 15 We review any error in the denial of a challenge for cause

under an “outcome-determinative analysis.” People v. Novotny,

2014 CO 18, ¶ 27. Thus, a defendant must show prejudice to

obtain reversal. Id. at ¶ 30 (Hood, J., concurring in part and

dissenting in part). But if a juror who is biased against the

defendant serves on the deliberating jury, the error is structural

7
and reversal is required. Clark v. People, 2024 CO 55, ¶ 35;

People v. Abu-Nantambu-El, 2019 CO 106, ¶ 29.

C. Discussion

¶ 16 Underwood asserts that Juror S expressed a bias in favor of

law enforcement and, therefore, that the court abused its discretion

by denying his challenge for cause. We disagree.

¶ 17 The facts in this case are similar to those in People v. Garrison,

2012 COA 132M, ¶¶ 45-57. There, the prospective juror said that

“his father was a deputy sheriff, his mother was appointed ‘special

deputy for traffic and investigation’ at an airport, and he had

‘numerous friends’ who worked in law enforcement.” Id. at ¶ 45.

He also said he generally believed law enforcement officers were

more credible than lay witnesses. Id. Nevertheless, the prospective

juror said that he would be fair and impartial to the defendant. Id.

at ¶ 54. In affirming the trial court’s denial of the challenge for

cause, the division found that the trial court was in a better

position to weigh and decide whether the prospective juror’s

conflicting testimony rendered him biased. Id. at ¶ 56.

¶ 18 Like the juror in Garrison, Juror S indicated he would be fair

and impartial. Indeed, when he was asked, “So you do have an

8
expectation that [members of law enforcement] would be more

honest, but you would still judge their credibility just as you would

anyone else?” Juror S responded, unequivocally, “Yes.” And he

made it clear that he “would judge and listen to someone on law

enforcement,” indicating that he would not automatically believe a

police officer and would instead “try to judge everybody by what

they say and what they do.” See id. at ¶ 55; People v. Richardson,

58 P.3d 1039, 1043 (Colo. App. 2002).

¶ 19 Moreover, Juror S had remained silent when the trial court

asked the entire jury panel if anybody (1) could not follow the

court’s legal instructions; (2) could not set aside “sympathy or

prejudice or bias”; or (3) had anything else “that might impact your

ability to be fair and impartial if you’re selected to serve as a juror

in this case.” See Vigil, 718 P.2d at 500. Notably, Juror S had

previously volunteered an answer to a question posed to the entire

panel, so the court could have “fairly attributed [his] silence to [his]

willingness to follow the law as instructed by the court as opposed

to a fear of speaking up.” Clemens, ¶ 22.

¶ 20 Therefore, like the division in Garrison, ¶ 57, we conclude that

the trial court here was in the best position to determine whether

9
Juror S “would render a fair and impartial verdict based on the

evidence and the jury instructions.” Accordingly, we discern no

abuse of discretion in the court’s ruling.

¶ 21 We are not persuaded otherwise by Underwood’s reliance on

People v. Prator, 833 P.2d 819, 821 (Colo. App. 1992), aff’d,

856 P.2d 837 (Colo. 1993). In Prator, a prospective juror’s eldest

son was a law enforcement officer. Id. Her husband and father-in-

law were also former police officers. Id. When asked if she could

remain unbiased, she replied, “I would like to believe I could do

that.” Id. However, upon further questioning, the prospective juror

conceded that she “really” had a doubt in her mind as to whether

she could set aside her personal feelings when she listened to the

testimony. Id. She said that she thought she would “‘end up’ being

biased.” Id. A division of this court concluded that it was error for

the trial court to deny the defense counsel’s challenge for cause

because the prospective juror could not be impartial. Id.

¶ 22 Unlike the juror in Prator, Juror S never expressed any

concerns about being biased for either party, and he said that he

would judge the credibility of members of law enforcement just as

he would anyone else. Thus, “voir dire indicated only that he held

10
law enforcement officers in ‘high regard,’” Garrison, ¶ 56, not that

he “evinc[ed] enmity or bias toward the defendant or the state,”

§ 16-10-103(1)(j).

III. Admission of Victim’s Statements

¶ 23 Underwood next contends that the trial court plainly erred by

allowing a police officer to testify about statements the victim made

while being treated at the hospital. We disagree.

A. Additional Background

¶ 24 The prosecutor called the victim as the first witness. At the

beginning of his testimony, the victim said that he has “a hard time

thinking” as a result of “[s]evere brain damage” caused by “[s]wine

flu hypoxia.” He further explained that he “lost a lot of memory of

what happened” on the day of the stabbing, stating that “a lot of

stuff got erased when they gave [him] 100 micrograms of Fentanyl

in the ambulance.”

¶ 25 So when the prosecutor asked whether he was “making phone

calls or trying to contact Mr. Underwood during the day” of the

stabbing, the victim answered that he could not remember.

Likewise, when questioned about how the argument with

Underwood started, what the argument was about, how the

11
argument escalated into a physical altercation, and when he picked

up the laundry detergent bottle, the victim repeatedly answered that

he could not recall.

¶ 26 At the conclusion of the victim’s testimony, neither the

prosecutor nor defense counsel requested that the trial court

continue his subpoena or require him to stay near the courthouse.

The court excused the victim, though it did not explicitly release

him from his subpoena.

¶ 27 Later that same morning, the prosecutor called a police officer

who had accompanied the victim to the hospital on the day of the

stabbing. The officer testified that, at the hospital, he had “tried to

ask [the victim] about the events that occurred to obtain a full

statement of what happened.” When the prosecutor asked if he

could recall what the victim had told him, the officer said:

Vaguely, I remember some specific statements.
He specifically stated that he was stabbed in
the hand. He did state that, I believe, he had
[Underwood] staying with him for a time. And
over the course of that time, [Underwood] . . .
had borrowed his phone and he was trying to
get hold of [Underwood] using his work phone,
calling his own phone because [Underwood]
had his phone. And, apparently, this had
aggravated [Underwood], which started the
argument in the first place when they got back

12
to the apartment. And then once they were at
the apartment, he said that . . . they got in an
argument and [Underwood] turned off the
lights. And then . . . he had a laundry
detergent bottle and he got stabbed in the
hand. It was pretty jumbled, I would say. He
jumped from point to point in his story. It
wasn’t clear all the way through.

¶ 28 Defense counsel did not object to this testimony or attempt to

recall the victim for further questioning about these statements.

B. Standard of Review and Applicable Law

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

discretion. Campbell v. People, 2019 CO 66, ¶ 21. And we review

de novo whether a defendant’s confrontation rights have been

violated. People v. Miranda, 2014 COA 102, ¶ 26, abrogated on

other grounds by, Rojas v. People, 2022 CO 8, ¶ 44. But because

Underwood did not preserve his evidentiary or confrontation

challenges at trial, we will reverse only if the trial court’s admission

of the victim’s statements amounted to plain error. See People v.

Arzabala, 2012 COA 99, ¶ 83.

¶ 30 An error is plain if it is both obvious and substantial.

People v. Miller, 113 P.3d 743, 750 (Colo. 2005). An error is obvious

if it contravenes a clear statutory command, a well-settled legal

13
principle, or Colorado case law. People v. Pollard, 2013 COA 31M,

¶ 40. An error is substantial if it so undermines the fundamental

fairness of the proceeding itself as to cast serious doubt on the

reliability of the judgment of conviction. Hoggard v. People, 2020

CO 54, ¶ 13.

¶ 31 Hearsay is a statement made by someone other than the

declarant that is offered in evidence to prove the truth of the matter

asserted. CRE 801(c). Hearsay is inadmissible unless an exception

applies. CRE 802.

¶ 32 Section 16-10-201(1), C.R.S. 2025, provides that, in a criminal

trial, a witness’s prior inconsistent statement “may be shown by

any otherwise competent evidence” if the proponent satisfies two

foundational requirements. See People v. Komar, 2015 COA 171M,

¶ 52. First, the witness must either (1) have been given an

opportunity to explain or deny the statement while testifying or

(2) still be available to give further testimony. § 16-10-201(1)(a).

And second, the previous inconsistent statement must “purport[] to

relate to a matter within the witness’s own knowledge.”

§ 16-10-201(1)(b). If these requirements are satisfied, the prior

14
inconsistent statement is admissible not only for impeachment, but

also as substantive evidence. Id.; Komar, ¶ 52.

¶ 33 Under the Confrontation Clause, testimonial out-of-court

statements are not admissible in a criminal trial unless the

declarant is unavailable and the defendant previously had an

opportunity to cross-examine the declarant. Crawford v.

Washington, 541 U.S. 36, 53-54 (2004). “Where a witness testifies

at trial and is therefore subject to cross-examination, admission of

the witness’s prior out-of-court statements does not violate a

defendant’s Confrontation Clause rights.” People v. Acosta, 2014

COA 82, ¶ 82. Even if the declarant does not remember making the

statements, as long as the declarant is present and available to

testify at trial, the defendant’s confrontation rights are not violated.

People v. Argomaniz-Ramirez, 102 P.3d 1015, 1017-18 (Colo. 2004).

C. Discussion

¶ 34 Underwood does not dispute that the victim’s hospital

statements were inconsistent with his testimony at trial1 and

1 In Davis v. People, 2013 CO 57, ¶ 7 n.2, the supreme court noted

that “[a] witness’s actual or feigned memory loss is tantamount to
denial,” which can justify admission of a prior inconsistent
statement under section 16-10-201(1), C.R.S. 2025.

15
related to matters within his personal knowledge. See § 16-10-

201(1). Instead, Underwood contends that the trial court plainly

erred by admitting the statements because (1) the foundational

requirements of section 16-10-201(1)(a) were not satisfied as the

victim was not given an opportunity to explain or deny the

statements while testifying and was no longer available to give

further testimony once the court excused him and (2) admitting the

statements after the victim was excused violated Underwood’s

confrontation rights as he could not cross-examine the victim about

the statements. We disagree.

¶ 35 First, even assuming that the victim was not “given an

opportunity to explain or deny” the hospital statements, it was not

obvious that he was no longer “available to give further testimony in

the trial” after the trial court excused him. § 16-10-201(1)(a); see

People v. Stewart, 568 P.2d 65, 67 (Colo. App. 1977) (even if a

witness is not given an opportunity to explain or deny a prior

statement, the witness’s prior inconsistent statement is still

admissible if the witness remains available to give further

testimony). The hospital statements were admitted the same

morning that the victim testified. Although the victim had been

16
excused, he had not been expressly released from his subpoena and

nothing in the record suggests he was unavailable. Critically,

defense counsel neither raised any concern regarding his

availability at that time nor attempted to recall him after the officer

testified about his hospital statements. See People v. Smith,

512 P.2d 269, 272 (Colo. 1973) (affirming admission of statements

under a previous version of the statute where “[t]here was no

showing that the statutory conditions to the admissibility of the

prior inconsistent hearsay statements had not been met”); see also

LePage v. People, 2014 CO 13, ¶ 15 (“According to the presumption

of regularity, appellate courts presume that the trial judge did not

commit error absent affirmative evidence otherwise.”). And

Underwood has not cited a Colorado case holding that excusing a

witness necessarily renders him unavailable, nor are we aware of

any. See Pollard, ¶ 40.

¶ 36 Second, it was not obvious that Underwood’s confrontation

rights were violated. The facts of this case appear to fit squarely

within Miranda, ¶ 2, in which a division of this court held that

the Confrontation Clause permits admission of
testimonial hearsay after the declarant has
testified and been released, provided that the

17
declarant testified concerning matters
addressed in the declaration, the declarant
was subject to cross-examination, and the
defendant did not ask that the prosecution be
required to recall the declarant for further
cross-examination after the hearsay had been
introduced.

¶ 37 These factors are met here:

• The victim testified that he did not remember trying to

call Underwood on the day of the stabbing, how the

argument began, what it was about, how it escalated into

a physical altercation, or when he picked up the laundry

detergent bottle. Thus, the victim “testified concerning

matters addressed in the” hospital statement, Miranda,

¶ 2 — namely, that the victim had been calling

Underwood trying to get his phone back and “this had

aggravated [Underwood], which started the argument in

the first place when they got back to the apartment.” See

People v. Thomas, 2014 COA 64, ¶ 20 (A witness’s

“testimony that she could not recall her prior statements

amounted to a denial that she had made them.”).

18
• The victim was subject to cross-examination, but defense

counsel chose not to ask him about his lack of memory

regarding the matters in the hospital statement.

• Defense counsel “did not ask that the prosecution be

required to recall the declarant for further cross-

examination after the hearsay had been introduced.”

Miranda, ¶ 2.

¶ 38 Nevertheless, Underwood attempts to distinguish this case

from Miranda. But “where an alleged error is unclear under present

law, the trial court does not commit plain error.” People v. Stroud,

2014 COA 58, ¶ 33; cf. Campbell v. People, 2020 CO 49, ¶ 41

(“While one could argue the similarities between this case and [a

previous case], we cannot say a judge would be expected to

recognize those similarities without the benefit of an objection.”).

¶ 39 Finally, and equally applicable to both the section

16-10-201(1)(a) and Confrontation Clause arguments, any error in

admitting the hospital statements was not substantial. Underwood

argues that “the hospital statements were the only evidence that

contradicted Underwood’s explanation” of how the argument

started, “and without them, no evidence suggested that Underwood

19
was the initial aggressor.” But as Underwood himself correctly

notes, Colorado case law “is clear that arguments and insults alone

do not make someone an initial aggressor.” See Castillo v. People,

2018 CO 62, ¶ 44. Thus, this case did not turn on who started the

argument or on whether the argument was over a cell phone or a

woman named Amy; it turned on who initiated the physical

altercation and whether Underwood used reasonable force to defend

himself in the apartment. Accordingly, we cannot conclude that the

admission of statements concerning who started the argument so

undermined the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction. See Hoggard,

¶ 13.

¶ 40 Because any error was not obvious and was not substantial,

we do not discern a basis for reversal.

IV. Prosecutorial Misconduct

¶ 41 Underwood contends the prosecutor committed misconduct

during closing argument by (1) telling the jury that the law does not

require that a person use force to be an initial aggressor;

(2) “sarcastically comment[ing] on [the victim’s] physical

characteristics”; (3) “opin[ing] on Underwood’s character in relation

20
to [the victim’s] social life and mental abilities”; and (4) asking the

jury to find justice for the victim. We conclude that no plain error

occurred.

A. Applicable Law and Standard of Review

¶ 42 We engage in a two-step analysis when reviewing claims of

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

(Colo. 2010).

¶ 43 First, we determine whether the conduct was improper based

on the totality of the circumstances. Id. We consider the context of

the argument as a whole and view it in light of the evidence before

the jury. People v. Samson, 2012 COA 167, ¶ 30. “A prosecutor

has wide latitude to make arguments based on facts in evidence

and reasonable inferences drawn from those facts.” People v.

Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). The prosecutor may

also “employ rhetorical devices and engage in oratorical

embellishment.” Samson, ¶ 31. Because arguments delivered in

the heat of trial are not always perfectly scripted, we give the

prosecutor the benefit of the doubt when his remarks are

“ambiguous or simply inartful.” Id. at ¶ 30. But the prosecutor

may not misstate the evidence or the law, id. at ¶ 32; People v.

21
Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073

(Colo. 2005), and the prosecutor “may not use arguments

calculated to inflame the passions and prejudices of the jury,”

People v. Nardine, 2016 COA 85, ¶ 35.

¶ 44 Second, if we identify misconduct, then we determine whether

it warrants reversal under the applicable standard of review. Wend,

235 P.3d at 1096. Underwood did not object to any of the alleged

improper statements, so we review his unpreserved claims of

prosecutorial misconduct for plain error. See People v.

Licona-Ortega, 2022 COA 27, ¶ 86. To meet this standard, the

conduct must be “flagrantly, glaringly, or tremendously improper”

and “so undermine[] 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)

(quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).

22
“Prosecutorial misconduct in closing argument rarely constitutes

plain error.” Weinreich, 98 P.3d at 924.

B. Initial Aggressor

¶ 45 During his closing argument, defense counsel told the jury

that

[the victim] testified, saying I grabbed the
laundry detergent bottle because I was feeling
harassed. I’ll tell you why he was feeling
harassed. He was feeling harassed because of
the argument that they were having about
Amy. . . . He wasn’t being physically harassed,
he wasn’t being harassed at all. [Underwood]
was just telling [the victim] something he did
not want to hear and that’s what caused [the
victim] to grab the laundry detergent bottle
and start the fight.

The prosecutor responded to this argument during his rebuttal

closing:

This wasn’t self-defense. It was a heated
argument. Most fights start as a heated
argument. It doesn’t mean you can’t be the
initial aggressor. Look at the self-defense
instruction that you have. Does it require that
an initial aggressor uses force? Do you see
that in there? Would that make sense if the
law requires that? I mean, to what point does
[the victim] have the right to say, hey, get off
me? There’s no way he made contact, there is
no evidence, . . . there is no bruising on
[Underwood] to support that he was beat
repeatedly with a laundry detergent bottle. I

23
think he got hit with soap. He had soap on
him. That was the aggression that [the victim]
had, going to throw some soap on you. That’s
fair. I’m going to take this knife and cut your
hand. Does that seem like a reasonable
amount of force to you? Bringing a knife to a
soap fight? This was not self-defense.

¶ 46 Underwood contends that the prosecutor’s rebuttal closing

“suggested to the jury . . . that Underwood could be the initial

aggressor without using or threatening physical force.” See Castillo,

¶ 44. But the prosecutor’s statement that the self-defense jury

instruction did not “require that an initial aggressor uses force” was

a correct statement of law. The Colorado Supreme Court has

defined an “initial aggressor” as “the person who ‘initiated the

physical conflict by using or threatening the imminent use of

unlawful physical force.’” Id. at ¶ 43 (emphasis added) (citation

omitted).

¶ 47 Viewing the prosecutor’s remark in context with the rest of his

statements, the prosecutor was not suggesting that mere argument

could make someone an initial aggressor. Instead, it appears that

the prosecutor was arguing either that Underwood’s physical

conduct during the argument constituted a threat of the imminent

use of physical force, see id. at ¶ 44 (“[A] physically threatening

24
action would make someone an initial aggressor.”), or that

Underwood was the initial aggressor when he cut the victim’s hand

because the victim’s act of “throw[ing] some soap on” Underwood

did not make the victim the initial aggressor.

¶ 48 Given these reasonable interpretations of the prosecutor’s

statement, we decline to assume that he was attempting to suggest

that Underwood became the initial aggressor through mere

argument. Making this assumption, as Underwood asks us to do,

would be contrary to the requirement that we give the prosecutor

the benefit of the doubt when his remarks are “ambiguous or

simply inartful.” Samson, ¶ 30. Accordingly, we conclude that the

statement was not improper.

C. The Victim’s Characteristics

¶ 49 During closing argument, defense counsel argued that

Underwood was

scared of [the victim] given the size difference
and given what he knows about [the victim].
[The victim] had talked about how he had went
to military school. [Underwood] had this belief
that he had gone to military school and had
military training. And so not only was there
the size discrepancy, but there was this skill
level and combat discrepancy to where
[Underwood] has the belief that [the victim]

25
has combat training and would be able to
cause even more damage than somebody who
just is merely the [sic] size.

The prosecutor directly responded to this argument:

[The victim] is a large man with military
training, right? I mean, he’s probably a tier
one special operations ninja. And when you
look at Mr. Underwood, despite the fact that he
was getting repeatedly hit by this giant with
ninja training, he has no marks, zero. He says
I’m covered in soap. Does that story make
sense? Is that plausible?

....

Let’s take a look at [the victim’s] size. Does he
look like a giant, lethal force? He has no
upper body. Look at those shoulders. He’s tall
and he’s fat. It’s not a nice way to put it. He
is not a huge menacing character. You heard
from him, he walks around scared. He’s been
beat up numerous times. His experience in
military school, he got beat up.

¶ 50 Underwood contends that “[t]hese statements served no

purpose other than to inflame the passions of the jury” and that

“[t]he prosecutor could have described evidence of [the victim’s]

physical . . . characteristics without resorting to sarcastic, mocking

comments that appealed to the jurors’ sympathy.” But the

prosecutor’s remarks directly responded to defense counsel’s

argument that Underwood reasonably feared the victim due to the

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victim’s size and military training. The “prosecutor is afforded

considerable latitude in replying to an argument by defense

counsel,” People v. Lovato, 2014 COA 113, ¶ 63 (quoting People v.

Perea, 126 P.3d 241, 247 (Colo. App. 2005)), and he is allowed to

“employ rhetorical devices and engage in oratorical embellishment,”

Samson, ¶ 31. We conclude that the prosecutor’s statements were

“no more than . . . oratorical embellishment and w[ere] not unfairly

prejudicial.” People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003).

Thus, they were not improper.

D. The Dynamic Between Underwood and the Victim

¶ 51 During his rebuttal closing, the prosecutor told the jury that

the victim

makes friends with people that work [with
him]. Take Mr. Underwood, for example, a guy
that’s kind of living on the streets, kind of
street smart. For [the victim], it’s an
opportunity to have a friend. You can come
stay with me. He’s that lonely. Type of person
like Mr. Underwood, been around the block
once, sees the opportunity, can get up from
living on the streets. This guy is not smart, he
is not going to be hard to manipulate, control,
push around a little bit. Sure, he’s tall, he
weighs more. Maybe if he sits on you or hits
you with soap.

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¶ 52 Underwood argues that these statements were (1) not based

on evidence presented at trial”; (2) irrelevant; and (3) intended to

“capitalize[] on society’s predisposition against the unhoused (like

Underwood) as opportunistic and manipulative, and on sympathy

for the lonely and friendless.” We disagree.

¶ 53 First, the prosecutor did not improperly comment on facts not

in evidence. It was undisputed that Underwood was living on the

streets before the victim invited him to stay at the victim’s

apartment. And the prosecutor had “wide latitude to make

arguments based on facts in evidence and reasonable inferences

drawn from those facts.” Strock, 252 P.3d at 1153 (emphasis

added). Given Underwood’s experience living on the streets, it is

reasonable to infer that he had some “street smarts.” And given

that the victim invited Underwood to stay in his studio apartment

for free, it is reasonable to infer that the victim was lonely. Thus,

the statements were based on evidence presented at trial.

¶ 54 Second, the statements were relevant. Underwood’s theory at

trial was that the victim was the aggressor and that Underwood,

being smaller and meeker, had to stab the victim to defend himself.

Therefore, the social dynamic between the two men was relevant to

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self-defense — the central issue at trial — and the prosecutor’s

statements were relevant to that dynamic.

¶ 55 Third, given that the statements were based on the evidence

presented at trial and were relevant to the core issue, we are not

persuaded that the prosecutor was attempting to “capitalize[] on

society’s predisposition against the unhoused . . . and on sympathy

for the lonely and friendless.” See Samson, ¶ 30.

E. Justice for the Victim

¶ 56 The prosecutor concluded his rebuttal closing by telling the

jury that it

should and need[s] to find Mr. Underwood
accountable for his actions. People like [the
victim] deserve justice. Just because he is not
able to articulate things nearly as well, he still
has rights. We need to find him justice. Find
Mr. Underwood guilty, hold him accountable.

¶ 57 The prosecutor’s statements about justice for the victim were

improper, and they were obviously so. See, e.g., People v. Marko,

2015 COA 139, ¶ 221, aff’d on other grounds, 2018 CO 97.

However, we conclude that they were not “flagrantly, glaringly, or

tremendously improper” and did not “so undermine[] the

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

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the reliability of the jury’s verdict.” Domingo-Gomez, 125 P.3d at

1053 (quoting Avila, 944 P.2d at 676).

¶ 58 The statements “were ‘few in number, momentary in length,

and were a very small part of a rather prosaic summation.’” Id.

(quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982)). And

rather than “pressur[ing] jurors by suggesting that guilty verdicts

[were] necessary to do justice for a sympathetic victim,” People v.

McBride, 228 P.3d 216, 223 (Colo. App. 2009) (emphasis added), the

improper remarks were made in the context of asking the jury not

to acquit Underwood merely because of the victim’s difficulty

expressing himself on the stand. See Domingo-Gomez, 125 P.3d at

1053 (In determining if improper statements amount to plain error,

“[f]actors to consider include . . . the context in which the

statements were made.”). And the failure to object to the

statements “may ‘demonstrate defense counsel’s belief that the live

argument, despite its appearance in a cold record, was not overly

damaging.’” Strock, 252 P.3d at 1153 (quoting People v. Rodriguez,

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

¶ 59 Moreover, the jury returned a split verdict. “While a split

verdict does not conclusively decide the harmlessness question, it is

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‘an indication that the jurors exercised some discretion in their

deliberations’ and that the error did not cause them to ‘blindly

convict the defendant.’” Washington v. People, 2024 CO 26, ¶ 35

(quoting Martin v. People, 738 P.2d 789, 795-96 (Colo. 1987)). The

jury returned a guilty verdict only for second degree assault with a

deadly weapon as a lesser included offense of first degree assault; it

acquitted Underwood of first degree assault, second degree

assault — serious bodily injury, and menacing. And in a special

interrogatory, the jury found that Underwood did not cause serious

bodily injury to the victim. Thus, it is evident that the jury’s verdict

was not motivated by sympathy toward the victim. The prosecutor’s

improper statements do not cast serious doubt on the reliability of

the jury’s verdict and, accordingly, do not amount to plain error.

See Domingo-Gomez, 125 P.3d at 1053.

V. Cumulative Error

¶ 60 Finally, Underwood contends that the cumulative effect of the

alleged errors at his trial mandates reversal. We are not persuaded.

¶ 61 “The doctrine of cumulative error requires that numerous

errors be committed, not merely alleged.” People v. Conyac, 2014

COA 8M, ¶ 152. Under this doctrine, while an error may be

31
harmless in isolation, reversal is required when the cumulative

effect of multiple errors or defects substantially affects the fairness

of the trial or undermines the integrity of the factfinding process.

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

¶ 62 We have assumed, for the purpose of our plain error analysis,

that it was error for the trial court to allow a police officer to testify

about statements the victim made at the hospital, and we have

concluded that the prosecutor made improper statements about

doing justice for the victim.2 However, we concluded that these

errors, individually, did not constitute plain error.

¶ 63 For the same reasons we did not find that the admission of the

hospital statements and the prosecutor’s improper remarks were,

individually, substantial error, we now further conclude that the

cumulative effect of the two errors did not substantially impact the

2 We flatly reject Underwood’s assertion that our cumulative error

analysis should also consider prejudice caused from the trial court’s
proper use of its discretion by declining to remove Juror S for
cause.

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fairness of the trial or undermine the integrity of the factfinding

process. See id.

VI. Disposition

¶ 64 The judgment is affirmed.

JUDGE FREYRE and JUDGE PAWAR concur.

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