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April 2, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Toler-Anderson

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA0176

• Precedential Status: Non-Precedential

• Opinion

• Authorities (39)

• Cited By (0)

• Summaries (0)

• Similar Cases (38.3K)

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Combined Opinion

23CA0176 Peo v Toler-Anderson 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0176
El Paso County District Court No. 21CR3424
Honorable David A. Gilbert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paris Toler-Anderson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Paris Toler-Anderson appeals the judgment of conviction

entered after a jury found him guilty of second degree murder and

illegal discharge of a firearm. He contends that (1) the district court

erred by admitting other act evidence in violation of CRE 404(b);

(2) the prosecution committed misconduct; and (3) the cumulative

effect of these errors deprived him of a fair trial. We disagree with

these contentions and affirm the judgment.

I. Background

¶2 Toler-Anderson was residing at Community Alternatives of El

Paso County (CAE), a community corrections facility, when he

began a romantic relationship with the victim. After he ended the

relationship and reconciled with his previous girlfriend (his

children’s mother), the victim began threatening him and his family.

¶3 According to Toler-Anderson, the victim stalked both him and

his girlfriend, brought armed men to his girlfriend’s residence,

attempted to run his girlfriend off the road, and threatened to have

him shot. The victim also threatened to cause “trouble” for him at

CAE by reporting that she had been forging pay stubs for him when

he was not employed.

1
¶4 On June 4, 2021, the victim texted Toler-Anderson, “I left your

case manager the message” and “Bitch you’re going to jail tonight.”

The next day, she texted him, “I’m not done with you yet[,] watch

what I do next,” and “I’m a take it out on your baby mama so you

gonna have to kill me bitch.”

¶5 On June 16, 2021, Toler-Anderson drove Jahlique Dorsey to a

gun store, where Dorsey purchased a handgun and a box of Fiocchi

brand .40 caliber ammunition.

¶6 Shortly after midnight that night, the victim and her friend,

Christopher Campbell, were parked outside a bar. The victim’s

goddaughter, Teiasha Stewart, was a passenger in another car

parked alongside them. Toler-Anderson drove up, exited his

vehicle, and approached the victim’s driver’s side door. According

to Campbell and Stewart, Toler-Anderson then pulled out a gun and

shot the victim before running back to his car. Campbell, who was

also armed, fired several shots at Toler-Anderson as he fled.

¶7 Officers recovered two sets of spent shell casings: one set was

located next to the driver’s side of the victim’s Jeep and the other

was found near a side street. The casings near the side street

matched Campbell’s gun, while those next to the Jeep were Fiocchi

2
brand .40 caliber ammunition — the same type that Dorsey had

purchased.

¶8 The People charged Toler-Anderson with first degree murder

and illegal discharge of a firearm, later adding two habitual criminal

counts. At trial, Toler-Anderson asserted that he acted in self-

defense. His theory was that the victim lured him to the bar so that

Campbell could ambush him, with Stewart and the unnamed driver

of her car there as backup. When Toler-Anderson approached the

victim to try to convince her to leave him and his family alone, she

opened the Jeep’s door to give Campbell a clear shot. Upon seeing

Campbell’s gun, Toler-Anderson reacted first, firing as he ran away

and hitting the victim.

¶9 The jury convicted Toler-Anderson of the lesser included

offense of second degree murder and illegal discharge of a firearm.

The district court found that the prosecution had proved the

habitual criminal counts, and it sentenced Toler-Anderson to

seventy-two years in the custody of the Department of Corrections.

¶ 10 Toler-Anderson now appeals.

3
II. Other Act Evidence

¶ 11 Toler-Anderson contends that the district court erred by

(1) admitting evidence concerning CAE without providing a

contemporaneous limiting instruction each time such evidence was

introduced and (2) admitting evidence that the victim was allegedly

forging pay stubs for him to submit to CAE. We disagree.

A. Governing Law and Standard of Review

¶ 12 Under CRE 404(b), evidence of other crimes, wrongs, or acts is

not admissible to prove a person’s bad character to show that the

person acted in conformity with that character on a particular

occasion. But evidence of other crimes, wrongs, or acts may be

admissible for another purpose, such as proving motive. CRE

404(b)(2).

¶ 13 Intrinsic acts — those that (1) directly prove the charged

offenses or (2) occurred contemporaneously with the charged

offenses and facilitated their commission — are not “other” acts

and, therefore, fall outside the scope of CRE 404(b). Rojas v.

People, 2022 CO 8, ¶ 52. In contrast, extrinsic acts that suggest a

bad character (and thus a propensity to commit the charged

offense) are admissible only as allowed by CRE 404(b) and after

4
applying the analysis set forth in People v. Spoto, 795 P.2d 1314,

1318 (Colo. 1990). Rojas, ¶ 52.

¶ 14 For other act evidence to be admissible under CRE 404(b), the

district court “must first determine, by a preponderance of the

evidence, that the other act happened and that the defendant

committed the act.” People v. Vasquez, 2022 COA 100, ¶ 74 (citing

People v. Garner, 806 P.2d 366, 373 (Colo. 1991)). The court’s

findings may be implicit. Id. The court must then find that (1) the

evidence relates to a material fact; (2) the evidence is logically

relevant to that material fact, meaning it tends to make the

existence of the material fact more or less probable; (3) the logical

relevance of the evidence is independent of the prohibited inference

that the defendant has a bad character and committed the crime

charged because he acted in conformity with his bad character; and

(4) the probative value of the evidence is not substantially

outweighed by the danger of unfair prejudice. Spoto, 795 P.2d at

1318. And finally, if the other act evidence is admitted, “the court

must also, upon request, contemporaneously instruct the jurors of

the limited purpose for which the evidence may be considered.”

Rojas, ¶ 27 (citing CRE 105).

5
¶ 15 A district court has broad discretion to decide whether to

admit other act evidence. Perez v. People, 2015 CO 45, ¶ 22. We

will not disturb the court’s decision absent a showing that it was

manifestly arbitrary, unreasonable, or unfair, or was based on a

misapprehension or misapplication of the law. Gonzales v. People,

2020 CO 71, ¶ 25. “In deference to the trial court’s discretion, we

must assume the maximum probative value and the minimum

unfair prejudice to be given the evidence.” Yusem v. People,

210 P.3d 458, 467 (Colo. 2009).

¶ 16 We review preserved errors in the admission of evidence under

the harmless error standard. People v. Ambrose, 2021 COA 62,

¶ 53; see also Yusem, 210 P.3d at 469 n.16 (“Erroneous admission

of CRE 404(b) evidence is not error of constitutional dimension.”). A

nonconstitutional error is harmless unless there is a reasonable

probability that it contributed to the defendant’s conviction by

substantially influencing the verdict or impairing the fairness of the

trial. People v. Harris, 2015 COA 53, ¶ 26 (citing People v. Casias,

2012 COA 117, ¶ 62).

¶ 17 We review unpreserved errors for plain error. Hagos v. People,

2012 CO 63, ¶ 14. An error is plain when it is obvious and

6
substantial. Id. An obvious error is one that “contravene[s] a clear

statutory command, a well-settled legal principle, or established

Colorado case law,” People v. Crabtree, 2024 CO 40M, ¶ 42, and

that a judge should be able to avoid without the benefit of an

objection, People v. Conyac, 2014 COA 8M, ¶ 54. “An error is

‘substantial’ enough to warrant reversal if it ‘so undermine[d] the

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

the reliability of the judgment of conviction.’” People v. Perez, 2024

COA 94, ¶ 26 (quoting Cardman v. People, 2019 CO 73, ¶ 19).

B. Additional Background

¶ 18 Before trial, the prosecution filed a notice of intent to

introduce other act evidence under CRE 404(b). The prosecution

intended to present testimony from the owner of a beauty salon that

Toler-Anderson, after accepting a job offer, “stopped working there

after a few days” but “nevertheless continued to demand pay stubs”

for submission to CAE. The salon owner was expected to testify

that, after she refused to create fake pay stubs for Toler-Anderson,

the victim began making them for him. But after Toler-Anderson

ended his relationship with the victim, the victim “started

threatening to expose this fraudulent scheme to [his] case manager

7
at CAE.” The prosecution also sought to introduce the victim’s text

messages threatening to get Toler-Anderson in trouble at CAE and

Toler-Anderson’s statements in a videotaped interview with a

detective describing how the victim was causing problems for him

there. The prosecution argued that this evidence was relevant to

explain one of Toler-Anderson’s potential motives for killing the

victim. Overruling the defense’s objection, the district court found

the evidence admissible under CRE 404(b) and Spoto.

¶ 19 In his opening statement, the prosecutor previewed the other

act evidence, explaining what CAE was and how the victim had

threatened to report Toler-Anderson to his case manager about the

fake pay stubs she had created for him.

¶ 20 But the salon owner, who was scheduled to fly in from another

state to testify on August 4, 2022, did not board her flight. When

the prosecutor informed the court and defense counsel that the

salon owner would not testify, defense counsel renewed his

objection to any reference to CAE, arguing that Toler-Anderson’s

commitment to community corrections was no longer relevant. The

prosecutor responded that he would present other evidence — apart

from the salon owner’s testimony — showing that the victim was

8
threatening to cause problems for Toler-Anderson at CAE. The

court again overruled the defense’s objection.

¶ 21 The prosecution then played for the jury Toler-Anderson’s

videotaped interview, in which he said the victim called CAE and got

him in trouble by leaving “bad messages” claiming he did not have a

job. He admitted that the victim was making his pay stubs but

insisted that he really was working at the salon. Although defense

counsel again renewed the objection to any “mention of CAE,” he

did not request a limiting instruction before the video was played.

¶ 22 The jury next heard testimony about CAE from Toler-

Anderson’s case manager, who explained that he became concerned

about Toler-Anderson’s “pay stub for his job” because it was

missing “a few things . . . that typical W-4 employers have, you

know, your FICA deductions, Medicaid, state, federal withholdings.”

He testified that he called the number Toler-Anderson had provided

for his employer at the beauty salon — which was actually the

victim’s number — and spoke to the victim, who said she would “get

it fixed.” Before the jury heard this testimony, the court read the

following limiting instruction:

9
Ladies and gentlemen, the evidence you’re
about to hear concerning the Community
Alternatives facility, sometimes called CAE, is
being presented only to allow the jury to
consider the plaintiff’s claim of motive in this
case. You may not consider this evidence for
any other reason.

¶ 23 Finally, a detective testified about the victim’s text messages to

Toler-Anderson, including her texts that she had “left [his] case

manager the message” and that he was “going to jail.” Defense

counsel did not request, and the court did not read, a limiting

instruction before the jury heard this evidence.

¶ 24 At the close of evidence, the court repeated its limiting

instruction regarding the CAE evidence. This instruction was also

included in the written instructions provided to the jury for

deliberations.

¶ 25 In closing argument, the prosecutor argued that the victim

had been threatening Toler-Anderson and causing problems for him

at CAE:

You saw those text messages. She was texting
him that she was contacting his Case Manager
at CAE. . . .

She threatened that he would go to jail, and
you heard that that was a possibility if he got

10
word that the defendant wasn’t actually
working, and that his pay stubs were fake.

And when you watch that interview with the
defendant he says that is what was going on.
That [the victim] was making pay stubs for
him. So he knew, he knew she had the goods
on him. He knew she could be the means to
cause him to lose his freedom.

C. Limiting Instruction Concerning CAE

¶ 26 Although Toler-Anderson does not contest on appeal the

admissibility of evidence related to CAE, he contends that the

district court erred by failing to give a contemporaneous limiting

instruction each time the jury heard this evidence. Specifically, the

court read a limiting instruction before the testimony of Toler-

Anderson’s case manager, and again at the close of evidence,

instructing the jury that it could consider evidence “concerning the

Community Alternatives facility, sometimes called CAE,” only with

respect to motive, and not for any other reason. But the court did

not read the limiting instruction before the introduction of (1) Toler-

Anderson’s video interview or (2) his text messages from the victim,

both of which referenced CAE.

¶ 27 Because defense counsel did not ask the court to give a

limiting instruction before the video or text messages were

11
introduced, we review this assertion for plain error. See People v.

Griffin, 224 P.3d 292, 298 (Colo. App. 2009) (“Because [the

defendant] did not request a limiting instruction, we apply the plain

error standard of review.”). We conclude that any error in this

context was not obvious because, “absent a special statutory

requirement, the supreme court has consistently held that trial

courts have no duty to give limiting instructions sua sponte.” Id.

Rather, the onus is on the parties to request a limiting instruction.

See Rojas, ¶ 27 (“If a court determines the evidence is admissible

[under Spoto], the court must also, upon request,

contemporaneously instruct the jurors of the limited purpose for

which the evidence may be considered.” (emphasis added));

CRE 105 (“When evidence which is admissible . . . for one purpose

but not admissible . . . for another purpose is admitted, the court,

upon request, shall restrict the evidence to its proper scope and

instruct the jury accordingly.” (emphasis added)).

¶ 28 We further conclude that the absence of a limiting instruction

before the introduction of the video and text message evidence did

not so undermine the fundamental fairness of the trial itself as to

cast serious doubt on the reliability of the conviction. The limiting

12
instruction given before the case manager’s testimony and, more

importantly, at the close of evidence cured any potential prejudice.

See People v. Cousins, 181 P.3d 365, 373 (Colo. App. 2007) (where

the court’s “closing charge contained a proper limiting

instruction . . . , the failure to give a limiting instruction before [a

witness] testified was harmless”); People v. Marion, 941 P.2d 287,

293-94 (Colo. App. 1996) (holding that the failure to give a limiting

instruction before CRE 404(b) evidence was introduced did not

require reversal because a limiting instruction was included in the

final jury instructions).

¶ 29 We thus conclude that the court’s failure to give a limiting

instruction before the video and text message evidence did not

constitute plain error.

D. Pay Stubs

¶ 30 Toler-Anderson contends that the district court erred by

admitting evidence about his pay stubs because (1) the evidence

presented at trial was insufficient to establish by a preponderance

of the evidence that the pay stubs were forged; (2) the potential for

unfair prejudice substantially outweighed the probative value of the

evidence; and (3) the limiting instruction about evidence concerning

13
CAE did not specifically address the pay stubs. We address each

contention in turn.

1. Preponderance of the Evidence

¶ 31 Toler-Anderson argues that, without the salon owner’s

testimony, the evidence was insufficient to establish by a

preponderance of the evidence that his pay stubs “were forged.”

The People counter that the issue is instead whether the evidence

was sufficient to show that Toler-Anderson “was motivated to kill

[the victim] because he was concerned about the pay[]stubs she

created for him.” We agree with the People.

¶ 32 In his video interview, Toler-Anderson said that the victim

“made [his] pay stubs” from the beauty salon. He explained that he

“really was working there,” but the salon owner was “so busy, she

couldn’t do it, so [the victim] ended up having to do it.” He also

said that the victim had “called up there [to CAE]” to report that he

was lying about having a job in an effort to get him thrown in jail.

¶ 33 In closing argument, the prosecutor reminded the jury of

Toler-Anderson’s admission that the victim was making his pay

stubs. The prosecutor argued that, based on the case manager’s

testimony, there was indeed “a possibility” that Toler-Anderson

14
could have gone to jail if it was discovered that he “wasn’t actually

working, and that his pay stubs were fake.” Accordingly, the

prosecutor argued, Toler-Anderson “knew [the victim] had the goods

on him.”

¶ 34 Contrary to Toler-Anderson’s position, this was not an

argument that Toler-Anderson in fact did not have a job. Rather, it

was an argument that he had a motive to harm the victim because

he believed she was causing trouble for him at CAE over the pay

stubs. The relevant, undisputed facts were that the victim was

creating his pay stubs and that she told him she had contacted CAE

to report him for lying about having a job (even though the case

manager testified that she never actually made such a report).

Whether Toler-Anderson “really was working” at the salon, as he

claimed, was not the point of the prosecutor’s argument.

¶ 35 We are not persuaded otherwise by Toler-Anderson’s focus on

the prosecutor’s statement that Toler-Anderson “knew [the victim]

had the goods on him.” Rather than suggesting that Toler-

Anderson did not in fact have a job, we understand this argument

as indicating that Toler-Anderson knew the victim could get him in

trouble if she chose. Further, because the victim did not have

15
authority to prepare pay stubs for Toler-Anderson’s job at the salon,

CAE could have considered the pay stubs she created as “forged” or

“fake” regardless of whether he actually worked there.

¶ 36 We therefore conclude that the evidence was sufficient to

establish by a preponderance of the evidence that Toler-Anderson

was concerned about the pay stubs the victim created for him and

that this concern was relevant to his motive to harm her.

1. CRE 403

¶ 37 Next, Toler-Anderson argues that the probative value of the

pay stub evidence was substantially outweighed by the danger of

unfair prejudice. See Spoto, 795 P.2d at 1318; CRE 403. He

specifically relies on Yusem, 210 P.3d at 468, to argue that the pay

stub evidence had “negligible” probative value because the victim’s

stalking and harassment of Toler-Anderson and his family already

provided a motive for him to harm her.

¶ 38 Yusem, however, is distinguishable. In that case, the supreme

court held that, where the defendant was charged with felony

menacing for “pulling a gun against the driver of a van who [the

defendant] thought was threatening to run him down,” the district

court erred by admitting “evidence of a prior act where [the

16
defendant], a deputy sheriff, yelled at and caused an apartment

manager to feel intimidated while [the defendant] was off-duty but

wearing his service weapon.” Id. at 460. As relevant here, the court

held that the prosecution “had ample evidence to prove [the

defendant’s] mental state and motive” because the defendant

“testified that he pulled his gun and yelled at the driver of the van

in an attempt to get the van driver to back up.” Id. at 468.

Accordingly, the prior act evidence was “not needed to prove the

listed purposes of state of mind and motive.” Id.

¶ 39 Toler-Anderson’s reliance on Yusem’s statement that “prior act

evidence offers minimal probative value to prove the listed

purposes” when those “purposes . . . could be proved by alternative

methods” is misplaced. Id. Yusem does not stand for the

proposition that evidence of one motive to harm the victim (such as

the victim’s threats to cause trouble for him at CAE) loses probative

value simply because there is also evidence of a separate,

independent motive (her threats to his family). Both motives are

relevant for the jury’s consideration, as Toler-Anderson could have

had multiple reasons for committing the crime.

17
¶ 40 While Toler-Anderson contends that the pay stub evidence was

prejudicial because it may have allowed the jury to infer that he was

willing to lie, we must assume the maximum probative value and

minimum unfair prejudice. Id. at 467. Moreover, the risk of unfair

prejudice was low because the other acts at issue (submitting pay

stubs created by someone other than his employer, and possibly

lying about having a job) were relatively mundane when compared

to the actions with which he was charged (first degree murder). See

People v. Dean, 2012 COA 106, ¶ 46 (probative value of other act

evidence was not substantially outweighed by the danger of unfair

prejudice because, among other reasons, the testimony “conveyed

relatively mundane information when compared with the graphic

evidence otherwise admitted at trial”), aff’d on other grounds, 2016

CO 14.

¶ 41 We thus conclude that the probative value of the pay stub

evidence was not substantially outweighed by the danger of unfair

prejudice.

1. Limiting Instruction Concerning Pay Stubs

¶ 42 Finally, Toler-Anderson argues that the district court erred by

not specifically referencing the pay stubs in its limiting instruction

18
about evidence “concerning . . . CAE.” In the absence of a specific

reference to the pay stubs, he argues, “[t]he jury was never told it

could not use the allegation that Mr. Toler-Anderson forged his

pay[]stubs to make a propensity inference that he likely acted in

accordance with that bad character by murdering [the victim].”

¶ 43 Because defense counsel did not ask the court to specifically

refer to the pay stubs in its limiting instruction, or to give a

separate limiting instruction regarding the pay stubs, we review this

assertion for plain error. See Griffin, 224 P.3d at 298. Any error

here was not obvious because the court’s limiting instruction about

evidence “concerning . . . CAE” (or, as it was phrased in the final

jury instructions, “regarding . . . CAE”) could reasonably have been

understood to encompass evidence about the pay stubs Toler-

Anderson submitted to CAE, including the victim’s threats to get

him in trouble at CAE over problems with the pay stubs.

¶ 44 Accordingly, we discern no reversible error regarding the

admission of other act evidence.

III. Prosecutorial Misconduct

¶ 45 Toler-Anderson contends that the prosecutors committed

misconduct by (1) calling a witness to testify when they reasonably

19
should have known the witness would invoke his Fifth Amendment

right against self-incrimination; (2) denigrating the defense;

(3) encouraging the jury to base its verdict on sympathy for the

victim; (4) misstating the evidence; and (5) expressing personal

opinions. His first two contentions are preserved; the other three

are unpreserved. After setting forth the governing law and standard

of review, we address each contention in turn.

A. Governing Law and Standard of Review

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

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

(Colo. 2010).

¶ 47 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), overruled on other

grounds by, People v. Kennedy, 2025 CO 63. The prosecutor may

also “employ rhetorical devices and engage in oratorical

20
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 their 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.

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

(Colo. 2005).

¶ 48 Next, if we identify misconduct, then we determine whether it

warrants reversal under the applicable standard of review. Wend,

235 P.3d at 1096. We review preserved claims of prosecutorial

misconduct that do not “specifically and directly offend a

constitutional right” for harmless error, and we review unpreserved

claims of prosecutorial misconduct for plain error. People v. Licona-

Ortega, 2022 COA 27, ¶¶ 87-88. To constitute plain error, the

misconduct “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. at ¶ 88 (quoting Weinreich, 98 P.3d at 924).

“Prosecutorial misconduct in closing argument rarely constitutes

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

21
B. Witness’s Invocation of Fifth Amendment Right

¶ 49 Toler-Anderson contends that the prosecutors committed

misconduct by calling as a witness Dorsey — the man Toler-

Anderson drove to the gun store the morning before the victim was

killed — when they reasonably should have known that Dorsey

would invoke his Fifth Amendment right against self-incrimination.

We are not persuaded.

1. Additional Background

¶ 50 The prosecution’s theory was that the gun Dorsey bought on

the morning of the murder was the one Toler-Anderson used to kill

the victim. Although the murder weapon was never recovered, the

shell casings found by the victim’s vehicle matched the ammunition

that Dorsey purchased that morning.

¶ 51 The prosecutors were aware that the Federal Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF) was investigating

Dorsey for gun trafficking and had sought a warrant in 2021. They

also knew that, when Dorsey purchased the gun, he completed a

sworn declaration stating that he was not acquiring the firearm for

another person and that his “State of Residence” was Colorado,

even though he actually lived in Texas. The bottom of the

22
questionnaire warned that falsifying answers was a federal felony

offense. Despite this, the prosecutors did not proactively advise

Dorsey of his Fifth Amendment right against self-incrimination,

inquire whether he intended to invoke that right, or recommend he

consult independent counsel.

¶ 52 At trial, Dorsey took the stand, testified briefly that an

unknown woman had driven him to the gun store, and then

invoked his Fifth Amendment right against self-incrimination. The

district court dismissed the jury, appointed counsel to advise

Dorsey, and asked the prosecutor if he had known that Dorsey was

going to invoke the Fifth Amendment. The prosecutor said he “had

no reason to believe that” Dorsey would invoke the right. He said

that he asked Dorsey “if he had any questions or concerns” about

testifying and that “it never came up.”

¶ 53 Defense counsel moved for a mistrial, arguing that — given the

ATF investigation and the prosecution’s theory that Dorsey

procured the murder weapon for Toler-Anderson — the prosecutors

knew they were placing Dorsey in criminal jeopardy by calling him

to the stand and should have anticipated he would invoke his Fifth

Amendment right. The court deferred ruling until Dorsey could

23
consult with counsel and the prosecution could decide whether to

offer him immunity.

¶ 54 The next morning, the prosecutor confirmed that Dorsey had

not changed his mind after consulting with counsel and that the

prosecution would not offer him immunity. Before the court

released Dorsey, both parties were permitted to question him. In

response to their questions, Dorsey said that the prosecutors never

advised him that his testimony could have “criminal implications”

or suggested he consult an attorney before agreeing to testify. He

also confirmed that he never told the prosecutors he planned to

invoke his Fifth Amendment right.

¶ 55 Defense counsel renewed his request for a mistrial, which the

district court denied. The court then offered to give a curative

instruction, but defense counsel said the instruction was not

“necessary . . . right now.” At the close of evidence, the court gave

the following instruction regarding Dorsey’s testimony:

A witness, Mr. Dorsey, invoked his rights
under the 5th Amendment of the U.S.
Constitution not to testify. Because his
testimony could not be completed, the jury
must disregard any testimony provided by
Mr. Dorsey. Every person has the right to
invoke their rights under the 5th Amendment

24
not to testify. The jury must not draw any
negative inferences against the defendant in
this case based on a witness’s decision not to
testify.

1. Discussion

¶ 56 Generally, the prosecution may not call a witness to testify

when it knows the witness will invoke their right to remain silent.

People v. Newton, 940 P.2d 1065, 1067 (Colo. App. 1996)

(Newton I), aff’d in part, 966 P.2d 563 (Colo. 1998) (Newton II),

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

“The rationale for the rule is that, because of the high courtroom

drama and odium surrounding a claim of privilege, questioning of a

witness asserting [a Fifth Amendment protection against self-

incrimination] before the jury has the effect of prejudicing the

accused by creating an unfair inference of guilt.” Newton I,

940 P.2d at 1067.

¶ 57 To evaluate the harm associated with improperly calling a

witness who invokes the Fifth Amendment before the jury, we

consider the totality of the circumstances. Newton II, 966 P.2d at

570. This analysis includes considering (1) the prosecution’s intent

in calling the witness; (2) the number of questions the prosecutor

25
asked the witness; (3) the witness’s importance to the prosecution’s

case; (4) whether the prosecutor draws any inference in closing

argument from the witness’s refusal to answer the question; and

(5) whether the court gave a curative instruction. Id.

¶ 58 Critically, Toler-Anderson does not claim that the prosecutors

knew Dorsey would invoke his Fifth Amendment right. Rather, he

argues that, given Dorsey’s potential criminal liability, the

prosecutors (1) had “reason to believe” Dorsey would invoke his

right; and (2) committed misconduct by calling Dorsey without

proactively advising him of his Fifth Amendment right, directly

asking if he planned to invoke the right, or advising him to consult

independent counsel. (Emphasis added.)

¶ 59 For support, Toler-Anderson relies on ABA Criminal Justice

Standard 3-3.4 (4th ed. 2017), which provides that a prosecutor

“should advise a witness who is to be interviewed of his or her

rights against self-incrimination and the right to independent

counsel when the law so requires.” (Emphasis added.) But he does

not argue, and we have found no authority to suggest, that

Colorado law requires this advisement when a prosecutor has

reason to believe that a witness’s testimony may expose the witness

26
to criminal liability. Indeed, as another division of this court has

noted, “No Colorado Supreme Court case has explicitly adopted ABA

Standard [3-3.4] or held that prosecutors have such an obligation.”

People v. Paglione, 2014 COA 54, ¶ 24.

¶ 60 Further, even assuming that the prosecutors erred by calling

Dorsey without asking him if he planned to invoke the Fifth

Amendment or advising him to consult independent counsel, we

conclude that, under the totality of the circumstances, the error

does not require reversal. See Newton II, 966 P.2d at 570. The

prosecutors’ intent was to elicit testimony about Dorsey’s firearm

and ammunition purchases. Dorsey’s testimony was brief before

invoking his Fifth Amendment right. His testimony was not crucial

to the prosecution’s case, as other evidence, including Toler-

Anderson’s cell phone records and the gun store’s records and

surveillance video, established how Dorsey got to the store and

what he purchased. The prosecutors did not mention Dorsey’s

testimony again or attempt to draw any inferences from his

27
invocation of his right against self-incrimination. And finally, the

court gave a curative instruction.1

¶ 61 Accordingly, we discern no reversible error.

C. Denigrating the Defense

¶ 62 During closing argument, defense counsel urged the jury to

question whether the accounts of the two eyewitnesses, Stewart and

Campbell, were “completely made up.”

¶ 63 In rebuttal closing argument, the prosecutor told the jury:

Something [defense counsel] just said really
rings true. Made up stories.

I’m struggling a little bit, because I am trying
to figure out what to say to you. Because the
story [defense counsel] just told you about the
defendant Paris Toler-Anderson isn’t based on
evidence. It is a made up story.

1 Toler-Anderson argues that he was prejudiced by the district

court’s failure to “give the jury any [curative] instructions
immediately following Dorsey’s invocation.” But the court and the
parties did not know, at that point, whether Dorsey would change
his mind after consulting with counsel or whether the prosecution
would offer him immunity. When it became clear that Dorsey
would not testify, defense counsel asked the court not to instruct
the jury about the invocation. Thus, to the extent the court erred
by not instructing the jury before the close of evidence, any error
was invited by defense counsel. See People v. Rediger, 2018 CO 32,
¶ 34 (“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 . . . .”).

28
So I think what we are left with now is
evidence of desperation. You heard it in
[defense counsel’s] voice.

Defense counsel objected, and the court overruled the objection.

¶ 64 Then, after reviewing the evidence supporting a guilty verdict,

the prosecutor said:

We have . . . all the evidence to prove to you
beyond a reasonable doubt that Paris Toler-
Anderson committed Murder in the First
Degree. We presented so much evidence, and
[the police] did such a good job of putting
together this case, that this is where we are.
With a made up story.

Now I don’t want to insult your intelligence any
more. Find him guilty of Murder in the First
Degree.

¶ 65 Toler-Anderson argues that the prosecutor’s statements

impermissibly denigrated the defense. See People v. Collins,

250 P.3d 668, 678 (Colo. App. 2010) (A prosecutor may not “state or

imply that defense counsel has presented the defendant’s case in

bad faith or otherwise make remarks for the purpose of denigrating

defense counsel.”). From our review of the record, however, it

appears that the prosecutor’s remarks were not made to mock or

personally attack defense counsel, but rather to respond to Toler-

Anderson’s theory of the case and defense counsel’s suggestion that

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the eyewitnesses fabricated their stories. See id. (prosecutor’s

rebuttal comment that defendant’s theory of reasonable doubt was

“absurd” did “nothing more than suggest to the jury that

defendant’s theory as to why the jury should find a reasonable

doubt was so unlikely as to strain credibility”); People v. Ramirez,

997 P.2d 1200, 1211 (Colo. App. 1999) (concluding that it was not

improper to characterize a defense argument as “blowing smoke”

when used to assert that the evidence supporting defendant’s

innocence lacked substance, rather than to suggest that opposing

counsel knew the defense was not meritorious), aff’d, 43 P.3d 611

(Colo. 2001).

¶ 66 Although the prosecutor’s reference to defense counsel’s tone

of voice was improper, it was a single reference that was not

repeated. Because this comment was “an isolated incident in an

otherwise proper closing argument,” we are convinced that the error

was harmless. People v. Clemons, 89 P.3d 479, 483 (Colo. App.

2003).

D. Encouraging Verdict Based on Sympathy for the Victim

¶ 67 During closing argument, the prosecutor emphasized the

“horror” and “trauma” experienced by the two eyewitnesses. He

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specifically said that Campbell “could feel the vibrations [of the

bullets] coming through to him” as the victim “was dying on top of

him.” He also noted that, when the victim was shot, “[s]he had only

an instant to realize what her fate was.” Ultimately, he urged the

jury to convict Toler-Anderson:

Hold him accountable, ladies and gentlemen.
Deliver justice for [the victim]. Deliver justice
for the People of Colorado. Find him guilty
beyond a reasonable doubt of Murder in the
First Degree.

¶ 68 Toler-Anderson argues that these comments impermissibly

encouraged the jury to reach a verdict based on sympathy for the

victim. See Conyac, ¶ 147 (“Prosecutors may not pressure jurors by

suggesting that guilty verdicts are necessary to do justice for a

sympathetic victim.”). Specifically, he argues that the references to

the trauma of the eyewitnesses encouraged the jury to disregard the

evidence and “instead base its verdict on emotion” and that the

prosecutor’s comments about the victim’s dying thoughts “were

akin to ‘channeling,’ in which the prosecutor speaks in the first

person as the victim.” See People v. Douglas, 2012 COA 57, ¶ 66 (a

prosecutor may not “induce the jury to determine guilt on the basis

of passion or prejudice” (citation omitted)); People v. Manyik, 2016

31
COA 42, ¶ 27 (“The prosecutor’s technique of speaking to the jury

in the first person as though he were the victim” was misconduct.).

¶ 69 Contrary to Toler-Anderson’s argument, the prosecutor’s

comments were grounded in the evidence. His comment about

Campbell feeling the victim die is a fair inference from Campbell’s

testimony:

The next moment gunshots ring out. To my
knowledge at that moment I’m thinking I’m hit,
she’s hit. The next thing I know her body
slumps over into my lap. I’m yelling,
screaming her name. No response. At that
point I’m thinking I’m hit, but at that point in
time I really don’t care about me being hit,
she’s not responding to me.

¶ 70 The prosecutor’s comment that the victim had only an instant

to realize her fate was not “channeling.” The prosecutor neither

spoke in the first person as the victim nor asked the jurors to put

themselves in the victim’s place. Cf. Manyik, ¶¶ 20-24 (improper

“channeling” occurred when the prosecutor “assumed the identity of

the victim” for “a substantial part of his opening statement”).

¶ 71 Finally, the prosecutor’s remarks about delivering justice for

the victim came only after a recitation of evidence supporting a

guilty verdict. Far from pressuring the jurors to convict out of

32
sympathy for the victim, the prosecutor urged the jurors to decide

the case based on the evidence.

¶ 72 The comments were not improper.

E. Misstating the Evidence

¶ 73 During his interview with the detective, Toler-Anderson

claimed that his cousin was in the car with him during the

shooting. The cousin, however, denied this and testified that he

had been at work that night. The cousin’s supervisor corroborated

this account by testifying that he recalled the cousin working that

night and that he had confirmed his recollection by reviewing the

cousin’s timecard. After this testimony, the prosecution belatedly

disclosed a photocopy of the timecard to the defense. The district

court found no prejudice from the late disclosure because the

defense knew the supervisor would testify that the cousin was at

work and the timecard was not introduced as an exhibit.

¶ 74 During closing argument, the prosecutor referenced the

cousin’s alibi, stating, “We have his time sheets.” Elsewhere in

closing, after discussing Toler-Anderson’s statements and the

eyewitnesses’ accounts, the prosecutor said, “[W]e know who did

this.”

33
¶ 75 Toler-Anderson argues that, by claiming that the prosecution

had the cousin’s timecard and knew the identity of the perpetrator,

the prosecutor improperly suggested that the prosecution had

knowledge of facts beyond the evidence presented at trial. See

People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006) (“[I]t is not

proper for a prosecutor to refer to facts not in evidence . . . . ”);

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (it is

improper for a prosecutor to make “assertions of personal

knowledge”).

¶ 76 Although the prosecutor’s comment about the cousin’s

timecard may not have been perfectly scripted, in context, it

referred to the supervisor’s testimony that he reviewed the cousin’s

timecard, rather than to personal knowledge of facts outside the

record. Similarly, the prosecutor’s comment about knowing “who

did this” was acceptable oratorical embellishment; because it

followed a discussion of the evidence, the jury was unlikely to

understand it as an assertion of secret knowledge.

¶ 77 To the extent either comment was poorly scripted, neither was

so flagrantly or glaringly improper as to constitute plain error. See

Licona-Ortega, ¶¶ 87-88.

34
F. Expressing Personal Opinions

¶ 78 During opening statement, defense counsel highlighted

numerous inconsistencies in the eyewitnesses’ accounts, arguing

that they could not “be trusted.” Specifically, regarding Stewart,

defense counsel noted her shifting descriptions of her vehicle’s

position, her seating location, her vantage point, and the other

occupant in her car. The reason for the inconsistencies, defense

counsel argued, was that the eyewitnesses were “telling false

stories” to conceal “a setup that had gone wrong.”

¶ 79 In closing argument, the prosecutor argued that Stewart’s

emotional response supported the credibility of her testimony.

Specifically, the prosecutor said:

[Y]ou saw the body worn camera how overcome
[Stewart] was by what she had just witnessed.
How she could barely stand up, how she could
barely speak she was crying so much. You
saw how it affected her when she came and
testified on the stand.

¶ 80 Toler-Anderson argues that the prosecutor’s comments were

an improper expression of his personal opinion about Stewart’s

credibility. See Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)

(“[I]t is improper for counsel to express his or her personal belief in

35
the truth or falsity of testimony . . . .”). But read in context, the

prosecutor’s comments were a direct response to defense counsel’s

argument that Stewart was lying. Rather than expressing his

personal opinion, the prosecutor repeatedly drew the jurors’

attention to the evidence by emphasizing what they had seen during

the trial. Because “counsel may . . . draw reasonable inferences

from the evidence as to the credibility of witnesses,” id., the

prosecutor’s comments were not improper.

IV. Cumulative Error

¶ 81 Finally, Toler-Anderson argues that the cumulative effect of

the alleged errors warrants reversal. We disagree.

¶ 82 “The doctrine of cumulative error requires that numerous

errors be committed, not merely alleged.” Conyac, ¶ 152. Under

this doctrine, while an error may be 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.

¶ 83 We have identified only one error in this case. See People v.

Thames, 2019 COA 124, ¶ 69 (“[A] single error is insufficient to

36
reverse under the cumulative error standard.”). Additionally, in our

analysis of several of Toler-Anderson’s arguments, we reasoned that

even if there was any error, that error was not reversible under the

applicable standard of reversal. Cf. People v. Allgier, 2018 COA

122, ¶ 71 (“Whether plain errors can even be considered for

cumulative error purposes has not been resolved in Colorado.”). We

further conclude that even if one or more of these additional issues

represented an error, the errors, viewed together, did not render

Toler-Anderson’s trial unfair or affect the integrity of the factfinding

process. See Howard-Walker, ¶ 24.

V. Disposition

¶ 84 The judgment is affirmed.

JUDGE GROVE and JUDGE SCHOCK concur.

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