Peo v. Braziel

22CA1146 Peo v Braziel 07-25-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1146

Weld County District Court No. 19CR2864

Honorable Julie C. Hoskins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Luke Donovan Braziel,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE FOX

Grove and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 25, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

The Reisch Law Firm, LLC, R. Scott Reisch, Robert LeVeen, Denver, Colorado,

for Defendant-Appellant

1

¶ 1 Defendant, Luke Donovan Braziel, appeals the judgment of

conviction entered on jury verdicts finding him guilty of several

counts of conspiracy to distribute or possess, with intent to

distribute, a controlled substance and of unlawful distribution of a

controlled substance. We conclude that two of Braziel’s convictions

must be merged into a single conspiracy conviction. We otherwise

affirm the judgment.

I. Background

¶ 2 This case arises from a Weld County Drug Task Force (Task

Force) investigation into a drug distribution network that included

Braziel. During the investigation, officers learned of Braziel’s cell

phone number and lawfully obtained a wiretap on his phone line.

They also placed a surveillance camera outside of his residence.

The evidence revealed that Braziel was a distributor in the network

who would receive methamphetamine and heroin from his supplier,

Christopher Neel, that he then sold.

¶ 3 The prosecution charged Braziel with sixteen crimes alongside

ten codefendants based on the wiretap and passive surveillance

evidence. He was charged with fourteen counts of conspiracy to

sell, distribute, or possess with intent to sell or distribute a

2

controlled substance. Six counts were level 1 drug felonies because

they involved quantities of methamphetamine exceeding 112 grams.

See § 18-18-405(2)(a)(I)(B), C.R.S. 2023. Eight counts were level 2

drug felonies because they involved quantities of methamphetamine

or heroin between 7 and 112 grams. See § 18-18-405(2)(b)(I)(B).

Braziel was also charged with two counts of unlawful distribution of

a controlled substance — one level 2 drug felony and one level 3

drug felony based on the quantities distributed. See § 18-18-

405(2)(b)(I)(B), (2)(c)(II). In all, Braziel was charged with six level 1

drug felonies, nine level 2 drug felonies, and one level 3 drug felony.

¶ 4 At trial, Braziel suggested that his proximity to the network

did not equate to guilt. Braziel also argued that the prosecution

failed to prove, beyond a reasonable doubt, that the voice on the

wiretap was his. A jury found Braziel guilty as charged. The court

sentenced Braziel to six consecutive twenty-year sentences for each

level 1 drug felony — amounting to 120 years in the custody of the

Department of Corrections (DOC). Braziel also received eight-year

sentences for the level 2 drug felonies and a four-year sentence for

the level 3 drug felony, all to run concurrently with the level 1 drug

felony sentences.

3

¶ 5 On appeal, Braziel asserts three trial errors that he claims

individually or cumulatively violated his right to a fair trial. He also

seeks a proportionality review of his sentence and claims that two of

his convictions were multiplicitous.

II. Trial Errors

¶ 6 Braziel asserts that three trial errors violated his right to a fair

trial individually or cumulatively. First, Braziel challenges the trial

court’s denial of his motion for a mistrial. Second, he challenges

the trial court’s admission of exhibits under CRE 801(d)(2)(E).

Third, he claims that the prosecutor committed reversible

misconduct. We address each claim in turn.

A. Mistrial

¶ 7 First, Braziel challenges the trial court’s denial of his motion

for a mistrial after the court commented, in front of the jury, that

there was a less desirable way to present certain evidence. Braziel

also claims, for the first time on appeal, that the prejudice resulting

from the former claim of error was compounded by the admission of

an exhibit potentially implicating CRE 404(b).

4

1. Additional Background

¶ 8 Law enforcement obtained judicial approval to wiretap a cell

phone they believed belonged to Braziel, which they referred to as

target telephone three (TT-3) throughout trial. The wiretap recorded

thirty days of calls and text messages that TT-3 made and received.

¶ 9 To prove that TT-3 belonged to Braziel, the prosecution

planned to introduce a bond document from a different case where

Braziel listed the number associated with TT-3 as his phone

number. At a bench conference, the prosecutor explained that he

did not intend to introduce the document “in its entirety” but

planned to use it to establish the defendant’s identity and

connection to TT-3. Defense counsel answered, “If the Court finds

that it’s appropriate to allow that information in, I think the Court

could do it in a way that doesn’t have a date attached to it.” The

trial court concluded that the proposed exhibit was relevant and

admissible to connect TT-3 to Braziel. The prosecutor left the

bench conference under the impression that the information could

come in through testimony or through the bond document but that

if it came in through the document, the exhibit would first need to

be redacted (which the parties had not yet done).

5

¶ 10 Back in the jury’s presence, the prosecutor asked a Task Force

officer whether he was aware of a document containing Braziel’s

name, date of birth, signature, home address, and the relevant

phone number. The officer responded affirmatively. The following

colloquy ensued in the jury’s presence:

DEFENSE COUNSEL: That’s all hearsay.

THE COURT: Do you want the document

admitted?

DEFENSE COUNSEL: I’m objecting that all of

this is hearsay.

THE COURT: I understand the objection, and

while it is, the other way for the information to

come in, as I thought we discussed before the

jurors came in, is something that was less

desirable.

DEFENSE COUNSEL: I think if we’re going to

have these kind of discussions, then we may

need to do a bench conference here.

THE COURT: All right.

¶ 11 At the bench, defense counsel said that she was “astounded”

and “stunned” by the trial court’s “highly prejudicial” comment.

The court responded, “I disagree that my comments had that effect.

I understand your concern and I certainly will be mindful of that

going forward.” The court further explained that the officer’s

6

testimony was “innocuous” compared to the bond document,

causing the court confusion when defense counsel objected to it.

¶ 12 Defense counsel moved for a mistrial, arguing that the court’s

statement suggested to the jury that “negative and damaging”

information existed about Braziel that they would not hear. The

court disagreed, reasoning that the comment did not suggest why

another form of evidence was less desirable, or for whom. While

admitting that a bench conference would have been the more

appropriate place to discuss the evidence’s form, the court

concluded that a mistrial was not warranted.

¶ 13 Two days later, the prosecution recalled the officer and offered

the bond document into evidence. The prosecutor represented that

the document had been redacted and offered it into evidence

“subject to further redaction.” The court received the exhibit

without further record from defense counsel.

¶ 14 The exhibit that appears in our appellate record contains an

unredacted reference to the criminal case number associated with

the bond (a different case number than the one for which Braziel

7

was on trial).

1

It also shows the date that Braziel signed the

document, almost two years before the trial began.

2. Applicable Law and Standard of Review

¶ 15 A mistrial is a drastic remedy that is warranted only when the

prejudice to the accused is so substantial that its effect on the jury

cannot be remedied by other means. People v. Owens, 2024 CO 10,

¶ 125. “A trial court has broad discretion to grant or deny a

mistrial motion, and an appellate court will not disturb its decision

absent a gross abuse of discretion and prejudice to the defendant.”

Id. We review the circumstances of each case to determine if the

defendant was prejudiced. People v. Johnson, 2017 COA 11, ¶ 43.

¶ 16 A jury’s exposure to evidence of a defendant’s past criminal act

is prejudicial, but “the prejudice is not necessarily of such

magnitude as to require a mistrial.” Id. at ¶ 41. Where such

evidence is brought to the jury’s attention, the factors relevant to

the court’s mistrial determination include the nature of the

improper evidence, the weight of the admissible evidence of guilt,

1

Earlier in the day, the court had instructed the prosecutor to

submit a clean version of a different exhibit for the court record and

a redacted version of the same exhibit for the jury.

8

and the value of any cautionary instruction given. People v. Vigil,

718 P.2d 496, 505 (Colo. 1986).

¶ 17 “Generally, instructing the jurors to disregard erroneously

admitted evidence is a sufficient remedy.” Johnson, ¶ 42. But a

curative instruction will not suffice when “inadmissible evidence ‘is

so highly prejudicial . . . it is conceivable that but for its exposure,

the jury may not have found the defendant guilty.’” Id. (quoting

People v. Everett, 250 P.3d 649, 663 (Colo. App. 2010)). To

demonstrate prejudice to the accused in the context of extraneous

information, there must be a reasonable possibility that the

information affected the verdict. People v. Dore, 997 P.2d 1214,

1221 (Colo. App. 1999).

¶ 18 A trial judge must not demonstrate bias or prejudice toward

any party or witness and must avoid “making rude comments or

entering into discussions showing irritation in the presence of the

jury.” People v. Acosta, 2014 COA 82, ¶ 92 (citation omitted); see

also People v. Coria, 937 P.2d 386, 391 (Colo. 1997) (“Courts ‘must

meticulously avoid any appearance of partiality . . . .’” (quoting

People v. Hrapski, 718 P.2d 1050, 1054 (Colo. 1986))). “Casual

remarks by the trial court while passing on objections to testimony

9

do not constitute reversible error unless they reflect adversely upon

the defendant or upon the issue of his . . . guilt or innocence.”

People v. Rodriguez, 209 P.3d 1151, 1162 (Colo. App. 2008). The

defendant must present more than speculation concerning the

possibility of prejudice. Id. “The test is whether the trial judge’s

conduct so departed from the required impartiality as to deny the

defendant a fair trial.”

2

Id.

3. Application

¶ 19 We perceive no abuse of discretion in the trial court’s

conclusion that a mistrial was not warranted on this record.

¶ 20 As an initial matter, the opening brief suggests two possible

reasons why a mistrial was required. The judge’s comment either

exposed the jury to extraneous evidence of Braziel’s criminal history

or suggested bias against Braziel. But a careful reading of the

opening brief reveals that Braziel’s primary concern is an

evidentiary one. Braziel does not argue on appeal that the court

2

As addressed in more detail below, we interpret Braziel’s primary

challenge as evidentiary. In contrast to the argument made at trial,

Braziel does not tether his assertions on appeal to the framework of

judicial bias or the appearance of partiality. As such, we need not

address the applicable standard of reversal for such claims.

10

had an interest in the outcome of the trial, that it assumed the role

of advocate, or that its tone divulged disfavor toward him. See

Acosta, ¶¶ 92-94. We thus limit our review to whether the court’s

comment exposed the jury to “extrajudicial evidence” bearing on

Braziel’s guilt — as he claims — and conclude that it did not.

¶ 21 We are not persuaded that the court’s reference to “the other

way for the information to come in” (i.e., the bond document) was

“extrajudicial.” The prosecution presented the court with the

document’s contents as an offer of proof, and the court determined

that it was relevant and admissible. Thus, this case is starkly

distinguishable from Scott v. Ohio, 480 U.S. 923, 925 (1987), on

which Braziel relies. In that case, the trial judge expressed his

opinion that the defendant committed the crime based on what he

read in a newspaper article. Id. at 924. Here, the alleged

“extrajudicial” information that the court referenced was an

alternative, equally admissible, means to connect Braziel and TT-3.

And while we agree that a jury’s exposure to inadmissible bad act

evidence is generally prejudicial, Johnson, ¶ 41, the evidence in

question was admissible, see CRE 801(d)(2); CRE 803(8). The court

11

had previously ruled that it was relevant and later admitted it

without further objection from defense counsel.

¶ 22 The trial court aptly noted that it would have been more

appropriate to discuss the issue outside the jury’s presence. We

agree, to be sure. But we are not persuaded that the court’s brief

remark warranted the drastic remedy of a mistrial for the following

reasons.

¶ 23 First, the trial court instructed the jury that its evidentiary

rulings should not be construed to indicate a bias toward or against

either party. Upon defense counsel’s motion for mistrial, the court

offered to repeat that instruction in general terms as a means to

cure its remark. Defense counsel continued making her record

without acknowledging or accepting the court’s offer. The court

also gave the jurors a lengthy and detailed instruction prohibiting

them from considering any evidence other than what the parties

presented at trial.

¶ 24 Second, the remark was ambiguous and did not obviously

draw the jury’s attention to Braziel’s criminal history. At most, the

comment suggested that the same information connecting Braziel to

TT-3 could be introduced in a different, less desirable way (via the

12

exhibit instead of the officer’s testimony). The trial court did not

say that the alternate route was less desirable for Braziel. It could

have been less desirable to the court, to the parties, for the sake of

efficiency, or based on any other evidentiary concern that the court

instructed the jurors not to consider. Nor did the court say that the

alternate route was damaging to Braziel because it was more

prejudicial. And while an attorney might assume that a “less

desirable” form of evidence is automatically damaging to a

defendant, we hesitate to conclude that the court’s brief comment,

devoid of context, so obviously invoked Braziel’s criminal history

that a reasonable juror would have taken it that way. Cf. People v.

Ramos, 2012 COA 191, ¶¶ 38, 44 (holding that the trial court’s

comment that the defendant “did something” could have confused

or misled the jury and should be avoided on remand), aff’d, 2017

CO 6.

¶ 25 Third, the remark was fleeting and was not brought back to

the jury’s attention after it was made. See People v. Shreck, 107

P.3d 1048, 1060 (Colo. App. 2004) (concluding that prejudice is

minimized where a reference to uncharged crimes was brief and not

repeated in front of the jury); Johnson, ¶ 45 (same).

13

¶ 26 For these reasons, the trial court did not abuse its discretion

by denying Braziel’s mistrial motion.

¶ 27 To the extent that Braziel challenges the exhibit’s reference to

a different criminal case number, the contention was not preserved,

and any error was not plain. See Hagos v. People, 2012 CO 63,

¶ 14 (holding that plain error is obvious, substantial, and so

undermines the fundamental fairness of trial as to cast serious

doubt on the reliability of the judgment of conviction).

¶ 28 The prosecutor told the trial court that the exhibit had been

partially redacted, and defense counsel raised no objection to the

redactions. Thus, we are unpersuaded that the court obviously and

substantially erred by admitting the bond document. See People v.

Glasser, 293 P.3d 68, 74 (Colo. App. 2011) (no error where

challenged evidence resulted from a mistake by the parties). The

document was one of over a hundred exhibits introduced at trial, it

was not referenced again after its admission, and it was cumulative

of testimony that the jury had already heard. The case number in

the corner of the document was small, it was never brought to the

jury’s attention, and it began with the same year as the case at

issue (19CR) — demanding close attention to detail for the

14

discrepancy to be discovered. And Braziel’s convictions were

supported by recordings of phone calls that he made, text messages

that he exchanged with his supplier and customers, and video

surveillance of his home — further reducing the possibility that the

admission of a bond document from a different case cast serious

doubt on the reliability of his convictions. See Shreck, 107 P.3d at

1060 (“[A] mistrial is not automatically required simply because

some reference was made to other inadmissible bad act evidence.”);

People v. Elagnaf, 829 P.2d 484, 489 (Colo. App. 1991) (“Moreover,

the defendant has failed to show that the jury’s exposure to an

exhibit which was referred to during the trial and contained

information cumulative to the testimony of one of the trial witnesses

prejudiced his defense. Under these circumstances, we conclude

no error, much less plain error, was occasioned.”).

B. Admission of the Drug Ledgers

¶ 29 Second, Braziel challenges the admission of ledgers

documenting Braziel’s ongoing debt to Neel, claiming that the

prosecution failed to establish by a preponderance of the evidence

that they were made in the course of the charged conspiracy.

15

1. Additional Background

¶ 30 Michael Wright, a Task Force officer, was certified as an expert

in drug culture and drug distribution. Wright testified that in the

drug industry, distributors frequently use ledgers to keep track of

paid and unpaid debts. Wright testified to a process called

“fronting,” where one person lends drugs to another person without

being paid, with the understanding that the purchase price will be

repaid once the borrowed drugs are sold. Ledgers, he testified,

document debts as they are created and satisfied.

¶ 31 The prosecution introduced ledgers found in Neel’s residence

that documented the ongoing tabs of Braziel and others. Defense

counsel objected on relevance, hearsay, foundation, and

speculation grounds. The trial court initially overruled the

objection, but almost immediately followed up with the prosecution

about the hearsay objection. After hearing argument on the

hearsay issue, the court concluded that the ledgers were

nontestimonial co-conspirator statements and that sufficient

evidence, including phone calls between Neel and Braziel and

surveillance footage of their interactions, corroborated the fact that

Neel created the ledgers. Defense counsel then objected to the

16

ledgers’ admission because the exhibits contained at least two

distinct handwritings, and the prosecution presented no

handwriting experts or testimony from anyone who observed Neel

making the ledgers.

¶ 32 The court then asked the prosecution to lay further foundation

regarding the source of the handwriting. After doing so, the

prosecution argued that the names and amounts documented in

the ledgers corresponded with the wiretap and passive surveillance

evidence, showing that the ledgers were made by Neel or at his

direction. Satisfied with the additional record and argument, the

court received the ledgers into evidence under CRE 801(d)(2)(E).

2. Applicable Law and Standard of Review

¶ 33 Hearsay, an out-of-court statement offered to prove the truth

of the matter asserted, is generally inadmissible. See CRE 801(c);

CRE 802. Under CRE 801(d)(2)(E), however, an out-of-court

statement is not hearsay if it is offered against a party, and it was

made by a co-conspirator of the party. To admit evidence under

CRE 801(d)(2)(E), the proponent of the evidence (here, the

prosecution) must show “by a preponderance of the evidence that

the defendant and the declarant were members of a conspiracy and

17

that the declarant’s statement was made during the course and in

furtherance of the conspiracy.” People v. Montoya, 753 P.2d 729,

733-34 (Colo. 1988).

¶ 34 A court may consider the alleged co-conspirator’s statement as

foundation for its admissibility, but there must also be some

corroborating evidence of the conspiracy apart from the alleged co-

conspirator’s statement itself. Id. at 736. The required

corroborating evidence may take several forms, including

circumstantial evidence of the conspiracy or the defendant’s own

statements. Id.

¶ 35 We review a trial court’s rulings on the admissibility of

evidence for an abuse of discretion. People v. Brown, 2022 COA 19,

¶ 57. A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or where it applies an incorrect

legal standard. People v. Rodriguez, 2022 COA 98, ¶ 12.

¶ 36 On appeal, Braziel argues that the trial court improperly

admitted the ledgers under CRE 801(d)(2)(E), but for a different

reason. At trial, defense counsel argued that the prosecution failed

to lay sufficient foundation to establish by a preponderance of the

evidence that Neel was the declarant. While Braziel briefly

18

acknowledges that argument in the opening brief, his primary

contention is that nothing in the record connects the ledger entries

to any of the discrete, and time-limited, drug distribution

conspiracies that formed the basis of the charges against him.

Because Braziel makes the timing argument for the first time on

appeal, we reverse only for plain error. See Hagos, ¶ 14.

3. Application

¶ 37 For the challenged statements to be admissible, the

prosecution had to prove by a preponderance of the evidence that

the ledgers were made during the course and in furtherance of the

conspiracy. See Montoya, 753 P.2d at 733-34. Braziel claims that

the prosecution failed to do so because the ledgers were not dated.

¶ 38 Even if we assume the trial court erred in admitting the

ledgers as statements made during the course and in furtherance of

the conspiracy, any error was not plain such that the court was

required to intervene on its own. First, the ledgers did not amount

to a substantial part of Braziel’s trial. True, they did implicate his

ongoing debt with Neel. But that was not new information as far as

the jury was concerned; indeed, the wiretap evidence documented

Braziel and Neel’s conversations about the status of Braziel’s debt.

19

Second, the ledgers amounted to a very small portion of the

testimony in the context of the six-day trial. They were not as

prejudicial to Braziel as the wiretap evidence, passive surveillance,

and controlled buy involving a confidential informant. And the

prosecution did not reference the ledgers during closing argument.

¶ 39 To the extent that Braziel asserts the preserved claim of error

on appeal — that the prosecution failed to establish that Neel was

the declarant — we are unpersuaded. The trial court acted within

its discretion in concluding that the following evidence established,

by a preponderance of the evidence, that the ledgers were made by

Neel or transcribed at his direction:

• The ledgers were found in Neel’s residence.

• The ledgers documented debts of Neel’s known

associates, including some of Braziel’s co-conspirators.

• The ledgers corresponded with previously admitted

evidence of ongoing debt between Neel and Braziel related

to drug distribution.

• A love note was left for “Christopher” (Neel’s first name)

by his wife in an adjacent notebook page on one of the

ledgers.

20

¶ 40 Further, Braziel had ample opportunity to challenge the

ledgers on cross-examination. See People v. Lesslie, 939 P.2d 443,

451 (Colo. App. 1996) (“Once authenticity is established, defects in

the physical evidence go to the weight of that evidence.”); see also

Montoya, 753 P.2d at 735 (trial court may consider weight of

weaknesses in the proffered evidence in evaluating preliminary

question of admissibility). Perceiving no reversible error in the

ledgers’ admission for the foregoing reasons, we need not decide

whether the ledgers were also admissible as nonhearsay statements

not offered for the truth of the matter asserted.

C. Prosecutorial Misconduct

¶ 41 Third, Braziel claims that the prosecutor committed reversible

misconduct by likening Braziel’s conduct to “selling poison in the

community.”

1. Additional Background

¶ 42 During closing argument, the prosecutor referred to the

methamphetamine and heroin that Braziel distributed as “poison”:

And we know here based on all the evidence,

the totality of the evidence, this drug

trafficking organization that consisted of Mr.

Braziel, Christopher Neel . . . and several

others . . . that the objective, the common goal,

21

the business was the distribution of poison or

illegal narcotics into this community.

Defense counsel did not object. The prosecutor then said, “So over

a 30-day span the defendant distributed 14 pounds, one pound less

than that bag that I just held up, out into our community.” Defense

counsel objected to the second statement, and the trial court

warned the prosecutor to avoid appeals to community safety. The

court repeated its instruction to the jury to not let sympathy or

emotion influence their decision.

¶ 43 The prosecutor concluded his argument by saying, without

objection, “The evidence supports that the defendant was

distributing narcotics in this community . . . .”

¶ 44 During rebuttal closing, the prosecutor said, “He’s profiting

from poison,” and “[w]e’re accusing him of distributing drugs in the

community.” Defense counsel did not object.

2. Applicable Law and Standard of Review

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

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

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

22

Second, we decide whether such actions warrant reversal under the

proper standard of review. Id. “While a prosecutor can use every

legitimate means to bring about a just conviction, [he] has a duty to

avoid using improper methods designed to obtain an unjust result.”

Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).

¶ 46 “Prosecutors may not use arguments calculated to inflame the

passions and prejudices of the jury.” People v. Salazar, 2023 COA

102, ¶ 50. Nor should a prosecutor ask the jury to consider the

wishes of the community or send the community a message about a

particular type of crime in reaching its verdict. People v. Marko,

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

¶ 47 We review the unpreserved references to “poison” for plain

error, see Hagos, ¶ 14, and will not reverse unless the misconduct

was obvious and substantial, and so undermined the fundamental

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

judgment of conviction, People v. Smith, 2018 CO 33, ¶ 24.

¶ 48 “Prosecutorial misconduct in closing argument rarely

constitutes plain error.” People v. Smalley, 2015 COA 140, ¶ 37;

see also Hagos, ¶ 23 (Reversals on plain error review “must be rare

to maintain adequate motivation among trial participants to seek a

23

fair and accurate trial the first time.”). Reversal for plain error is

only warranted when there is a substantial likelihood that the error

affected the verdict. People v. Constant, 645 P.2d 843, 847 (Colo.

1982). Thus, even if improper, a prosecutor’s comments during

closing do not necessarily warrant reversal if the combined

prejudicial impact of the statements does not cast serious doubt on

the reliability of the conviction. People v. Nardine, 2016 COA 85,

¶ 66.

¶ 49 To the extent that Braziel preserved a general community

safety argument, the court addressed the objection by warning the

prosecutor not to make appeals about community safety and

instructing the jury not to let bias or sympathy influence their

decision. Defense counsel did not request further relief, and

appellate counsel does not challenge the adequacy of the court’s

remedy.

3. Application

¶ 50 The prosecutor’s comments about poison in the community

were not one of those rare instances that so undermined the

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

reliability of the judgment of conviction. See Smith, ¶ 24.

24

¶ 51 First, while the statements at times referenced “the

community,” the prosecutor never asked the jury to send a message

to the community or use the community’s wishes as a reason to

reach a verdict that was not otherwise grounded in the evidence.

See Marko, ¶ 221. Instead, the argument was grounded in the

evidence that the jury was to consider in reaching its decision. And

the references were brief, passing comments made in the context of

a fifty-page argument largely focused on the wiretap evidence. See

Salazar, ¶ 52 (prosecutor’s comment during closing argument did

not warrant reversal under the plain error standard where the

remark was fleeting in the context of the argument as a whole); see

also United States v. Moya-Breton, 329 F. App’x 839, 845-46 (10th

Cir. 2009) (finding no plain error where the prosecutor urged the

jury to take drug dealers off the streets and to “help keep these

kinds of poisons away from their intended recipients”).

¶ 52 Second, overwhelming evidence supported Braziel’s

convictions, including wiretap evidence documenting him engaging

in drug deals, passive surveillance corroborating that the deals took

place, and a controlled buy where Braziel sold drugs to a

confidential informant. See People v. Estes, 2012 COA 41, ¶ 42

25

(prosecutorial misconduct in closing argument did not warrant

reversal under the plain error standard because, among other

things, overwhelming evidence supported the guilty verdict).

¶ 53 Finally, defense counsel’s failure to contemporaneously object

to the “poison” references Braziel now challenges on appeal

indicates that the comments were not overly damaging in the

context of live argument. See Domingo-Gomez, 125 P.3d at 1054;

People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (counsel’s

failure to object is a factor that may be considered in examining the

impact of a prosecutor’s argument and may demonstrate that

counsel believed the live argument was not overly damaging).

¶ 54 Accordingly, because any misconduct by the prosecutor

during closing argument neither substantially influenced the verdict

nor cast serious doubt on the reliability of the judgment of

conviction, reversal is not required. See Hagos, ¶ 14; Nardine, ¶ 66.

D. Cumulative Error

¶ 55 Braziel next contends that we must reverse because the trial

court’s errors, together, undermined the fairness of the trial.

¶ 56 “[R]eversal [is] required when ‘the cumulative effect of

[multiple] errors and defects substantially affected the fairness of

26

the trial proceedings and the integrity of the fact-finding process.’”

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

Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666 (1980)). While plain

errors can be considered for cumulative error purposes, we cannot

discern how any combination of the preserved claims of error and

the unpreserved claims of error — which were not plain — could

have deprived Braziel of a fair trial. See People v. Vidauri, 2019

COA 140, ¶ 97, rev’d in part on other grounds, 2021 CO 25.

III. Proportionality Review

¶ 57 The trial court sentenced Braziel to six consecutive twenty-

year sentences for each level 1 drug felony for which he was

convicted — amounting to 120 years in DOC custody. Braziel now

asks this court to remand the case to the trial court for a

proportionality review. Because Braziel’s rationale for a

proportionality review is unavailing, remand is not warranted.

¶ 58 The United States and Colorado Constitutions prohibit

sentences that are “grossly disproportionate” to the crime. Wells-

Yates v. People, 2019 CO 90M, ¶¶ 5, 10. When a defendant

requests a proportionality review, he alleges that his sentence is

“grossly disproportionate to the crime” and is, therefore, an

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unconstitutionally cruel and unusual punishment. People v.

Kennedy, 2023 COA 83M, ¶ 12. We review de novo whether a

sentence is grossly disproportionate. Wells-Yates, ¶ 35.

¶ 59 A proportionality review involves a two-step process: an

abbreviated proportionality review and, if needed, an extended

proportionality review. Kennedy, ¶ 12. The abbreviated

proportionality review requires the sentencing court to compare the

gravity or seriousness of the offense with the harshness of the

penalty to determine whether the sentence gives rise to an inference

of gross proportionality. Id. at ¶ 13. If the court finds such an

inference, it conducts an extended proportionality review,

comparing the defendant’s sentence to sentences for other crimes in

the same jurisdiction and sentences for the same crime in other

jurisdictions. Wells-Yates, ¶¶ 7-8, 17. “[A]n abbreviated

proportionality review will almost always yield a finding that the

sentence is not unconstitutionally disproportionate . . . .” Id. at

¶ 21.

¶ 60 “While most proportionality challenges occur in habitual

criminal cases, the same principles apply in nonhabitual cases.”

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People v. Sellers, 2022 COA 102, ¶ 57 (cert. granted on other

grounds May 15, 2023).

¶ 61 “If there are multiple triggering offenses, the reviewing court

must look at the sentence imposed for each such offense and

engage in a proportionality review of that sentence because each

sentence represents a separate punishment for a distinct and

separate crime.” Wells-Yates, ¶ 24 (citing Close v. People, 48 P.3d

528, 538-39 (Colo. 2002)) (rejecting proportionality review of the

cumulative impact of several sentences). If a proportionality review

were to assess “the cumulative effect of the sentences imposed on

all the triggering offenses, it could result in an inference of gross

disproportionality merely because the defendant committed

multiple crimes.” Id. Thus, any review of Braziel’s sentences would

be of each sentence individually. See id. at ¶ 74.

¶ 62 Braziel does not ask for a proportionality review of each of his

level 1 drug felony sentences; instead, he asks only for a review of

the “de facto life sentence” resulting from the consecutive

imposition of his sentences. Wells-Yates precludes the relief Braziel

seeks. See id.

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¶ 63 But even individually, Braziel’s sentences are unlikely to give

rise to an inference of gross disproportionality. True, the Colorado

Supreme Court recently held that not all narcotics offenses are per

se grave or serious. Id. at ¶ 66. But Braziel was convicted of

purchasing significant quantities of methamphetamine and heroin

from his supplier for the purpose of resale. Indeed, the evidence

showed that Braziel successfully resold the drugs. Further, Braziel

was sentenced in the middle of the presumptive sentencing range

for level 1 drug felonies without sentence enhancers or habitual

counts, and his offenses are parole eligible. See § 18-1.3-

401.5(2)(a), C.R.S. 2023; see also Wells-Yates, ¶ 14. Thus, we

conclude that even a properly raised proportionality challenge

would have been unavailing under the initial abbreviated step.

IV. Merger

¶ 64 Finally, Braziel contends that two of his level 1 drug felony

convictions — counts thirteen and fourteen — were multiplicitous

because they involved a single transaction on the same day.

¶ 65 The United States and Colorado constitutions prohibit placing

someone twice in jeopardy for the same offense. Whiteaker v.

People, 2024 CO 25, ¶ 10. Thus, punishing an individual twice for

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the same offense runs afoul of double jeopardy principles. People v.

Grosko, 2021 COA 28, ¶ 24. We do not review double jeopardy

sentencing errors for plain error; instead, we automatically merge

the multiplicitous convictions to remedy such errors. Whiteaker,

¶ 24.

¶ 66 To determine whether a defendant is prosecuted for

multiplicitous charges under the same statute, we apply a two-

pronged test. People v. Manzanares, 2020 COA 140M, ¶ 41. First,

we determine whether the statutorily defined unit of prosecution

permits the charging of multiple offenses. Id. Next, we review the

allegations in support of each offense to determine whether the

defendant’s conduct constituted factually distinct offenses. Id.

¶ 67 Section 18-2-201(4), C.R.S. 2023, provides that “[i]f a person

conspires to commit a number of crimes, he is guilty of only one

conspiracy so long as such multiple crimes are part of a single

criminal episode.” Accordingly, if a court concludes multiple alleged

conspiracy offenses are all part of a single criminal episode, then

only one conspiracy exists, and the district court should dismiss

any multiplicitous charges. Pinelli v. Dist. Ct., 197 Colo. 555, 558-

59, 595 P.2d 225, 228 (1979). Conversely, if the trial court finds

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that the substantive offenses were not part of the same criminal

episode, then the court should deny a motion to dismiss the

charges as multiplicitous. Id.

¶ 68 To determine whether a defendant’s conduct constitutes

factually distinct offenses in the conspiracy context, we apply

various factors, including whether (1) the acts alleged occurred

during the same timeframe; (2) the type of overt act alleged is the

same; (3) the unlawful objective of the alleged conspiracies is the

same; (4) the modus operandi is the same; and (5) the same

evidence would be relevant to both charges. Pinelli, 197 Colo. at

558, 595 P.2d at 227. The following factors indicate that the

prosecution charged different criminal episodes: (1) different

parties; (2) different counties; (3) different agreements; and

(4) different overt acts. People v. Davis, 2017 COA 40M, ¶ 18.

¶ 69 Here, the conduct underlying counts thirteen and fourteen is

best characterized as a singular agreement to exchange a specified

quantity of methamphetamine in two installments. On September

28, 2019, Braziel tried to purchase a pound of methamphetamine

from Neel. Neel told Braziel that he had 308 grams of

methamphetamine that Braziel could pick up right away, and that

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he would owe Braziel the additional 140 grams. Neel would not

charge Braziel for the pound until he could provide the remaining

140 grams. The pair exchanged the first 308 grams around 5 p.m.

Later that night, Braziel and Neel arranged a second meeting to

exchange (1) the remaining 140 grams, and (2) the proceeds Braziel

had thus far received from selling the first installment. That

exchange occurred at approximately 11:40 p.m.

¶ 70 On these facts, we cannot conclude that Braziel’s conduct

constituted factually distinct offenses. The exchanges involved the

same two people, in the same county, within hours of each other.

See id. Notably, and unlike the other charged conspiracies, these

counts originated from the same agreement: that Braziel would

purchase one pound of methamphetamine from Neel. See Pinelli,

197 Colo. at 558, 595 P.2d at 227. The evidence of the singular

agreement underlying the transactions is relevant to both counts,

further suggesting multiplicity. See id. Because the two conspiracy

counts resulted from the same agreement, we conclude that the

pound’s delivery in two installments is of no moment. See Davis,

¶ 26.

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¶ 71 Thus, we merge Braziel’s convictions for counts thirteen and

fourteen and remand for the trial court to amend the mittimus.

V. Disposition

¶ 72 The judgment of conviction is affirmed in part and vacated in

part, and the case is remanded with directions for the trial court to

amend the mittimus to reflect merger of Braziel’s convictions for

counts thirteen and fourteen.

JUDGE GROVE and JUDGE SULLIVAN concur.