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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Hunnicutt

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1307

• Precedential Status: Non-Precedential

• Opinion

• Authorities (39)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.6K)

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Combined Opinion

23CA1307 Peo v Hunnicutt 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1307
Jefferson County District Court No. 21CR1646
Honorable Lily W. Oeffler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jerald Blaine Hunnicutt,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE WELLING
Tow and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 26, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jerald Blaine Hunnicutt, appeals his judgment of

conviction for second degree assault and false imprisonment. We

affirm.

I. Background

¶2 In June 2021, Hunnicutt and his wife, M.H., lived together

with their two children. At the time, M.H. was pregnant with their

third child. One evening, M.H. called 911 to report that Hunnicutt

had tried to kill her by strangling her with a cord.

¶3 Police arrived and talked to Hunnicutt, who reported that he

and M.H. had gotten into an argument about an affair. He said that

they had begun “[t]ussling” and that he had tried to restrain M.H.

so that she would leave him alone and not hurt him. He said that

he had tried to restrain M.H. by tying her up because she was

trying to hit him.

¶4 Separately, M.H. told police that she had confronted

Hunnicutt after she caught him cheating on her. After the

argument turned physical, M.H. tried to escape to a neighbor’s

house. But Hunnicutt had blocked the doorway, strangled her with

his hands and arms, and then tied her up with a shoelace and tried

1
to tie her up with plastic wrap. Eventually, M.H. was able to escape

to the neighbor’s house.

¶5 Hunnicutt denied putting his hands around M.H.’s neck,

instead repeating that he had only restrained M.H. to protect

himself. He said that she had grabbed a machete, but he was able

to get it away from her. He denied using plastic wrap but admitted

to tying her hands behind her with shoelaces. M.H. had marks on

one wrist and her neck.

¶6 M.H. was taken to a hospital, where a forensic nurse

examiner, Lorna Leader, evaluated her. M.H. told Leader that

Hunnicutt had “choked” her, pushed her, hit her with a Swiffer

handle, grabbed a knife while pulling her hair, tied her hands

behind her back with shoelaces, and stuffed a sock down her

throat.

¶7 The People charged Hunnicutt with attempted first degree

murder, second degree assault (bodily injury with deadly weapon),

second degree assault (restrict breathing), and false imprisonment.

¶8 At trial, M.H. recanted, asserting that she had attacked

Hunnicutt. She denied making the statements mentioned above to

the police and Leader. Leader testified to the statements M.H. had

2
made to her. The People also called an expert witness who testified

about domestic violence, domestic violence relationships, and

trauma. Hunnicutt testified and claimed that he had acted in self-

defense.

¶9 The jury acquitted Hunnicutt of attempted first degree murder

and second degree assault (bodily injury with deadly weapon). It

convicted him of second degree assault (restrict breathing) and false

imprisonment. The trial court sentenced him to twelve years in the

custody of the Department of Corrections for the second degree

assault and a concurrent jail sentence of 364 days for the

misdemeanor false imprisonment conviction.

II. Issues on Appeal

¶ 10 Hunnicutt raises four arguments on appeal. He contends that

the (1) the trial court erred when it denied his Batson v. Kentucky,

476 U.S. 79, 89 (1986), challenge to the prosecutor’s exercise of a

peremptory strike; (2) the trial court erred when it admitted expert

testimony about typical domestic violence offender behavior, in

violation of CRE 702 and CRE 404; (3) the trial court erred by

admitting M.H.’s statements to Leader; and (4) the prosecutor

committed three instances of reversible misconduct during

3
Hunnicutt’s trial. Hunnicutt also contends that the cumulative

effect of these errors requires reversal. We consider each

contention in turn below.

A. Batson Challenge

¶ 11 First, Hunnicutt contends that the trial court erred when it

denied his Batson challenge to a potential juror. We disagree.

1. Additional Facts

¶ 12 While conducting voir dire, one of the prosecutors and

Potential Juror A had the following conversation:

[Prosecutor]: So, [Juror A], tell me what you’re
thinking in terms of this concept of he said she
said and your job in determining the credibility
of the testimony of witnesses and the stories
that you hear in the courtroom.

[Juror A]: Well, you know, it’s going to be two
different stories, you know. So — at this point
in time, unless there’s a lot of evidence, how
can you be able to tell who’s telling the truth?

[Prosecutor]: Right. Well, what would you look
for? Why do people lie?

[Juror A]: Get away with — with a crime.

¶ 13 The conversation continued,

[Prosecutor]: [W]hat about someone who didn’t
commit a crime? Why would someone who
didn’t commit the crime lie for someone else?

4
[Juror A]: I don’t know about that. You know,
if — could you repeat that again.

[Prosecutor]: Yeah. Yeah. Sure. Why would
someone who didn’t commit a crime lie for
someone who did commit the crime?

[Juror A]: Oh, okay. Yeah. No. They
shouldn’t.

[Prosecutor]: Yeah of course. I mean we
shouldn’t lie, but there could be reasons for it.

¶ 14 The prosecutor then ended her conversation with Juror A and

turned to a different prospective juror.

¶ 15 The prosecutor exercised her first peremptory challenge to

strike Juror A. In response, defense counsel asked to approach the

bench and, outside the potential jurors’ hearing, made a Batson

challenge, noting that Hunnicutt is Black and that Juror A “is the

only potential juror in the group of [twenty-five] that has a Spanish

surname.” The trial court then asked the prosecutor to provide a

race-neutral explanation for the strike: “[S]hould the [c]ourt find

that yes, [Juror A] is Hispanic, could you respond, then to the

challenge that this is possibly the only [Hispanic] person here.” The

prosecutor provided the following explanation:

I was not with any notes when I was
questioning the jurors, and so I can’t
remember specifically what area of law he

5
struggled answering me with, whether it was
the mental health state or whether that was
the he said/she said. But there was an
answer in there that I did not believe he was
essentially answering with an understanding
of the concept of the law.

¶ 16 A second prosecutor said that she had taken notes during the

voir dire but had left them outside the courtroom. That prosecutor

explained to the court that she thought Juror A struggled with “the

intent piece.” Before taking a short break to allow the second

prosecutor to retrieve her notes, the court noted that, “just looking

at names” on the prospective juror list, it thought there were other

names that were “traditionally Hispanic or Latino.”

¶ 17 After returning from a break, the court clarified that other

prospective jurors had “Spanish surnames or first names,” but it

still asked the first prosecutor to explain why she struck Juror A.

The prosecutor explained that Juror A wasn’t

able to articulate reasons why someone might
have a motive to lie, from our notes, and the
reason why that’s important is that this is a
case in which we expect the victim to testify
and to recant, and that that recantation is
essentially the dishonesty. And so for jurors to
understand that concept is important to the
People’s case. And that [Juror A] was not
following or able to provide potential reasons

6
why someone might lie, that is the race-
neutral reason for the request to excuse.

¶ 18 In response, defense counsel noted that he was concerned

because Juror A may be Hispanic and that he would “just rest with

our Batson objection.” Defense counsel went on to argue,

I guess it’s possible for counsel to always come
up with . . . a generic reason for a preemptory
[sic] challenge, but obviously Batson is there
for a reason, to safeguard the rights of the
defendant and safeguard the rights of jurors to
sit on cases and participate in the jury service
system.

¶ 19 The trial court then made its ruling. As for the first step of its

Batson analysis, the court explained that it couldn’t accept that

Juror A was the only Hispanic juror in the venire because “if the

[c]ourt is stereotyping surnames, of five other jurors, and we have

some jurors who have first names that are commonly associated

with other ethnicities as such.” The court then moved on to the

second step, assuming that Hunnicutt had met his burden at the

first step, and considered the prosecutor’s race-neutral reason for

striking Juror A. The court confirmed the prosecutor’s reason for

excusal with her, asking if the reason was that Juror A “was unable

7
to come up with any ideas, explanations, possibilities, as to why

someone would lie?” The second prosecutor responded,

Yes, that is my recollection, is that [the other
prosecutor] was asking jurors, why might
somebody lie, why might someone lie either in
court or to protect somebody, and [Juror A’s]
answer, if I recall correctly, was something just
like, oh, I have no idea. So obviously the
People’s concern is that when we’re dealing
with issues of he said/she said and changing
testimony, the ability to perceive witnesses’[]
motives and biases in testifying is important in
a case like this.

¶ 20 The trial court then asked that prosecutor to reconfirm that

the prosecution had struck Juror A because he couldn’t come up

with a theory as to why someone may lie. The second prosecutor

confirmed the court’s understanding, saying that was “how [she]

remember[ed] it” and that she didn’t “want to misstate the record,

but that is what [she] recall[ed].” The court then moved on to step

three and denied Hunnicutt’s Batson challenge, finding this “to be a

race-neutral reason for striking [Juror A].”

1. Legal Principles and Standard of Review

¶ 21 The Equal Protection Clause of the Fourteenth Amendment

forbids a challenge to a potential juror based solely on race.

Batson, 476 U.S. at 89. When a party raises a Batson challenge,

8
the trial court engages in a three-step analysis to assess the claim.

People v. Wilson, 2015 CO 54M, ¶ 10.

¶ 22 First, the opponent of the peremptory strike must allege a

prima facie case showing that the striking party struck the potential

juror based on race. Id. As long as the totality of the relevant

circumstances raises an inference of racial motivation, the objecting

party has satisfied their step-one burden. Batson, 476 U.S. at 96;

accord Valdez v. People, 966 P.2d 587, 589 (Colo. 1998).

¶ 23 At the second step, the burden shifts to the striking party to

provide a race-neutral explanation for striking the potential juror.

Wilson, ¶ 10. All the striking party must do is provide any race-

neutral justification for the strike, regardless of its implausibility or

persuasiveness. People v. Ojeda, 2022 CO 7, ¶ 24. The opponent is

then given the opportunity to rebut the striking party’s explanation.

Wilson, ¶ 10.

¶ 24 At step three, the trial court must decide the ultimate

question: whether the objecting party has established purposeful

discrimination. Ojeda, ¶ 27. In doing so, the trial court must

assess the striking party’s actual subjective intent and the

plausibility of its nondiscriminatory explanation. Id.; Wilson, ¶ 10.

9
¶ 25 “On appeal, each step of the trial court’s Batson analysis is

subject to a separate standard of review.” Ojeda, ¶ 30 (quoting

People v. Rodriguez, 2015 CO 55, ¶ 13). Step one, implicating a

question of legal sufficiency, is reviewed de novo. Id. Step two,

inquiring into the facial validity of the proponent’s stated reason for

a strike, is also reviewed de novo. Id. Step three, determining

whether the opponent of a strike has satisfied that party’s burden of

proving purposeful discrimination — an issue of fact — is reviewed

for clear error. Id.

1. Analysis

¶ 26 Hunnicutt argues that the trial court erred in its step-three

conclusion that he hadn’t proved purposeful discrimination. He

contends that the prosecutor committed purposeful discrimination

in violation of equal protection by using her first peremptory strike

to remove Juror A, who appeared to be Hispanic. We aren’t

persuaded and conclude that the court didn’t err by denying

Hunnicutt’s Batson challenge.

¶ 27 Because the trial court “heard the prosecutor’s race-neutral

explanation and ruled on the ultimate issue of purposeful

discrimination,” the question of whether Hunnicutt established a

10
prima facie case at step one is moot.1 Wilson, ¶ 12; see also People

v. Johnson, 2024 CO 35, ¶ 32 (noting that step one was moot

because the trial court continued to step two). Further, step two

isn’t at issue because the prosecutor offered a race-neutral

explanation. Ojeda, ¶ 24.

¶ 28 Therefore, we review for clear error the trial court’s step-three

ruling that Hunnicutt didn’t establish purposeful discrimination.

Wilson, ¶ 10. We defer to the trial court’s ruling so long as the

record reflects that the trial court weighed all the pertinent

circumstances and supports the court’s conclusion as to whether

the objecting party proved purposeful discrimination by a

preponderance of the evidence. People v. Beauvais, 2017 CO 34,

1 The People cite People v. Morales, 2014 COA 129, ¶ 15, to argue

that step one isn’t moot and that we can affirm on the grounds that
Hunnicutt’s Batson challenge failed at step one. We aren’t
persuaded. The division in Morales determined that the first step
wasn’t moot because the trial court ended its analysis at step one.
The trial court in Morales determined that the defendant hadn’t
established a prima facie case of discrimination but still gave the
prosecutor the option to provide a race-neutral reason for the
strike. Id. at ¶ 16. The trial court, however, made clear that such
an explanation wasn’t required, so step one wasn’t moot. Id. The
trial court here offered no such explanation. Instead, it “assum[ed]”
that Hunnicutt had established a prima facie case and asked the
prosecutor for a race-neutral reason for her strike.

11
¶ 33. Where a court doesn’t supply its own race-neutral reasons, a

trial court’s ultimate denial of a Batson challenge can “be taken as

an implicit crediting of the prosecution’s reasons and thus survive

clear error review.” Id. at ¶ 27. “Given this deferential standard,

reversal is only proper under ‘exceptional circumstances.’” Id. at

¶ 22 (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)).

¶ 29 Hunnicutt argues that the prosecutor’s reasons for striking

Juror A were pretextual because they shifted over time and were

refuted by the record. We aren’t persuaded.

¶ 30 First, the prosecutors didn’t offer shifting explanations for the

challenge; rather, they supplied additional details once the second

prosecutor had an opportunity to review her notes. Although both

prosecutors initially struggled to remember what area of the law

Juror A didn’t understand, once the second prosecutor retrieved her

notes, she cemented her explanation for the strike by noting that

Juror A couldn’t “articulate reasons why someone might have a

motive to lie.” We therefore disagree that the record establishes

that the prosecutors’ reasons shifted over time due to any reason

other than the supplementation of the prosecutors’ recollections

through the notes the second prosecutor took during voir dire.

12
Instead, the prosecutors merely used the notes to confirm the

reason for excusal.

¶ 31 Second, we don’t agree that the prosecutor’s race-neutral

explanation — namely, that Juror A couldn’t articulate a reason

why someone may lie — was refuted by the record. When asked

why people lie, Juror A responded that “[p]eople lie to get away with

a crime.” So it’s true that Juror A did initially provide a reason as

to why someone may lie. But the prosecutor then immediately

asked why someone who didn’t commit the crime may lie for

someone else, and instead of providing a reason, Juror A merely

proclaimed that someone shouldn’t lie in that situation. Therefore,

for this particular situation, Juror A didn’t articulate a reason why

someone may lie, which is consistent with the prosecutor’s stated

race-neutral reason for striking him. Any “discrepancy between the

prosecutor’s justification and the record of voir dire . . . reflect[s] a

mistaken recollection rather than purposeful discrimination.”

Wilson, ¶ 11.

¶ 32 Accordingly, the trial court’s acceptance of the prosecutors’

proffered race-neutral reason wasn’t clearly erroneous, and

13
therefore the court didn’t err by denying Hunnicutt’s Batson

challenge. See id. at ¶ 23.

B. Offender Behavior Expert Testimony

¶ 33 Next, Hunnicutt contends that the trial court reversibly erred

when it admitted expert testimony about typical domestic violence

offender behavior. We disagree.

1. Additional Facts

¶ 34 Before trial, the People endorsed Jean McAllister as an expert

witness in domestic violence and domestic violence relationships

and trauma. The prosecution disclosed to the defense a seventeen-

page summary of McAllister’s anticipated testimony. Hunnicutt

then filed a motion to preclude McAllister from testifying, arguing,

among other things, that her anticipated testimony violated

CRE 702 and CRE 404(b). Importantly, Hunnicutt contended that

McAllister’s anticipated testimony amounted to impermissible

offender behavior testimony.

¶ 35 After hearing argument from the parties, the trial court ruled

that McAllister could testify as an expert but limited her testimony

to certain areas consistent with the supreme court’s decision in

People v. Cooper, 2021 CO 69, in which the supreme court

14
considered when generalized expert testimony is helpful to the jury.

The trial court explained that it found “it helpful to look at the

People v. Cooper case” when it was “working [its] way through this

whole idea of what may come out and not come out.” The court

explained that the supreme court in Cooper had said that it was

permissible for an expert to talk about “general background

information about concepts and principles related to domestic

violence.”

¶ 36 Explicitly relying on Cooper, the trial court ruled that it

wouldn’t allow McAllister “to testify as to a profile of a particular

person [who] would engage in criminal activity.” But, like the

supreme court in Cooper, it would allow the expert to share “general

background information about certain concepts and principles here

related to domestic violence.” It then said that it wouldn’t allow her

“to say that people who perpetrate domestic violence oftentimes

have these characteristics, one, two, three, four, five.” But it would

allow “some discussion about the kind of power and control that

may be exercised commonly in domestic violence relationships.”

¶ 37 The court also ruled that McAllister couldn’t testify about

strangulation or brain chemistry because she didn’t have the

15
appropriate expertise. In conclusion, the trial court again cited

Cooper and ruled that McAllister could testify to “the general

dynamics with regard to power and control, the general dynamics of

domestic violence.”

¶ 38 On the first day of trial, the trial court again addressed

McAllister’s testimony. It reiterated that it wouldn’t “allow

[McAllister] to create a typical profile,” and then it went through

each page of McAllister’s proposed testimony summary to rule on

what specifically she could testify to and what she couldn’t. The

court concluded by again citing Cooper, explaining that the

supreme court had allowed generalized expert testimony on

dynamics of domestic violence, so it was similarly allowing such

testimony in this case.

¶ 39 At the beginning of her testimony, McAllister confirmed that

she didn’t know M.H. or Hunnicutt and that she wouldn’t be able to

offer any opinion about what actually happened in this case.

¶ 40 Then, when the prosecution sought to have McAllister

qualified as an expert, defense counsel objected “to her being

certified as an expert and the testimony in all” because it was “an

elaborate attempt to improperly bolster or improperly vouch for

16
[M.H.’s] initial version of events.” The court overruled this

objection. Thereafter, however, defense counsel didn’t object to any

of the prosecutor’s questions or McAllister’s answers.

1. Legal Principles and Standard of Review

¶ 41 Generalized expert testimony is “testimony aimed at educating

the jury about general concepts or principles without attempting to

discuss the particular facts of the case.” Cooper, ¶ 1. A trial court’s

admission of expert testimony is governed by CRE 702, which

allows opinion testimony if the expert’s “scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.” To

determine the admissibility of expert testimony, a trial court must

consider, among other things, whether the testimony would be

helpful to the jury. Cooper, ¶ 47.

¶ 42 Further, “[e]vidence of a person’s character or a trait of that

person’s character is not admissible for the purpose of proving that

the person acted in conformity therewith on a particular occasion.”

CRE 404(a). But even though evidence of any other crime, wrong,

or act isn’t admissible to prove someone acted in conformity with

17
that character, it may be admissible for another purpose. CRE

404(b).

¶ 43 “We review a trial court’s admission of expert testimony for an

abuse of discretion and will reverse only when that decision is

manifestly erroneous.” Cooper, ¶ 44 (quoting People v. Rector, 248

P.3d 1196, 1200 (Colo. 2011)). “This is a deferential standard that

reflects the superior opportunity a trial court has to assess both the

competence of an expert witness and whether that witness’s

anticipated opinions would be helpful to the jury.” Id.

1. Analysis

¶ 44 Hunnicutt contends that the trial court abused its discretion

by admitting expert testimony in violation of CRE 702 and

CRE 404. Specifically, he argues that some portions of McAllister’s

testimony constituted impermissible “offender behavior” profile

evidence, were irrelevant and unhelpful to the jury, and encouraged

the jury to convict Hunnicutt based on his presumed character. We

discern no error.

a. Preservation

¶ 45 The parties dispute whether the challenge Hunnicutt advances

on appeal is preserved. Hunnicutt contends that his pretrial

18
objection preserved all his appellate challenges to McAllister’s

testimony. The People, on the other hand, contend that Hunnicutt

preserved his CRE 702 argument but didn’t preserve his

CRE 404(a) argument. We agree and disagree in part with the

parties. See People v. Carter, 2021 COA 29, ¶ 13 (explaining that

an appellate court isn’t bound by a party’s position or concession

regarding preservation).

¶ 46 By filing a pretrial motion seeking to prohibit McAllister from

offering any testimony at trial, Hunnicutt preserved his contention

that the trial court abused its discretion by entering the pretrial

order partially limiting and partially allowing McAllister’s testimony.

Thus, whether the court’s pretrial order constituted an abuse of

discretion is preserved for our review. The same can’t be said for

any argument based on McAllister’s testimony beyond the scope

specified in the pretrial order. This is because Hunnicutt never

objected to McAllister’s trial testimony. See People v. Dinapoli, 2015

COA 9, ¶ 24 (“[W]hen an opponent acts contrary to a pretrial order,

a party must contemporaneously object to preserve an appellate

argument that the court should have prohibited the action.”). Thus,

if we conclude that the court didn’t abuse its discretion in its

19
pretrial order, then we review for plain error any challenge to

McAllister’s testimony that was actually offered at trial as exceeding

the scope of an otherwise appropriate pretrial order.

¶ 47 Based on this, we divide our analysis into two

parts — (1) whether the trial court erred by making its pretrial

ruling, which we review as preserved; and (2) whether McAllister’s

testimony during trial exceeded the scope of the pretrial ruling,

which we review for plain error.

b. Pretrial Ruling

¶ 48 First, we address whether the trial court’s pretrial ruling

violated CRE 702 by permitting McAllister to offer improper expert

testimony at trial. We aren’t persuaded that it did. The court’s

pretrial ruling carefully tracked what the supreme court had ruled

in Cooper was permissible testimony by a generalized expert in the

dynamics of domestic violence. See also People v. Coons, 2021 CO

70, ¶ 1 (a companion case to Cooper also involving a generalized

expert offering testimony regarding domestic violence). In Cooper

and Coons, the supreme court upheld the trial court’s decision to

permit generalized expert testimony about the power and control

dynamic between a victim and offender in the context of domestic

20
violence. Cooper, ¶ 4; Coons, ¶¶ 6-7. In this case, the trial court

carefully tailored its pretrial order to allow McAllister to testify to

the same dynamic.

¶ 49 In making its ruling, the trial court was “mindful of the

purposes for which [McAllister’s] testimony” was offered. Cooper,

¶ 3. It ruled that McAllister wouldn’t be permitted to testify at trial

“to a profile of a particular person [who] would engage in criminal

activity.” But it ruled that McAllister would be permitted to testify

to the general dynamics of domestic violence, including behaviors

and personalities that fall into the power and control dynamic,

because that would be helpful to the jury, like the testimony at

issue in Cooper and Coons. So, because the trial court carefully

crafted its pretrial ruling to limit McAllister’s testimony to what was

21
allowed by these two cases, we can’t say that the court’s pretrial

order was an abuse of discretion.2

¶ 50 We also disagree with Hunnicutt’s contention that the trial

court’s ruling permitted testimony in violation of CRE 404. The

trial court ruled that McAllister couldn’t testify regarding a typical

domestic violence offender profile, which would have been close to

impermissible character evidence. And as a generalized

expert — meaning she didn’t know anything about the facts of the

case or Hunnicutt — she couldn’t (and didn’t) opine that Hunnicutt

had any particular traits. See Coons, ¶ 56 (explaining that there

was no basis to believe the jury drew improper inferences from the

expert’s testimony when the expert had no knowledge of the facts of

the case). Therefore, the trial court didn’t abuse its discretion

2 To the extent that Hunnicutt is arguing that the court’s ruling

exceeded what was authorized in People v. Cooper, 2021 CO 69, and
People v. Coons, 2021 CO 70, we disagree. Hunnicutt hasn’t
explained how the ruling exceeded the scope of what the court
determined was permissible in these two cases. And we aren’t
persuaded that the trial court’s ruling exceeded the permissible
scope because the trial court allowed generalized expert testimony
about power and control dynamics in domestic violence
relationships, like the supreme court did in Cooper and Coons. See
Cooper, ¶ 65; Coons, ¶ 49.

22
under CRE 404 by permitting McAllister to testify as a generalized

expert at trial, subject to the limits it provided in its pretrial order.3

c. McAllister’s Testimony

¶ 51 Second, to the extent Hunnicutt argues that McAllister’s

testimony exceeded the scope of the trial court’s pretrial ruling, this

argument also fails.

¶ 52 As noted before, Hunnicutt didn’t contemporaneously object to

any of McAllister’s trial testimony, so we review this contention for

plain error. Hagos v. People, 2012 CO 63, ¶ 14.

¶ 53 On appeal, Hunnicutt points to four instances where

McAllister’s trial testimony was objectionable. First, the prosecutor

asked McAllister, “[W]hat kinds of behaviors might we see in

someone who is seeking to establish power and control over their

partner?” McAllister answered,

You may see verbal abuse, you may see
intimidation, in some cases you see threats.
You may see psychological abuse or crazy-
making kind of behavior. You often see
attempts to economically control a victim. You
may see threats against children, pets, other
people victims care about. Sometimes you see

3 Although the parties dispute whether this contention is preserved,

because we conclude that the trial court didn’t err by admitting the
expert testimony, we decline to address this disagreement.

23
victim blaming where the offender tells the
victim that they’re being harmed because the
victim has done something wrong. You may
see isolation of the victim, where slowly people
limit their contact with other people in their
life who could support them or help them get
away. And you may see — and sometimes
people use a victim’s dependance on the
offender, either economically or for other
reasons, to control a victim. And many times
you see this happening over time, and in the
research literature, the most dangerous
relationships are identified as coercive,
controlling relationships, and those are
relationships where this kind of pattern of
control is used.

¶ 54 Second, the prosecutor asked, “[W]hat does the offender’s

behavior typically look like with respect to blame and accountability

issues in that relationship?” McAllister answered,

[M]ost offenders do what we call externalized
placement, that is, they don’t take
responsibility for their own actions, but they
blame others if they have problems in their life.
So if they lose jobs regularly, they blame it on
their terrible bosses, rather than that there
might be a pattern of behavior that keeps
getting them fired. In their relationship, they
tend to blame any problems on their partner,
rather than looking at what they can do to
help improve the relationship or whether
they’re contributing to the problems in the
relationship.

24
¶ 55 Third, Hunnicutt points out McAllister’s testimony that

“offenders often criticize and put down their victims,” they “typically

escalate their behavior dramatically when they think someone is

trying to leave them,” and they “often tell victims they’re bad

parents, they threaten to take the kids.”

¶ 56 Fourth, McAllister testified that “[j]ealousy is a component of

most often offender behavior . . . . It is one of the things that can

escalate the level of violence . . . because it is one of the things

where offenders feel like they have lost control of the person that

they feel like they should be able to control.”

¶ 57 “We reverse under plain error review only if the error ‘so

undermined the fundamental fairness of the trial itself so as to cast

serious doubt on the reliability of the judgment of conviction.’” Id.

(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)). “Plain

error addresses error that is both ‘obvious and substantial.’” Miller,

113 P.3d at 750 (quoting People v. Stewart, 55 P.3d 107, 119 (Colo.

2002)). In addition, “[p]lain error assumes that the [trial] court

should have intervened sua sponte because the error was so

obvious.” People v. Petschow, 119 P.3d 495, 505 (Colo. App. 2004).

25
¶ 58 We aren’t convinced that any of McAllister’s testimony so

obviously violated the court’s pretrial ruling such that the court

should have intervened sua sponte. Scott v. People, 2017 CO 16,

¶ 16 (“To qualify as plain error, an error must generally be so

obvious that a trial judge should be able to avoid it without the

benefit of an objection.”). As noted above, the trial court’s pretrial

ruling carefully tracked the supreme court’s decision in Cooper.

And the four instances of potentially problematic testimony that

Hunnicutt cites didn’t obviously exceed the scope of the testimony

about power and control dynamics within domestic violence

relationships that the supreme court permitted in Cooper. See

Cooper, ¶¶ 63-65 (allowing testimony about a “Power and Control

Wheel” that included acts such as “intimidating the victim, using

children, and controlling finances” because the theme of the

expert’s testimony was “the dynamic of power and control as the

defining characteristic of an abusive intimate relationship”).

¶ 59 Further, we aren’t persuaded that any error, even if obvious,

substantially undermines our confidence in the verdict. See Hagos,

¶ 14. McAllister’s testimony spanned almost forty transcript pages

and focused largely on a domestic violence victim’s behavior and

26
response, consistent with the trial court’s limitations on McAllister’s

testimony specified in its pretrial ruling. And because McAllister

wasn’t familiar with the facts of the case, she didn’t testify that

Hunnicutt had certain offender qualities. Also, as noted below, at

least five prosecution witnesses corroborated M.H.’s initial report

that Hunnicutt had assaulted her. So given the weight of the

evidence against Hunnicutt, any error didn’t so undermine the

fundamental fairness of Hunnicutt’s trial as to cast serious doubt

on his conviction. See id.

¶ 60 Hunnicutt argues that Salcedo v. People, 999 P.2d 833 (Colo.

2000), requires a different result. In Salcedo, the defendant was

charged with unlawful possession and intent to distribute a

controlled substance after he had been caught with a suitcase of

cocaine at the airport. Id. at 834-35. The primary issue at trial was

whether the defendant knew the suitcase he was carrying contained

drugs. Id. at 841. At trial, an expert opined that the defendant

must have known that the suitcase contained cocaine because the

defendant fit the profile of a drug courier. Id. at 836. The supreme

court explained that the trial court abused its discretion by allowing

an expert to testify about a typical drug courier profile. Id. at 841.

27
Hunnicutt argues that the supreme court’s concerns in Salcedo

extend beyond the drug courier context to domestic violence

dynamics.

¶ 61 Salcedo is distinguishable. The expert in Salcedo wasn’t a

generalized expert; instead, he testified as both a fact witness and

expert witness. Id. at 840. Based on this, the supreme court

observed that this “intermingled” testimony “posed a risk of

misleading the jury to believe that Salcedo exhibited all of the

behaviors and characteristics in [the expert’s] profile.” Id. Here,

however, because McAllister testified as a generalized expert, with

no knowledge regarding the facts of the case, there wasn’t a similar

risk that her expert testimony would intermingle with factual

testimony and mislead the jury.

¶ 62 Further, we disagree with Hunnicutt’s argument that the

concerns in Salcedo should extend beyond a drug courier profile.

The supreme court explained that “[d]rug courier profiles are broad

in their sweep and sometimes appear dependent on seemingly

contradictory behaviors and characteristics.” Id. at 839. Also, the

supreme court noted that drug courier profile behaviors tend to be

commonplace among law abiding citizens, who also “frequently

28
wear crosses, do not wear wristwatches, travel in blue jeans, and

decide not to bring books, magazines, or carry-on luggage on

planes.” Id. Because the characteristics of domestic violence

abusers are neither contradictory nor commonplace, we don’t share

the same concerns about generalized domestic violence expert

testimony that the supreme court expressed in Salcedo regarding

expert testimony concerning drug couriers.

¶ 63 Accordingly, we conclude that the trial court didn’t abuse its

discretion by admitting McAllister’s generalized expert testimony

regarding domestic violence relationships and dynamics.

C. M.H.’s Statements

¶ 64 Hunnicutt’s next argument involves two separate contentions:

that the trial court erred by (1) admitting a document containing

the recorded recollection of M.H.’s statements to Leader marked as

Exhibit 28 at trial; and (2) failing to guard against the use of the

exhibit during jury deliberations, thus prejudicing Hunnicutt.

While we agree that it was error for the trial court to admit the

exhibit, we conclude that the error was harmless. Because of our

conclusion, we don’t reach Hunnicutt’s second contention.

29
1. Additional Facts

¶ 65 After M.H. called 911, she was taken to a hospital, where

Leader evaluated her. During that examination, Leader took

handwritten notes documenting M.H.’s statements to her verbatim.

Before trial, Hunnicutt filed a motion to exclude the notes, arguing

that they were all testimonial and that not all of them fit into the

medical diagnosis hearsay exception under CRE 803(4). During a

pretrial hearing, the trial court ruled that a portion of the notes

could come in at trial, finding that some — but not all — of the

statements in the notes fit within the medical diagnosis exception.

¶ 66 Leader testified at trial and the prosecution requested that her

notes be admitted as an exhibit. Hunnicutt objected, explaining

that

we think if the notes come into evidence as an
exhibit, it’s going to be too persuasive to the
jury, as far as instead of the jury trying to
recall the statements of [M.H.], both from her
testimony, or the various statements of hers
that were allowed in as various hearsay
exceptions, the jury will then just rely on
the — Ms. Leader’s notes as the primary
source of what [M.H.’s] claims were back in
June 2021.

30
¶ 67 The prosecutor responded, “[S]o this document is really no

different than a body-worn camera being admitted, where the jury

can go back and review exactly what [M.H.] said. This document is

admissible, it is impeachment evidence, it comes in under [CRE]

611 [sic], it is a hearsay exception for medical treatment.”

¶ 68 The trial court overruled Hunnicutt’s objection. It admitted

seven pages of Leader’s handwritten notes — including the pages

that recorded verbatim what M.H. told Leader — into evidence as

Exhibit 28. It also allowed Leader to read her notes aloud to the

jury. Ultimately, because the trial court admitted the physical copy

of her notes as Exhibit 28, the jury had access to the notes during

its deliberations.

1. Legal Principles and Standard of Review

¶ 69 We review evidentiary rulings for an abuse of discretion.

People v. Miller, 2024 COA 66, ¶ 40. If we conclude that the court

erred, we review preserved nonconstitutional trial errors for

harmless error. Hagos, ¶ 12. “[W]e reverse if the error

‘substantially influenced the verdict or affected the fairness of the

trial proceedings.’” Id. (quoting Tevlin v. People, 715 P.2d 338, 342

(Colo. 1986)). When we assess the harmlessness of admitting

31
evidence, “we consider a number of factors, including the

importance of the evidence to the prosecution’s case; whether the

proffered evidence was cumulative; the presence of other evidence

corroborating or contradicting the point for which the evidence was

offered; and the overall strength of the state’s case.” People v.

Faussett, 2016 COA 94M, ¶ 54 (citations omitted).

¶ 70 CRE 802 generally provides that hearsay isn’t admissible. But

two exceptions to this rule are relevant here. CRE 803(4) allows the

admission of hearsay statements “made for purposes of medical

diagnosis or treatment and describing medical history, or past or

present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.” And CRE 803(5)

permits the admission of “[a] past recollection recorded” if the

declarant “(A) can identify the memorandum or record,

(B) adequately recalls the making of it at or near the time of the

event, either as recorded by the witness or by another, and (C) can

testify to its accuracy.” But CRE 803(5) further provides that “[t]he

memorandum or record may be read into evidence but may not

32
itself be received unless offered by an adverse party.” (Emphasis

added.)

1. Analysis

¶ 71 Hunnicutt contends that the trial court erred by admitting the

writing containing the recorded recollection of M.H.’s statements to

Leader into evidence because, under CRE 803(5), the record —

Leader’s notes — may not be admitted into evidence unless offered

by an adverse party. We agree that the court erred.

a. Preservation

¶ 72 The parties disagree whether Hunnicutt preserved this issue.

“Although we do not require ‘“talismanic language” to preserve

particular arguments for appeal,’ a party must present the trial

court with ‘an adequate opportunity to make findings of fact and

conclusions of law’ on the issue.” Martinez v. People, 2015 CO 16,

¶ 14 (citations omitted). We conclude that Hunnicutt’s objection

was sufficient to preserve this issue.

¶ 73 Hunnicutt objected to the prosecution’s request to admit

Leader’s notes as an exhibit. The objection was sufficient to put the

trial court on notice that Hunnicutt objected to the admission of the

physical notes, and not just their contents. Defense counsel said

33
he was concerned that, if the notes were admitted, the jury would

rely on them “instead of trying to recall the statements of [M.H.].”

Therefore, Hunnicutt provided the court with a sufficient

opportunity to rule on his objection to the admission of the notes,

and not just to their contents being read to the jury. This issue,

therefore, was preserved.

b. Whether the Court Erred

¶ 74 The People argue that, because M.H.’s statements to Leader

satisfied CRE 803(4), whether they also satisfied CRE 803(5) doesn’t

matter. We disagree.

¶ 75 The People cite Kelly v. Haralampopoulos, 2014 CO 46, ¶ 43

n.9, to support their argument that, because the notes were

properly admitted under CRE 803(4), it is immaterial whether they

were also admissible under CRE 803(5). But in Kelly, the trial court

had two rationales for admitting the hearsay evidence —

CRE 803(4) and CRE 807. Id. So once the supreme court

determined that the exhibit was properly admitted under one

hearsay exception, it didn’t need to consider whether the trial court

had properly admitted it under the other.

34
¶ 76 Exhibit 28 poses a different evidentiary challenge. In contrast

to the evidence at issue in Kelly, Exhibit 28 contains two levels of

hearsay — the statements in the document and the document

itself — and each level of hearsay must satisfy its own exception to

be properly admitted. See CRE 805 (“Hearsay included within

hearsay is not excluded under the hearsay rule if each part of the

combined statements conforms with an exception to the hearsay

rule provided in these rules.”).

¶ 77 The first level of hearsay is M.H.’s statements to Leader.

These statements are governed by CRE 803(4). Neither party

contends otherwise. So the court properly permitted Leader to read

the notes to the jury under this hearsay exception.

¶ 78 The second level of hearsay is the physical document

containing Leader’s handwritten notes of M.H.’s statements to her,

Exhibit 28. Therefore, whether Exhibit 28 was admissible as a

physical document raises separate issues. Put differently,

CRE 803(4) allowed Leader to read her notes to the jury, but it

didn’t allow the trial court to admit Exhibit 28 as evidence. The

trial court needed another hearsay exception for that.

35
¶ 79 Exhibit 28 was a past recollection that was recorded verbatim

at the time Leader spoke with M.H. Leader also confirmed that the

document was a “fair and accurate representation of [M.H.’s]

statement to [her].” Therefore, Exhibit 28 satisfied the threshold

requirements of CRE 803(5). But it’s also subject to the limits of

CRE 803(5). That is, the trial court could only have admitted it if

Hunnicutt, and not the prosecution, had offered it into evidence.

Because he didn’t, the trial court erred by admitting Exhibit 28.

c. Harmlessness

¶ 80 Because Hunnicutt preserved his objection to the admission of

Exhibit 28, we review for harmless error. Hagos, ¶ 12. We

conclude that the error was harmless for two reasons.

¶ 81 First, M.H.’s statements to Leader weren’t the only evidence

the jury heard regarding M.H.’s original accusations against

Hunnicutt. The jury also heard her 911 call in which she said that

Hunnicutt had assaulted her. Moreover, a neighbor testified that

he saw M.H. running across the street “look[ing] terrified” and

saying “he’s trying to kill me, he’s trying to beat me.” In addition,

another neighbor, one responding deputy, and an investigator with

the sheriff’s office all spoke to M.H. on the evening of the incident

36
and testified to what she told them, including that Hunnicutt had

assaulted her. So Leader’s notes weren’t the only evidence

corroborating M.H.’s initial story.

¶ 82 Second, Exhibit 28 was necessarily cumulative of Leader’s own

testimony, at least to some degree. See People v. Caldwell, 43 P.3d

663, 668 (Colo. App. 2001). This is because, during her testimony,

Leader read the entire contents of Exhibit 28 to the jury. And

Hunnicutt doesn’t contend that her reading the exhibit aloud to the

jury was improper. We are, however, cautious about putting too

much weight on this particular aspect of cumulativeness given that

whenever a court errs by admitting a document containing a

recorded recollection over the opposing party’s objection, the

admission of the document is always cumulative of a witness’s

reading of the document.

¶ 83 Still, Hunnicutt contends that the admission of the document

itself — and the jury’s unfettered access to it during deliberations —

brings with it particularly acute prejudice. Indeed, all Hunnicutt’s

arguments as to why it was improper for the trial court to give the

jury unfettered access to Exhibit 28 apply with equal — if not

37
greater — force in service of his contention that the error in

admitting the document wasn’t harmless.

¶ 84 Specifically, Hunnicutt contends that the notes — because

they are a verbatim transcription of M.H.’s description of the

crime — are testimonial and, therefore, their admission is

particularly prejudicial. In support of this contention, Hunnicutt

cites People v. Jefferson, 2017 CO 35; DeBella v. People, 233 P.3d

664 (Colo. 2010); and Frasco v. People, 165 P.3d 701 (Colo. 2007),

in which the supreme court addressed the need for a trial court to

exercise discretionary control over the jury’s access to properly

admitted testimonial exhibits during deliberations. In each of these

cases, the supreme court discussed the potential prejudicial effects

of giving the jury unfettered access to video-recorded interviews of a

child sexual assault victim. See Jefferson, ¶¶ 44-53 (concluding

that it was an abuse of discretion for the court to give the jury

“unfettered access” to a video recording of the child victim’s forensic

interview); DeBella, 233 P.3d at 668-69 (concluding that, given “the

nature of the video and its importance to the resolution of the trial,”

it was reversible error for the trial court to give the jury

“unencumbered access” to the video recording of the child victim’s

38
forensic interview); Frasco, 165 P.3d at 705 (finding no abuse of

discretion in the court permitting the jury to have unfettered access

to a video recording of the child victim’s forensic interview where

“the defendant has alleged nothing about the particulars of the

videotape that would likely render its review during deliberations

unfairly prejudicial”).

¶ 85 We, however, aren’t persuaded that granting the jury access to

Leader’s handwritten notes was incrementally prejudicial in the

same way as having access to a video recording of a child’s forensic

interview in a child sexual assault case. We don’t share the same

concern present in these cases — that the jury would place undue

emphasis on the recording of the child’s statement because it

“effectively puts the witness in [the jury] room during

deliberations” — because the handwritten document containing

M.H.’s statements to Leader didn’t effectively put M.H. in the jury

room like a video recording would have done. Rael v. People, 2017

CO 67, ¶ 22 (citing Jefferson, ¶ 45); see also id. at ¶ 23 (concluding

that the same concerns of undue emphasis from DeBella didn’t

apply to a crime scene video exhibit because the video was “more

like a non-testimonial, tangible exhibit”).

39
¶ 86 Again, Leader had already read the document into evidence, so

the document didn’t contain any new information that the jury

hadn’t heard already. And although it was error for the court to

admit Exhibit 28 into evidence, given the nature of the document —

that it was handwritten notes and not a video or audio recording —

and that it was cumulative of other, properly admitted evidence, we

are persuaded that the error in admitting Exhibit 28 was harmless.

D. Prosecutorial Misconduct

¶ 87 Hunnicutt next contends that his judgment of conviction must

be reversed due to prosecutorial misconduct throughout the trial.

We aren’t persuaded.

1. Legal Principles and Standard of Review

¶ 88 When reviewing claims of prosecutorial misconduct, we engage

in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we determine whether the prosecutor’s challenged

conduct was improper based on the totality of the circumstances

and, second, whether such conduct warrants reversal applying the

appropriate standard of reversal. Id.

¶ 89 If the defendant contemporaneously objected and the error

isn’t of constitutional magnitude, we subject the prosecutor’s

40
misconduct to general harmless error review. Id. at 1097. But if

the defendant failed to contemporaneously object to the

prosecutor’s misconduct — whether the misconduct implicates a

constitutional right or not — we review for plain error. Id.; see

Hagos, ¶ 14. Prosecutorial misconduct constitutes plain error only

if it’s “‘flagrant or glaringly or tremendously improper’ and so

undermine[s] the fundamental fairness of the trial as to cast serious

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

Carian, 2017 COA 106, ¶ 52 (quoting People v. Cevallos-Acosta, 140

P.3d 116, 122 (Colo. App. 2005)).

1. Analysis

¶ 90 Hunnicutt contends that the prosecutor engaged in three

instances of misconduct during the trial. We address each below.

a. Expert Testimony

¶ 91 First, Hunnicutt contends that the prosecutor committed

reversable misconduct when she deliberately elicited inadmissible

and prejudicial expert testimony during her questioning of

McAllister. Specifically, Hunnicutt points to the prosecutor’s

question, “And what kinds of behaviors might we see in someone

who is seeking to establish power and control over their partner?”

41
Hunnicutt also contends that the following question by the

prosecutor constituted misconduct:

I want to talk to you a little bit about some of
the dynamics of domestic violence and typical
victim and offender behaviors within those
relationships. So I think we talked about
control being kind of central to the domestic
violence relationship. In your expertise, what
does the offender’s behavior typically look like
with respect to blame and accountability
issues in that relationship?

¶ 92 Hunnicutt asserts that these questions constituted

prosecutorial misconduct because, by asking the questions, the

prosecutor sought to elicit inadmissible testimony about offender

behavior, despite knowing that doing so would violate the court’s

pretrial ruling on the parameters of McAllister’s testimony. The

People respond that the prosecutor didn’t commit misconduct

through her questioning because her questions to McAllister were

within the scope of the trial court’s pretrial ruling.

¶ 93 As with the challenge to the admissibility of McAllister’s

testimony, the parties disagree whether this issue is preserved.

Hunnicutt contends that his pretrial motion to restrict McAllister’s

testimony and his trial objection to her qualification as an expert

preserved his prosecutorial misconduct claim. It didn’t. After the

42
prosecution tendered McAllister as an expert, Hunnicutt objected to

“her being certified as an expert and the testimony in all.” But he

didn’t object to either of the above questions by the prosecutor, and

we aren’t persuaded by Hunnicutt’s argument that his general

objection to McAllister’s expert testimony extends to objecting to

these particular questions by the prosecutor. His general objection

to McAllister’s testimony as an expert didn’t “draw[] the court’s

attention” to any alleged prosecutorial misconduct (and couldn’t

have, given that he made it long before trial started). People v.

McFee, 2016 COA 97, ¶ 31. Put differently, by objecting to

McAllister as an expert, Hunnicutt wasn’t also objecting to this

issue of prosecutorial misconduct. Moreover, the court didn’t have

an opportunity to rule on his objection as to prosecutorial

misconduct. See People v. Melendez, 102 P.3d 315, 322 (Colo.

2004). Therefore, we review any misconduct by the prosecutor for

plain error.

¶ 94 Turning to the merits of Hunnicutt’s prosecutorial misconduct

contentions, these questions weren’t a clear violation of the trial

court’s pretrial ruling on the scope of McAllister’s testimony. The

trial court ruled that it “wouldn’t allow a profile,” but that McAllister

43
could testify that, “within the concepts of [the] general dynamics,

certain behaviors or personalities . . . may fall into this control or

power dynamic.” We can’t say that these questions obviously or

clearly ran afoul of this ruling. And even if the questions did

amount to misconduct because they violated the court’s pretrial

ruling, they weren’t so “flagrant or glaringly or tremendously

improper” as to call into question the fundamental fairness of the

entire trial. Cevallos-Acosta, 140 P.3d at 122.

¶ 95 Accordingly, the prosecutor didn’t commit reversible

misconduct during her examination of McAllister.

b. Character Evidence

¶ 96 Second, Hunnicutt contends that the prosecutor committed

reversible misconduct when she elicited irrelevant and prejudicial

character evidence during her cross-examination of Hunnicutt.

¶ 97 Hunnicutt testified at trial. During the prosecutor’s cross-

examination of him, she confirmed that he had a prior conviction

involving domestic violence. She also asked him, (1) “[I]s it fair to

say that you’re not a fan of law enforcement?” and (2) “[Y]ou have a

tattoo that says, fuck the feds, on your arm; correct?” Hunnicutt

didn’t object to any of these questions. Hunnicutt now contends

44
that the prosecutor committed misconduct by asking him these

questions.

¶ 98 The parties agree that this issue isn’t preserved. We therefore

review any misconduct for plain error.

¶ 99 We disagree that it was misconduct to ask about his prior

domestic violence conviction because the trial court had ruled

before trial that the prosecutor could ask certain questions about

this prior conviction, including eliciting that it involved domestic

violence. Cf. People v. Garner, 2015 COA 175, ¶ 33 (concluding that

it wasn’t improper for the prosecutor to ask questions in reliance of

a limiting instruction), aff’d, 2019 CO 19. But we agree that it was

misconduct for the prosecutor to ask Hunnicutt about his tattoo

and his views on law enforcement because these questions weren’t

relevant to any material issue in the case. See CRE 401; see also

People v. Fortson, 2018 COA 46M, ¶ 14 (“It is . . . improper for a

prosecutor to purposefully ask a question which he or she knows

will elicit an inadmissible answer.”).

¶ 100 But again, we can’t say that the prosecutor’s questions to

Hunnicutt about his tattoo and his views of law enforcement were

so “flagrant or glaringly or tremendously improper” as to call into

45
question the fundamental fairness of the entire trial. Cevallos-

Acosta, 140 P.3d at 122 (quoting People v. Salyer, 80 P.3d 831, 839

(Colo. App. 2003)). These were only two questions at the end of a

cross-examination that spanned eighteen transcript pages. This

didn’t so undermine Hunnicutt’s credibility to the jury as to affect

the fundamental fairness of the entire trial.

¶ 101 Accordingly, the prosecutor didn’t engage in reversible

misconduct by eliciting irrelevant and prejudicial character

evidence.

c. Opining on Witness Veracity

¶ 102 Last, Hunnicutt contends that the prosecutor committed

reversible misconduct when she opined on witness veracity during

her opening statement and closing argument. The parties agree

that this issue isn’t preserved. We therefore review any misconduct

for plain error.

¶ 103 During the prosecutor’s opening statement, she explained to

the jury that

[i]t’s very possible that [M.H.] takes the stand
and tells you accurately what happened on
June 24th of 2021, just as she did to [Leader],
to the police officers she spoke to, to the 911
dispatcher. It is also entirely possible that

46
[M.H.] takes the stand and gives you an
entirely different version of events. She might
tell you that nothing happened. She might tell
you that something different happened. She
might tell you that it was her fault.

¶ 104 And during her closing argument, the prosecutor reminded the

jury that McAllister had testified that “victims recant, and certainly

M.H. recanted on the stand,” and then she told the jury that M.H.

“recanted her story and she stayed with the defendant.” As for

Hunnicutt, the prosecutor said that “he explained what he could

not deny and denied what he could not explain. He explained all

these pieces of physical evidence that are really indisputable. He

denied everything else. He denied everything that you could not see

because you were not there.”

¶ 105 In her rebuttal closing, the prosecutor said that M.H.’s

“statement in this courtroom, when she swore that oath, this was

not an exercise for her in truth telling” and that M.H. “didn’t tell

you the truth when she came into this courtroom.” She then

concluded by saying that M.H. and Hunnicutt were “honest about

some things and dishonest about some things.”

47
¶ 106 Hunnicutt contends that these comments crossed the line into

impermissible personal opinion on M.H.’s and Hunnicutt’s veracity.

We aren’t persuaded.

¶ 107 Our supreme court has drawn distinctions between a

prosecutor’s use of the word “lie” versus “did not tell you the truth.”

See Domingo-Gomez v. People, 125 P.3d 1043, 1051 (Colo. 2005);

Wilson v. People, 743 P.2d 415, 420-21 (Colo. 1987). Indeed, it’s

“improper for a lawyer to assert his opinion that a witness is lying.

He can argue to the jury that they should not believe a witness, but

he should not call him a liar.” Domingo-Gomez, 125 P.3d at 1050

(quoting State v. Locklear, 241 S.E.2d 65, 70 (N.C. 1978)). But the

prosecutor didn’t say that M.H. or Hunnicutt “lied.” Instead, she

said they were dishonest and “didn’t tell you the truth.” We

therefore “review [these] comments that potentially expose the

prosecutor’s personal opinion on the veracity of witness statements

in the context of the argument to determine whether they

improperly express personal opinion.” Id. at 1051.

¶ 108 This case turned on the credibility of the witnesses, who

provided competing stories. The jurors had to decide whom to

believe. The prosecutor’s comments “argue[d] from reasonable

48
inferences anchored in the facts in evidence about the truthfulness

of a witness’ testimony” because McAllister testified as to why a

domestic violence victim may recant and how trauma can affect

someone’s memory. Id.

¶ 109 Accordingly, while the prosecutor’s language may have veered

close to expressing a personal opinion, reviewing the statements in

context, the statements didn’t cross the line into improper personal

opinion. See id. at 1051-52 (concluding that the prosecutor’s

statements to the jury that the defendant “did not tell you the

truth” and he “was not truthful with you” weren’t improper

expressions of personal opinion because the facts in evidence

supported an inference that the defendant’s testimony was false

(emphasis omitted)).

E. Cumulative Error

¶ 110 Finally, Hunnicutt contends that the cumulative effect of the

errors by the trial court and prosecutor require reversal. We have

determined that two trial errors occurred: (1) the trial court erred by

admitting Exhibit 28 and (2) the prosecutor committed misconduct

by improperly adducing character evidence during her cross-

examination of Hunnicutt. We also assumed that some of the

49
questions to McAllister may have been improper. But these errors,

even when viewed in combination, didn’t substantially prejudice

Hunnicutt’s right to a fair trial. See Howard-Walker v. People, 2019

CO 69, ¶ 26 (holding that “reversal is warranted [for cumulative

error] when numerous errors in the aggregate show the absence of a

fair trial, even if individually the errors were harmless or did not

affect the defendant’s substantial rights”); People v. Martinez, 2020

COA 141, ¶ 89 (concluding that, even though the division identified

two errors, there was no reversible cumulative error because those

errors didn’t substantially prejudice the defendant’s right to a fair

trial).

¶ 111 These two errors, plus the prosecutor’s assumed misconduct,

were discrete errors that didn’t have a compounding effect on the

fairness of the overall trial. The first error was in the context of

M.H.’s statements to Leader alleging that Hunnicutt had assaulted

her. And although the prosecutor’s questions to McAllister inquired

about domestic violence offender behavior, McAllister’s testimony in

response primarily focused on nonviolent traits of domestic violence

abusers. Further, the second error concerned Hunnicutt’s personal

beliefs about law enforcement (rather than, for example, his

50
character for violence). So we conclude that the cumulative effect of

these errors on Hunnicutt’s trial was slight, especially considering

the other evidence the prosecution presented that corroborated

M.H.’s statement to Leader. See People v. Vialpando, 2022 CO 28,

¶ 46 (explaining that, when viewing five errors “in the aggregate and

against the backdrop of other evidence, they did not deprive [the

defendant] of a fair trial”). Accordingly, we conclude that there

wasn’t cumulative error.

III. Disposition

¶ 112 The judgment is affirmed.

JUDGE TOW and JUDGE LIPINSKY concur.

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