People v. Feldman

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 7, 2024

2024COA119

No. 22CA0792, People v. Feldman — Government — County
Officers — Coroner — Cause and Manner of Death;
Constitutional Law — Separation of Powers — Subdelegation
Doctrine

As a matter of first impression, a division of the court of

appeals holds that, when the county coroner certifies the cause and

manner of a victim’s death as “undetermined,” the prosecution may

present other evidence regarding the cause and manner of the

victim’s death in a subsequent criminal proceeding, even if it

conflicts with the coroner’s determination. The division rejects the

defendant’s argument that the prosecution’s expert witness

usurped the county coroner’s sole authority to determine the cause

and manner of the victim’s death, thereby violating either the

subdelegation doctrine or the separation of powers doctrine.
Because the division rejects the defendant’s remaining

contentions on appeal — that the district court erred by admitting

improper expert testimony, denying defense counsel’s motion for a

mistrial, and admitting improper character evidence — the

defendant’s conviction for first degree murder is affirmed.
COLORADO COURT OF APPEALS 2024COA119

Court of Appeals No. 22CA0792
City and County of Denver District Court No. 18CR1121
Honorable Edward D. Bronfin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert W. Feldman,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE TAUBMAN*
Lipinsky and Sullivan, JJ., concur

Announced November 7, 2024

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan & Foreman, P.C., Jeffrey S. Pagliuca, Adam Mueller, Denver,
Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Robert W. Feldman, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

murder. Because we reject Feldman’s constitutional argument that

the prosecution’s expert usurped the county coroner’s sole

authority by testifying about the cause and manner of the victim’s

death and reject his other challenges, we affirm.

I. Background

¶2 Feldman and the victim were married and had two children.

¶3 Around 9 a.m. on March 1, 2015, Feldman drove the children

to Sunday school. The victim had planned to pick them up at noon

and take them to a Purim carnival,1 but she never showed up to

school and did not answer her phone when the school’s director

called her.

¶4 Shortly after 1 p.m., Feldman picked the children up from

school and took them to the carnival. He and the children returned

home around 3 p.m. At 3:21 p.m., Feldman called 911 to report

1 In their answer brief, the People incorrectly describe the Purim

carnival as a “church” carnival. Purim is a Jewish holiday
commemorating the saving of the Jews from a threatened massacre
in ancient Persia. See Encyclopedia Britannica, Purim, (database
updated Oct. 21, 2024), https://perma.cc/D3NT-ZHEM.

1
that he had found the victim unconscious in the bathtub with the

shower running.

¶5 When emergency personnel arrived, the victim was lying naked

on her back on the bathroom floor; Feldman explained that he had

pulled her out of the bathtub. The victim had no pulse, and she did

not respond to any medical treatment. Bruises and abrasions

covered her body.

¶6 An autopsy revealed that the victim had sustained almost all

of the injuries before her death. A forensic pathologist also

discovered that the victim had an enlarged heart and a variety of

chronic health conditions, including kidney disease and obesity, all

of which put her at an increased risk of death. The pathologist was

unable to determine the cause and manner of the victim’s death.

¶7 Several months later, the police received a call from S.M., who

reported that she and Feldman had engaged in sexual relations

three days before the victim died. S.M. told the police that she had

contacted the victim about Feldman’s affair the morning of the

victim’s death and that, during their phone call, the victim had told

S.M. “I’m done with him”; Feldman had cheated on her before; and

she “thought we were past that.” The police then took additional

2
steps to investigate the victim’s death as a homicide, including

consulting Dr. William Smock, a medical expert who opined that the

victim had died from a combination of strangulation and

suffocation.

¶8 The People charged Feldman with first degree murder. At

trial, the prosecution’s primary theory was that Feldman killed his

wife because she had discovered his extramarital affair; he feared

that she would leave him as a result, so he killed her before she had

the chance to do so.

¶9 The jury found Feldman guilty as charged. The district court

sentenced him to life in prison without the possibility of parole.

II. Discussion

¶ 10 Feldman contends that we must reverse his conviction

because the district court erroneously (1) permitted the prosecution

to usurp the county coroner’s authority by presenting Dr. Smock’s

testimony regarding the cause and manner of the victim’s death; (2)

admitted improper expert testimony by Dr. Smock; (3) denied

defense counsel’s motion for a mistrial; and (4) admitted improper

character evidence. He also contends that the cumulative effect of

3
these alleged errors warrants reversal. We address and reject each

of his contentions in turn.

A. Cause and Manner of Death

¶ 11 Feldman first asserts that Dr. Smock’s testimony usurped the

county coroner’s sole authority to determine the cause and manner

of the victim’s death, thereby violating either the subdelegation

doctrine or the separation of powers doctrine. We perceive no

constitutional violation.

1. Additional Background

¶ 12 Dr. Kelly Kobylanski performed the victim’s autopsy under the

supervision of Dr. Meredith Frank, a forensic pathologist. As noted,

the autopsy revealed that the victim had an enlarged heart and a

variety of chronic health conditions and that most of the victim’s

injuries had occurred before she died. Dr. Kobylanski, in

consultation with Dr. Frank and the coroner, could not determine

how the victim died. Dr. Frank certified the cause and manner of

death on the victim’s death certificate as “undetermined,”

explaining that she requires 99.9% certainty before classifying a

deceased’s manner of death as a homicide and did not have that

degree of certainty in this case.

4
¶ 13 Two years later, the prosecution retained Dr. Smock as an

expert in strangulation and forensic medicine. After reviewing the

autopsy results and photos of the victim taken the day she died, Dr.

Smock wrote a report in which he opined that the victim had died

from a combination of strangulation and suffocation.

¶ 14 Defense counsel filed a pretrial motion to exclude Dr. Smock’s

testimony about the cause and manner of the victim’s death,

reasoning that such testimony would usurp the coroner’s sole

authority to determine the cause and manner of the victim’s death

under sections 30-10-606 and -606.5, C.R.S. 2024. The district

court denied the motion.

¶ 15 At trial, Dr. Smock testified that he believed the victim “died

from asphyxia from the combination of strangulation and

suffocation, based on the injuries and patterns of the bruising and

where the blood went and didn’t go.”

2. Standard of Review and Applicable Law

¶ 16 We review questions of law concerning the separation of

powers doctrine de novo. Hickerson v. Vessels, 2014 CO 2, ¶ 10,

316 P.3d 620, 623. That doctrine provides that Colorado’s

executive, legislative, and judicial branches of government “shall co-

5
operate with and complement, and at the same time act as checks

and balances against one another[,] but shall not interfere with or

encroach on the authority or within the province of the other.”

Lobato v. State, 218 P.3d 358, 372 (Colo. 2009) (quoting Smith v.

Miller, 384 P.2d 738, 741 (Colo. 1963)); see Colo. Const. art. III.

3. Analysis

¶ 17 The Colorado Constitution creates the elected office of county

coroner. Colo. Const. art. XIV, § 8. “The coroner, in cooperation

with law enforcement, shall make all proper inquiry in order to

determine the cause and manner of death of any person in his or

her jurisdiction who has died” and issue a death certificate under

certain circumstances including “[w]hen no physician is in

attendance.” § 30-10-606(1)(b), (4)(a). In some cases, “[t]he coroner

or his or her designee shall . . . have a forensic autopsy performed”

by a board-certified forensic pathologist, a physician who has

completed a forensic pathology fellowship and is practicing forensic

pathology in Colorado, or a pathology resident or forensic pathology

fellow under a board-certified forensic pathologist’s supervision.

§§ 30-10-606(2), -606.5(2)(a)-(d).

6
¶ 18 Feldman asserts that these provisions give the coroner or the

forensic pathologist whom the coroner orders to perform the

autopsy sole discretion to determine the cause and manner of an

unattended death and, consequently, preclude the prosecution from

presenting testimony regarding the cause and manner of an

unattended death from anyone other than those two individuals. In

this regard, he raises two arguments for reversal, both of which we

reject.

a. Subdelegation Argument

¶ 19 Feldman first argues that, if the coroner is part of the

executive branch, the prosecution violated the subdelegation

doctrine by introducing Dr. Smock’s testimony because that

doctrine prevents an agency within one governmental branch from

delegating its authority to a “co-equal agency” within the same

branch. Because the district attorney’s office and the coroner’s

office are coequal agencies within the executive branch, his

argument continues, “the county coroner could not delegate — and

the county prosecutor could not usurp — the power to determine

cause and manner of death.”

7
¶ 20 Even if we were to assume that the district attorney’s office

and the coroner’s office are coequal agencies within the executive

branch,2 Feldman has not demonstrated that the subdelegation

doctrine applies in Colorado. He cites no Colorado case, nor are we

aware of one, that addresses the doctrine. The few cases on which

he relies are inapposite, as they discuss the concept of

subdelegation largely within the federal administrative agency

context, which bears no relevance to this case. See, e.g., U.S.

Telecom Ass’n v. FCC, 359 F.3d 554, 564-66 (D.C. Cir. 2004) (The

Federal Communications Commission cannot subdelegate its

authority to state commissions, in part because “delegation to

outside entities increases the risk that these parties will not share

the agency’s ‘national vision and perspective,’ and thus may pursue

goals inconsistent with those of the agency and the underlying

statutory scheme.” (quoting Nat’l Park & Conservation Ass’n v.

Stanton, 54 F. Supp. 2d 7, 20 (D.D.C. 1999))).

¶ 21 Additionally, even if the subdelegation doctrine applies in

Colorado, we conclude that the doctrine is not implicated under the

2 The district attorney’s office is part of the executive branch. See
People v. Dist. Ct., 767 P.2d 239, 240 (Colo. 1989).

8
circumstances of this case because no delegation occurred: The

coroner and forensic pathologist performed their duties to conduct

a forensic autopsy, determine the cause and manner of death, and

issue a death certificate, without delegating them to the district

attorney’s office. If the prosecution had asked the coroner to

change his determination regarding the cause and manner of the

victim’s death, alter her death certificate, or have her autopsy

performed by someone other than a qualified forensic pathologist,

the subdelegation doctrine might conceivably apply. However, the

prosecution merely exercised its authority to prosecute crimes by

presenting evidence at Feldman’s trial about how the victim died —

an issue that the jury was tasked with deciding. Such evidence is

especially helpful where, as here, the coroner and forensic

pathologist could not determine how the victim died.

¶ 22 Carrick v. Locke, 882 P.2d 173 (Wash. 1994), and Roark v.

Lyle, 116 N.E.2d 817 (Ohio Ct. Com. Pl.), aff’d mem., 121 N.E.2d

837 (Ohio Ct. App. 1952), on which Feldman relies, are not to the

contrary. In Carrick, the Washington Supreme Court rejected an

argument that permitting a district court judge to conduct a

coroner’s inquest into a death constitutes an improper delegation of

9
the coroner’s authority. 882 P.2d at 176-79. In Roark, the Court of

Common Pleas of Ohio ruled that it is unconstitutional for the

judiciary to direct a coroner to change his determination regarding

the cause and manner of death and alter the death certificate

accordingly. 116 N.E.2d at 818-19.

¶ 23 Unlike in Carrick and Roark, this case does not involve a

situation in which someone other than the coroner performed the

coroner’s duties or one in which someone directed the coroner to

change his determination regarding the cause and manner of the

victim’s death and alter her death certificate. To the contrary, the

coroner performed his statutory duties without interference. The

performance of those duties in no way precluded the prosecution

from presenting other evidence regarding the cause and manner of

the victim’s death in a subsequent criminal proceeding, even if it

conflicted with the coroner’s determination. See Lockwood v.

Travelers Ins. Co., 498 P.2d 947, 952 (Colo. 1972) (Statements in a

death certificate are “rebuttable by evidence, be it direct or

circumstantial, which tends to show the actual circumstances

surrounding the death.”) (citation omitted).

10
b. Separation of Powers Argument

¶ 24 Feldman alternatively argues that, if the coroner is part of the

legislative branch, the prosecution, as part of the executive branch,

violated the separation of powers doctrine by introducing Dr.

Smock’s testimony.

¶ 25 We disagree with the parties’ assertions that Feldman

preserved his separation of powers challenge. Our review of the

record shows that defense counsel never argued that the coroner is

part of the legislative branch or that the prosecution otherwise

violated the separation of powers doctrine. Counsel’s only

argument regarding the prosecution’s alleged usurpation of the

coroner’s authority pertained to the subdelegation doctrine and was

premised on the assumption that the coroner is part of the

executive branch. Accordingly, Feldman’s separation of powers

challenge is subject to plain error review. See Reyna-Abarca v.

People, 2017 CO 15, ¶ 47, 390 P.3d 816, 823 (a defendant in a

criminal case may raise a constitutional claim for the first time on

appeal, and, unless the claim was waived or invited, an appellate

court will review it for plain error).

11
¶ 26 Feldman offers no support for his contention that the coroner

is part of the legislative branch. Feldman cites only the

constitutional provision that creates the elected office of county

coroner. See Colo. Const. art. XIV, § 8. Nothing in that provision

states or even suggests that the coroner is part of the legislative

branch. Moreover, we agree with the People that there is nothing

legislative about a coroner’s duties, including the duty to determine

the cause and manner of an unattended death — which, according

to section 30-10-606(1), shall be done in cooperation with law

enforcement officials.3 His separation of powers challenge thus fails

by its own terms.

B. Expert Testimony

¶ 27 Feldman next challenges Dr. Smock’s opinions as inadmissible

expert testimony. We reject his challenge.

3 Indeed, many of the coroner’s duties overlap significantly with

those of law enforcement officials. See, e.g., § 30-10-604, C.R.S.
2024 (“When there is no sheriff in any county, it is the duty of the
coroner to exercise all the powers and duties of the sheriff of his
county until a sheriff is appointed or elected and qualified . . . .”).

12
1. Standard of Review and Applicable Law

¶ 28 We review a district court’s evidentiary rulings for an abuse of

discretion. Kutzly v. People, 2019 CO 55, ¶ 8, 442 P.3d 838, 841.

A court abuses its discretion if its ruling is manifestly arbitrary,

unreasonable, or unfair or if it misapplies the law. People v.

Battigalli-Ansell, 2021 COA 52M, ¶ 30, 492 P.3d 376, 384.

¶ 29 CRE 702 and CRE 403 govern the admissibility of expert

testimony. “[U]nder these evidentiary rules, admissibility of expert

testimony requires that the testimony be relevant and reliable, and

that the probative value of the evidence not be substantially

outweighed by any of the countervailing considerations contained in

CRE 403.” Kutzly, ¶ 10, 442 P.3d at 841. A district court’s

determination of whether the evidence is reliable “should be broad

in nature and consider the totality of the circumstances of each

specific case.” People v. Shreck, 22 P.3d 68, 77 (Colo. 2001). In

making this determination, the court should consider whether the

scientific principles underlying the witness’s testimony are

reasonably reliable and whether the witness is qualified to testify

about such matters by virtue of the witness’s experience,

knowledge, training, or skill. Id.; see CRE 702.

13
2. Analysis

¶ 30 Feldman asserts that Dr. Smock was not qualified to testify

about the cause and manner of the victim’s death because he is not

a forensic pathologist and that his testimony was therefore

unreliable. Whether Dr. Smock is a forensic pathologist is not

dispositive of this issue, however. As discussed above, a district

court’s reliability determination is based on the totality of the

circumstances and considers the witness’s subject matter expertise.

Shreck, 22 P.3d at 77. Dr. Smock’s seventy-one-page curriculum

vitae indicated that his experience includes treating or consulting

with thousands of strangulation and suffocation patients, assisting

in thousands of autopsies, publishing extensively in the fields of

emergency and forensic medicine, and working as a police surgeon

and a medical director for the Institute on Strangulation Prevention.

Based on his experience, we conclude that the trial court did not

abuse its discretion by admitting Dr. Smock as an expert in clinical

forensic medicine and strangulation to opine that the victim’s

bruises were consistent with strangulation and suffocation.

¶ 31 Feldman also asserts that Dr. Smock’s testimony about the

victim’s injuries was speculative because he did not participate in

14
the victim’s autopsy but instead formed his opinion after reviewing

the autopsy report years after Dr. Kobylanski performed the

autopsy. However, he does not explain how Dr. Smock’s lack of

participation in the autopsy rendered his testimony speculative or

otherwise unreliable. Indeed, even Dr. Frank, who supervised the

autopsy, agreed with Dr. Smock’s determination that the victim

more likely died from suffocation and strangulation than from

cardiac arrest. In any event, “[c]oncerns about conflicting opinions

or whether a qualified expert accurately applied a reliable

methodology go to the weight of the evidence, not its admissibility,”

People v. Shanks, 2019 COA 160, ¶ 12, 467 P.3d 1228, 1234, and

“concerns about the degree of certainty to which the expert holds

his opinion are sufficiently addressed by vigorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof rather than exclusion,” Est. of

15
Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011).4 Here, defense

counsel not only cross-examined Dr. Smock vigorously but also

critiqued his testimony during closing argument by highlighting his

alleged lack of qualifications.

¶ 32 In addition, we reject Feldman’s contention that Dr. Smock’s

testimony was argumentative and amounted to improper bolstering.

Contrary to Feldman’s assertion that Dr. Smock “repeatedly told the

jury that he had ‘the best’ opinion and the board-certified forensic

4 Feldman cites numerous cases from other jurisdictions to support

his argument that Dr. Smock’s testimony was inadmissible. See
Boerste v. Ellis, LLC, No. 3:17-CV-298-BJB-CHL, 2021 WL
6101678, at *10-12 (W.D. Ky. Sept. 29, 2021) (unpublished report
and recommendation) (Although Dr. Smock was eminently qualified
to offer his opinions and observations regarding the plaintiff’s
injuries, his testimony about “police practices, towing operations, or
security matters” was inadmissible because it exceeded the scope of
his expertise.), adopted, 2021 WL 5449003 (W.D. Ky. Nov. 22, 2021)
(unpublished order); Conner v. State, No. 46924, 2020 WL 2301190,
at *4 (Idaho Ct. App. May 8, 2020) (unpublished opinion) (finding
Dr. Smock’s expert testimony about defensive wounds was
inadmissible because of a discovery violation); Jenkins v. Ky. Ret.
Sys., No. 2018-CA-000395-MR, 2019 WL 4565240, at *3 (Ky. Ct.
App. Sept. 20, 2019) (unpublished opinion) (affirming a decision in
which a hearing officer found that Dr. Smock’s testimony was “less
persuasive” than that of another doctor). These cases are
inapposite; it appears that Feldman cites them only because they
involved Dr. Smock’s testimony. His testimony in other cases has
no relevance to the admissibility of his testimony in this case, and
the other cases do not address Dr. Smock’s qualifications in the
context of this case.

16
pathologists were wrong,” our review of the record shows that Dr.

Smock never claimed he had the best opinion and that his only

critique of the pathologists — that there were “[m]ultiple things that

were missed” in the autopsy — was subject to an objection that the

court sustained on the grounds that the prosecution had not

disclosed such testimony to the defense before trial.

¶ 33 In sum, the record supports the district court’s determination

that Dr. Smock’s expert testimony was admissible: His testimony

was relevant and reliable, and he was qualified to opine on the

cause and manner of the victim’s death based on his extensive

medical experience.

C. Denial of Motion for a Mistrial

¶ 34 Feldman asserts that the district court abused its discretion

by denying defense counsel’s motion for a mistrial after the jury

heard inadmissible testimony. We disagree.

1. Additional Background

¶ 35 Before trial, the district court ruled that Linda Malman, the

victim’s aunt, could testify whether the victim had expressed “fears

about anything in the marriage” but could not testify that “she was

pretty sure [Feldman] threatened to kill [the victim].” In response to

17
the prosecutor’s question, “Did she ever express any fears about

[Feldman]?” at trial, however, Malman testified, “She told me that

when we had talked about her leaving and the options of, you

know, moving and whatnot, she chuckled and she said to me, ‘He’ll

kill me before he lets me leave.’”

¶ 36 Defense counsel objected to Malman’s testimony. The district

court sustained the objection and instructed the jury to disregard

Malman’s answer. Counsel then moved for a mistrial, which the

court denied. A juror later submitted a question asking whether

the victim had ever told Malman that Feldman was physically or

verbally abusive toward her, but the court did not ask Malman the

juror’s question.

2. Standard of Review and Applicable Law

¶ 37 We review a district court’s denial of a motion for a mistrial for

an abuse of discretion. People v. Rios, 2020 COA 2, ¶ 22, 463 P.3d

322, 328. “Because a mistrial is ‘the most drastic of remedies,’ it is

‘only warranted where the prejudice to the accused is too

substantial to be remedied by other means.’” Id. (quoting People v.

Abbott, 690 P.2d 1263, 1269 (Colo. 1984)).

18
¶ 38 “Factors relevant in considering whether a mistrial should be

declared include the nature of the inadmissible evidence, the weight

of the admissible evidence of guilt, and the value of a cautionary

instruction.” People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009),

aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).

3. Analysis

¶ 39 We perceive no abuse of discretion in the district court’s

refusal to grant defense counsel’s motion for a mistrial based on

Malman’s testimony. Though inadmissible, her testimony did not

warrant a mistrial for three reasons.

¶ 40 First, as the district court noted, Malman’s use of the word

“chuckled” put her testimony in “a different light.” By testifying

that the victim chuckled when she said that Feldman would kill her

before letting her leave the marriage, Malman suggested the victim

was not serious. The statement was also fleeting; neither the

prosecutor nor defense counsel referred to it (or to any other portion

of Malman’s testimony) during closing argument. See People v.

Perez, 2024 COA 94, ¶ 47, ___ P.3d ___, ___.

¶ 41 Second, it does not appear that the prosecution intentionally

elicited Malman’s statement. To be sure, the prosecutor asked

19
Malman what the victim had said about her fears of Feldman. The

district court, however, had previously ruled that the prosecutor

could ask Malman about the victim’s fears of Feldman. The

prosecutor also told the court during defense counsel’s motion for a

mistrial that she had warned Malman before trial that the

statement at issue would not be admissible. Cf. People v. Dist. Ct.,

767 P.2d 239, 241 (Colo. 1989) (“When a prosecuting attorney

purposefully exposes the jury to inadmissible and highly prejudicial

evidence, [her] conduct will not be condoned, and a new trial will be

granted.”); People v. Goldsberry, 509 P.2d 801, 804 (Colo. 1973)

(same).

¶ 42 Third, the district court’s curative instruction sufficiently

remedied any error in the jurors’ hearing Malman’s statement. See

Vigil v. People, 731 P.2d 713, 716 (Colo. 1987) (“Generally, an error

in the admission of evidence may be cured by withdrawing the

evidence from the jury’s consideration and instructing the jury to

disregard it.”). Absent evidence to the contrary, we must presume

that the jury followed that instruction. See Qwest Servs. Corp. v.

Blood, 252 P.3d 1071, 1088 (Colo. 2011). To the extent Feldman

argues that the jury did not follow the court’s instruction because

20
one juror submitted a question about whether Feldman had

emotionally or physically abused the victim, we reject his argument.

Only one juror submitted a question on this topic, and the juror

may have submitted it in response to Malman’s earlier statement

that the victim and Feldman had fought during their marriage.

Defense counsel did not object to that statement at trial, and

Feldman does not challenge its admissibility on appeal. Moreover,

the court went beyond instructing the jury to disregard the

inadmissible testimony by precluding the prosecutor from asking

Malman additional questions about whether the victim had felt

afraid of Feldman emotionally and physically and whether Feldman

had bullied the victim — questions the court had previously found

permissible.

D. Character Evidence

¶ 43 Feldman asserts that the district court abused its discretion

by admitting improper testimony about his character. Again, we

disagree.

1. Additional Background

¶ 44 Before trial, the district court ruled that Ben Smith, Feldman’s

close friend and neighbor, could testify about Feldman’s allegedly

21
disingenuous expressions of emotions and comments regarding the

victim’s ailing health as evidence of motive and intent, provided he

had personal knowledge and did not use the words “faking” or

“lying.”

¶ 45 At trial, Smith testified that he and Feldman went to a bar the

week before the victim died. When Smith asked Feldman how the

victim was doing and what was making her so sick, Feldman “would

do the teary-eyed and crack his voice and say how dire the situation

is.” When a third person showed up, Feldman “instantly snapped

out of that” and acted normally, and “it wasn’t until we left the bar

that he went back” to how he had been acting before the third

person showed up. Smith testified, “I did get the feeling something

was really wrong, very bad, and . . . I just felt like that night I was

— something bad was going to happen, and I was going to be, like,

an alibi.” He also testified that he “had a bad feeling” and felt

“guilty . . . . Like I could have done something.” Defense counsel

objected to these statements and moved for a mistrial, but the court

overruled the objection and denied the mistrial motion.

22
2. Standard of Review

¶ 46 As noted, we review a district court’s evidentiary rulings for an

abuse of discretion. People v. Knapp, 2020 COA 107, ¶ 31, 487

P.3d 1243, 1252.

3. Analysis

¶ 47 We reject Feldman’s contention that Smith’s testimony about

Feldman’s feigned emotions the week before the victim died

constituted improper character evidence. Although evidence of a

person’s character generally is not admissible to prove that the

person acted in conformity with a given character trait on a

particular occasion, CRE 404(a), “a lay witness may give a summary

opinion of another person’s behavior, motivation, intent, or state of

mind if . . . [the] witness has personally observed the physical

activity of another, and summarizes his ‘sensory impressions

thereof.’” People v. Acosta, 2014 COA 82, ¶ 33, 338 P.3d 472, 479

(quoting People v. Farley, 712 P.2d 1116, 1119 (Colo. App. 1985));

see CRE 701. That is what occurred in this case: The prosecution

laid a sufficient foundation that Smith had personally observed

Feldman’s behavior and that Smith knew Feldman well enough to

characterize his expressions of emotions and comments about the

23
victim’s ailing health as disingenuous. See Acosta, ¶¶ 26, 45-47,

338 P.3d at 478, 481 (a witness’s statement that the defendant was

“very guilty-looking” was a proper, admissible lay opinion); cf.

Howard-Walker v. People, 2019 CO 69, ¶ 34, 443 P.3d 1007, 1013

(a detective’s testimony about why he thought the defendant’s

girlfriend had been crying was improper because he lacked personal

knowledge).

¶ 48 Nor are we persuaded that Liggett v. People, 135 P.3d 725

(Colo. 2006), on which Feldman relies, requires a different

conclusion. In Liggett, the Colorado Supreme Court held that a

prosecutor may not ask a witness to comment on the veracity of

others by asking a “were they lying” type of question. Id. at 733.

Here, by contrast, the prosecutor did not ask Smith whether

Feldman had lied when discussing the victim’s health; the

prosecutor merely asked Smith to characterize Feldman’s

demeanor, which was relevant to prove motive and intent. See

People v. Jones, 907 P.2d 667, 669 (Colo. App. 1995) (“A lay witness

may state an opinion about another person’s motivation or intent

only if the witness had sufficient opportunity to observe the person

24
and to draw a rational conclusion about the person’s state of

mind . . . .”).

¶ 49 In addition, Feldman offers no supporting authority for his

challenge to the admission of Smith’s statements that he felt guilty

and was being used as an alibi. In any event, the statements were

not unduly prejudicial, as they were only a small part of Feldman’s

trial. Indeed, the prosecutor’s closing argument did not reference

any portions of Smith’s testimony that Feldman challenges on

appeal.

E. Cumulative Error

¶ 50 Because we have not found any errors, the cumulative error

doctrine does not apply. See Shanks, ¶ 76, 467 P.3d at 1245.

III. Disposition

¶ 51 The judgment of conviction is affirmed.

JUDGE LIPINSKY and JUDGE SULLIVAN concur.

25