Peo v. Salazar

21CA0949 Peo v Salazar 10-17-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0949
Jefferson County District Court No. 20CR973
Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Raymond Jose Salazar,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE KUHN
Freyre and Yun, JJ., concur

Prior Opinion Announced October 12, 2023, Vacated in 23SC824

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 17, 2024

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Raymond Jose Salazar, appeals the judgment of

conviction entered upon a jury verdict finding him guilty of second

degree kidnapping, reckless driving, and reckless endangerment.

Salazar also appeals the trial court’s order adjudicating him a

habitual domestic violence offender under section 18-6-801(7),

C.R.S. 2024. We affirm.

I. Background

¶2 One morning, Salazar’s ex-partner and the mother of his four

children, C.R. (the victim), was preparing to take their daughter to

school in Lakewood and then to go to Aurora where she was

attending nursing school. The victim went outside to warm up the

car that she and Salazar still jointly owned. While the car was

running, the victim briefly returned to the house to get backpacks

and other school items she and her daughter needed that day. On

the way out, the victim saw Salazar in the driver’s seat.

¶3 Salazar told the victim that he wanted to drive her and their

daughter to their respective schools. The victim initially declined,

but after a brief argument, she decided to let him drive.

¶4 After dropping off their daughter at school, Salazar’s attitude

toward the victim changed. He started accusing her of cheating on

1
him, and instead of taking her to nursing school in Aurora — as

initially promised — Salazar drove them toward Wheat Ridge where

he believed the person she was cheating on him with lived.

¶5 On the way there, Salazar became increasingly aggressive. He

was speeding and weaving through traffic. The victim testified at

trial that Salazar incessantly accused her of infidelity, called her a

“bitch” and “whore” on several occasions, and threatened to “punch

[her] in the mouth” if she wouldn’t tell him the truth about who she

had been seeing.

¶6 The victim repeatedly pleaded with Salazar to pull over and let

her out of the car. Salazar refused and told her that she’s “not

going anywhere until [she] tell[s] him the truth.” The victim then

attempted to jump out of the car on two occasions. Her first

attempt failed because Salazar grabbed her and forced her back

into the car. But the victim managed to escape when Salazar

stopped in traffic. She ran to the parking lot of a nearby truck

dealership and hid among the trucks while Salazar looked for her.

She called 911 and told the operator what had happened to her.

¶7 A Wheat Ridge police officer responded to the scene. The

victim said that Salazar had kidnapped her and that he had stolen

2
her car. A few days later, however, the victim talked to other

officers from the Wheat Ridge and Denver Police Departments. In

those conversations, she recanted and said she had lied about the

kidnapping and that she didn’t want to press charges against

Salazar.

¶8 The District Attorney’s Office (DA’s Office) in Denver declined

to prosecute Salazar. But the Jefferson County DA’s Office charged

Salazar with second degree kidnapping, criminal mischief, reckless

driving, reckless endangerment, and domestic violence — habitual

offender. At trial, the victim testified consistently with her original

account of the incident. The jury acquitted Salazar of criminal

mischief but convicted him of felony second degree kidnapping,

reckless driving, and reckless endangerment. It also found that the

second degree kidnapping and reckless endangerment convictions

included acts of domestic violence. And because Salazar had three

prior domestic violence convictions, the court adjudicated him a

habitual domestic violence offender under section 18-6-801(7).

¶9 The court sentenced Salazar to six years in the custody of the

Colorado Department of Corrections for the kidnapping conviction

and habitual domestic violence offender adjudication and to

3
concurrent ninety-day jail sentences for the reckless driving and

reckless endangerment convictions.

II. Analysis

¶ 10 Salazar contends that the trial court reversibly erred in five

distinct ways, by (1) denying his for-cause challenge to a juror;

(2) permitting the prosecutor to commit misconduct by referring to

a pretrial screening process during voir dire and eliciting screening

testimony from a police officer at trial; (3) admitting that officer’s

testimony; (4) incorrectly defining “seized and carried” in the jury

instruction for second degree kidnapping; and (5) admitting police

officer testimony on the frequency of victim recantation in domestic

violence cases as lay witness testimony. We disagree with each of

these contentions.

A. For-Cause Challenge to Juror S

¶ 11 Salazar argues first that the trial court abused its discretion

by denying his for-cause challenge to Juror S. We disagree.

1. Additional Background

¶ 12 During voir dire, Juror S disclosed that she had been a victim

of domestic violence over four decades ago. She told defense

counsel that Salazar’s case “stirred up a lot of memories” and

4
negative flashbacks “that [she] would . . . rather not remember.” In

light of this statement, counsel inquired further:

[DEFENSE COUNSEL]: . . . And knowing that
Mr. Salazar has been charged with domestic
violence, how do you feel about that today?

[JUROR S]: That’s questionable. I’ve been
thinking about that all morning. I don’t know.
I would really feel better hearing both sides of
the story.

....

[DEFENSE COUNSEL]: Okay. And if you hear
allegations of domestic violence, are you going
to automatically believe them?

[JUROR S]: Yes, I would.

[DEFENSE COUNSEL]: Okay. And if you don’t
hear from Mr. Salazar or from [defense
counsel], is that going to be difficult for you
not hearing both sides of the story?

[JUROR S]: For me, it would be.

[DEFENSE COUNSEL]: Okay. Tell me why you
feel that way.

[JUROR S]: Well, having been in that situation
myself, I would feel better if I knew why, you
know, what the situation was. Hopefully it
was only one time. In my case, it was much
more than one time. So what brought it on?
Why?

[DEFENSE COUNSEL]: Okay. And if you don’t
hear that why or hear from Mr. Salazar his

5
side of the story, what are you going to be
thinking?

[JUROR S]: It would be his choice.

In response to defense counsel’s question whether she “fe[lt] like

[she] could be a fair and impartial juror,” Juror S said that she

“would try,” but she admitted that it “would probably be difficult”

considering her history with domestic violence.

¶ 13 The court continued the examination with a series of

rehabilitative questions:

THE COURT: . . . And so you used the words
“try to be fair.” What do you mean by that?

[JUROR S]: I would do my best to try to
understand. I don’t know.

....

[JUROR S]: I’m not sure how to answer that,
sir.

THE COURT: Well, it’s a difficult phrase, so let
me try asking a couple other questions. Who
has the burden of proof in this case?

[JUROR S]: In this case, the prosecutor does.

THE COURT: Okay . . . what is the burden of
proof?

....

6
[JUROR S]: Well, I’m taking that they are
trying to prove that he did these things wrong.

....

THE COURT: . . . Do you believe you
understand what beyond a reasonable doubt
means?

[JUROR S]: Yes. Yes.

THE COURT: And in your own words, can you
tell me what beyond a reasonable doubt
means?

[JUROR S]: You are positive, you are
absolutely sure one way or another.

THE COURT: Okay. And in terms of the
defendant in this case, what does he have to
do in this case as the case heads to trial?
Does he have to do anything?

[JUROR S]: I don’t know.

THE COURT: Does [the defendant] have to
testify?

[JUROR S]: He doesn’t have to. It would be his
choice.

THE COURT: Okay. And if he chooses not to
testify, do you believe you would hold that
against him?

[JUROR S]: Possibly.

THE COURT: Okay. What do you mean by
possibly?

7
[JUROR S]: Because . . . I would feel like I
would need to know his reasoning for what
happened on his side.

The prosecutor then took over the rehabilitation:

[THE PROSECUTOR]: [Juror S], do you think
you could follow the law in this case that’s
presented to you by the judge?

[JUROR S]: Sure.

[THE PROSECUTOR]: Okay. Do you think
that -- the judge said the defendant doesn’t
have to testify, that it is the prosecution’s
burden to prove beyond a reasonable doubt,
that you can just evaluate the evidence the
People present and whether we have proven
[Salazar’s guilt] beyond a reasonable doubt?

[JUROR S]: Yeah.

¶ 14 Juror S’s voir dire concluded with defense counsel asking her

additional questions about the defendant’s constitutional right not

to testify and her ability to follow the law:

[DEFENSE COUNSEL]: . . . So when you said
that you would possibly hold it against
[Salazar], tell me a little bit about that.

[JUROR S]: Do you mean him not testifying?

[DEFENSE COUNSEL]: Yes.

[JUROR S]: Well, I would like -- I know it’s his
choice, but I would feel better making a
decision if I heard from him.

8
[DEFENSE COUNSEL]: Okay. And it sounds
like, based on your prior experiences, that
hearing both sides is important to you?

[JUROR S]: Yes, ma’am.

[DEFENSE COUNSEL]: Okay. And I know that
you understand the law. . . . But even
understanding that law, it’s still sometimes
difficult to follow based on your experiences
and your personal kind of opinion. Is that
kind of what’s going on for you?

[JUROR S]: Yes.

¶ 15 Defense counsel moved the court to strike Juror S for cause.

Counsel argued that Juror S would not be a fair and impartial juror

because she would possibly hold it against Salazar if he decided not

to testify and because she evinced uncertainty in her ability to

follow the law. The court denied this challenge, and Juror S

eventually served on the jury.

2. Standard of Review and Applicable Law

¶ 16 Both the United States and Colorado Constitutions guarantee

criminal defendants the right to a trial by an impartial jury. U.S.

Const. amends. VI, XIV; Colo. Const. art. II, § 16. To ensure this

right, a trial court must excuse biased or prejudiced persons from

the jury. People v. Young, 16 P.3d 821, 824 (Colo. 2001).

9
¶ 17 In Colorado, this requirement is codified in section

16-10-103(1)(j), C.R.S. 2024, which provides that a trial court must

sustain a challenge for cause if “the juror evince[s] enmity or bias

toward the defendant or the state.” The statute, however, carves

out an exception to this general rule:

[N]o person summoned as a juror shall be
disqualified by reason of a previously formed
or expressed opinion with reference to the guilt
or innocence of the accused, if the court is
satisfied, from the examination of the juror or
from other evidence, that [the juror] will render
an impartial verdict according to the law and
the evidence submitted to the jury at the trial.

Id. This means that a potential juror who previously expressed bias

against a defendant may still serve on the jury if the trial court is

satisfied — after conducting rehabilitative questioning — that the

juror can fairly and impartially serve on the case. See People v.

Lopez, 2018 COA 119, ¶ 8.

¶ 18 We review a trial court’s denial of a challenge for cause for an

abuse of discretion. Carrillo v. People, 974 P.2d 478, 485 (Colo.

1999). In doing so, we accord great deference to the trial court’s

handling of challenges for cause because the court is in a superior

position to assess the juror’s credibility, demeanor, and sincerity in

10
explaining her state of mind. Morrison v. People, 19 P.3d 668, 672

(Colo. 2000). We must therefore affirm as long as the trial court’s

decision fell within a range of reasonable options. Vigil v. People,

2019 CO 105, ¶ 14.

3. The Trial Court Didn’t Err by
Denying the Challenge for Cause

¶ 19 Salazar centers his challenge to the trial court’s decision on

Juror S’s final position. Specifically, he asserts that Juror S wasn’t

properly rehabilitated because, even after rehabilitative questioning,

she (1) said that she “would try” to be fair, though she couldn’t

guarantee it; and (2) maintained that she would possibly hold it

against Salazar if he decided not to testify. Salazar concludes that

because Juror S remained equivocal about her ability to serve fairly

and impartially, the trial court abused its discretion by denying his

for-cause challenge.

¶ 20 In essence, Salazar claims that the juror’s ambiguous

responses were sufficient evidence of bias supporting her exclusion.

But we review the trial court’s decision for an abuse of discretion.

Under that standard, the question for us is not whether the trial

record would have supported a decision to grant the challenge for

11
cause or whether we would have granted the challenge. People v.

Vigil, 2015 COA 88M, ¶ 10, aff’d, 2019 CO 105. Rather, the

question is whether the record compelled the trial court to grant the

challenge. Id. And where a juror’s responses are only equivocal but

do not articulate a clear expression of bias, the trial court is not

compelled to strike the juror. Id. at ¶ 11.

¶ 21 While we acknowledge that this is a close case, we conclude

that Juror S didn’t clearly evince bias during voir dire. To start, she

admitted right out of the gate that she had been a victim of

domestic violence and added that she believed that she could be fair

to both sides. True, she later told defense counsel that she “would

try” to be fair to both sides, and that “would probably be difficult”

considering her personal experience with domestic violence. But

she never unequivocally said that she couldn’t be fair or impartial

to Salazar. In response to the court’s question to clarify what she

meant by saying that she “would try” to be fair, Juror S said that

she “would do [her] best to try to understand.”

¶ 22 We agree that Juror S’s commitment to fair and impartial

service could have been expressed in a clearer way. And she did

say that she would “possibly” hold it against Salazar if he decided

12
not to testify. But we also note that her final position didn’t convey

a clear message of bias. At most, she remained uncertain about

how her own personal experience with domestic violence would

impact her jury service, and she expressed that she would like to

understand both sides of the story.

¶ 23 As we already noted, a trial court doesn’t abuse its discretion

by denying a challenge for cause on an ambiguous record. Id.; see

Carrillo, 974 P.2d at 488 (affirming the trial court’s denial of a

challenge for cause where the juror’s answers were ambiguous but

didn’t amount to a clear expression of bias); cf. Nailor v. People, 612

P.2d 79, 80 (Colo. 1980) (holding that the trial court abused its

discretion by denying a challenge for cause where the juror plainly

said that she couldn’t be fair). And in the absence of clear bias, we

defer to the court’s following findings, made after the court had the

opportunity to evaluate Juror S’s demeanor, tone, and credibility:

I understand the defense’s concern. I think
[Juror S] -- her demeanor was certainly one,
frankly, I think she could be easily persuaded
either way. She appeared to be the sort of
juror who I think could be easily persuaded
either way, and while she did use some very
noncommittal language, such as “try” or
“possibly,” she is able to identify the burden,
she is able to identify the rights and articulate

13
that she wouldn’t hold them against either
side, and the Court cannot find a basis for
challenge for cause as to [Juror S].

See Carrillo, 974 P.2d at 486; see also Young, 16 P.3d at 825-26 (“If

the juror’s recorded responses are unclear[,] only the trial court can

assess accurately the juror’s intent from the juror’s tone of voice,

facial expressions, and general demeanor.”).

¶ 24 We therefore conclude that, under these circumstances, the

trial court didn’t abuse its discretion by denying Salazar’s for-cause

challenge to Juror S.

B. Prosecutorial Misconduct Claims

¶ 25 Salazar next claims that the prosecutor engaged in reversible

misconduct by introducing improper screening evidence during

(1) voir dire and (2) the detective’s testimony. He likewise contends

that the detective’s testimony was inadmissible. We perceive no

reversible error.

1. Standard of Review and Applicable Law

¶ 26 When probable cause is not an issue at trial, it’s generally

improper to present evidence about charging decisions. People v.

Mendenhall, 2015 COA 107M, ¶ 62. That’s so because this

“screening” evidence may suggest that (1) only guilty parties are

14
charged with crimes and thus the defendant must be guilty;

(2) there is additional evidence supporting the defendant’s guilt that

is unknown to the jury; and (3) the prosecutor personally believes

in the defendant’s guilt. See Domingo-Gomez v. People, 125 P.3d

1043, 1052 (Colo. 2005); Mendenhall, ¶ 62.

¶ 27 We use a two-step analysis to review prosecutorial misconduct

claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First,

we evaluate whether the prosecutor’s conduct was improper under

the totality of the circumstances. Id.; see also People v. McMinn,

2013 COA 94, ¶ 60. Second, if it was, we determine whether the

misconduct requires reversal under the applicable standard of

review. Wend, 235 P.3d at 1089; People v. Robinson, 2019 CO 102,

¶ 18.

¶ 28 Because Salazar didn’t object to the asserted misconduct at

trial, we review his claims for plain error. Robinson, ¶ 19. Under

this standard, we will reverse only when an error was obvious,

substantial, and so undermined the fundamental fairness of the

trial that it casts serious doubt on the reliability of the judgment of

conviction. Hagos v. People, 2012 CO 63, ¶ 14. Prosecutorial

misconduct is plain error only if it is flagrantly, glaringly, or

15
tremendously improper. Domingo-Gomez, 125 P.3d at 1053. And

prosecutorial misconduct rarely constitutes plain error. People v.

Carter, 2015 COA 24M-2, ¶ 53.

2. Voir Dire

¶ 29 Salazar first argues that the prosecutor engaged in reversible

misconduct during voir dire. We disagree.

¶ 30 During questioning, the prosecutor asked the prospective

jurors about their thoughts on the State pressing charges for

domestic violence. For example, the prosecutor engaged in the

following exchange with one juror.

[PROSECUTOR]: And domestic violence
usually happens in the home, so do you think
police should be involved?

[PROSPECTIVE JUROR]: Do I think they
should be involved? I think if someone can get
involved, it’s hard to stop something like that.
You can’t see into somebody else’s home.
Someone who is kind of an impartial outsider
should be involved if that’s helpful.

[PROSECUTOR]: And have you ever heard
of . . . someone saying pressing charges or
dropping charges?

[PROSPECTIVE JUROR]: Yes.

[PROSECUTOR]: And what do you think about
when you hear that?

16
[PROSPECTIVE JUROR]: Pressing charges, you
are going through with an allegation. And
dropping charges, you want it to all go away,
for the police or the law to stop being involved.

[PROSECUTOR]: And do you understand that
it’s the State and not the victim that decides
whether to press charges or drop charges?

[PROSPECTIVE JUROR]: I did not know that. I
wasn’t really sure if the victim had anything to
do with it.

¶ 31 The prosecutor asked similar questions of a number of other

potential jurors.

¶ 32 Salazar contends that these questions were improper because

“the prosecutor impermissibly told the jury that the State

determined that charges were appropriate and thus implied that

Mr. Salazar must be guilty.” We disagree. The prosecutor’s

questions generally were preceded by questions about the jurors’

opinions on whether police should be involved in domestic disputes.

Further, this case involved a victim who recanted and then asked

the police not to pursue charges against Salazar. In this context,

we discern no misconduct in the prosecutor’s attempt to determine

the jurors’ views on the prosecution pursuing domestic violence

17
charges against the victim’s wishes. Thus, we disagree that the

prosecutor’s questions constituted misconduct.

¶ 33 Further, we note that the prosecutor’s references to the State’s

involvement in bringing charges were brief and bare bones. The

prosecutor did not discuss the charging decision process or what

must be established before charges are brought. Instead, the

discussions were limited to explaining that the prosecution, and not

the victim, makes the charging decision. We see nothing improper,

let alone plainly so, in this questioning.

3. Detective’s Testimony on Probable Cause

¶ 34 Salazar argues next that the prosecutor introduced improper

screening evidence during the examination of a police officer. While

we agree with Salazar that some of the prosecutor’s conduct was

improper, we conclude that the error wasn’t plain.

a. Additional Background

¶ 35 Detective Mark Slavsky, the lead investigator on the case,

testified at trial. During cross-examination, defense counsel

highlighted that, except for the victim’s inculpatory statements on

the day of the incident — which she recanted a few days later — the

18
detective’s investigation didn’t yield any concrete evidence tying

Salazar to the crimes.

¶ 36 On redirect examination, the prosecutor elicited the following

testimony:

[PROSECUTOR]: [D]id you contact [the] Denver
[DA’s Office]?

[DETECTIVE SLAVSKY]: I did.

[PROSECUTOR]: And after you contacted
Denver, did they tell you if they were going to
file charges or not?

[DETECTIVE SLAVSKY]: They told me that
they were not.

[PROSECUTOR]: And did you still proceed to
present this case to the [Jefferson County]
DA’s office?

[DETECTIVE SLAVSKY]: I did.

....

[PROSECUTOR]: And why did you present it to
the DA’s office?

....

[DETECTIVE SLAVSKY]: It is a domestic
violence crime, and there was probable cause
to believe that Mr. Salazar had committed the
crime, and state statutes say that if I have
probable cause on a domestic violence crime,
that I will make an arrest or obtain an arrest
warrant for that individual.

19
[PROSECUTOR]: So even though [the victim]
said she lied, you still believed that you had
probable cause?

[DETECTIVE SLAVSKY]: There were other
reasons to believe probable cause existed.

b. Analysis

¶ 37 Salazar contends that the prosecutor engaged in misconduct

by eliciting responses from the detective regarding the existence of

probable cause for his arrest because such testimony constituted

improper “screening process” testimony. We agree with Salazar that

the testimony was improper, but we conclude that the error wasn’t

plain.

¶ 38 As already noted, a prosecutor’s references to a “pretrial

screening process” are improper to the extent that they reveal the

prosecutor’s personal opinion or hint that additional evidence

supporting the defendant’s guilt exists. The colloquy on redirect did

just that. The detective’s testimony that even though the victim

lied, “[t]here were other reasons to believe probable cause existed”

told the jury that the detective — and by extension the

prosecutor — had additional evidence of Salazar’s guilt.

20
¶ 39 We therefore conclude that the detective’s testimony — and

the prosecutor’s last question in particular — was improper.

Nevertheless, we conclude that the error wasn’t plain.

¶ 40 The testimony, when viewed in context, didn’t so undermine

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

on the reliability of the judgment of conviction. Nor was it

flagrantly, glaringly, or tremendously improper. The references to

probable cause were brief and fleeting when compared to the

entirety of the detective’s testimony. They were limited to two

questions, the prosecutor didn’t ask any follow up questions after

the detective answered that “[t]here were other reasons to believe

probable cause existed,” and there is no indication that the

prosecutor referred to probable cause during closing argument or at

any other point during the trial. See Domingo-Gomez, 125 P.3d at

1053 (“Comments that were ‘few in number, momentary in length,

and were a very small part of a rather prosaic summation’ do not

warrant reversal under the plain error standard.” (quoting People v.

Mason, 643 P.2d 745, 753 (Colo. 1982))); People v. Sommers, 200

P.3d 1089, 1097 (Colo. App. 2008) (concluding that the prosecutor

21
didn’t engage in misconduct where he didn’t refer to the challenged

statements in closing argument).

¶ 41 We therefore conclude that the trial court didn’t plainly err by

allowing the prosecutor to elicit improper screening process

testimony from the detective.

4. Admissibility of the Detective’s Screening Testimony

¶ 42 Salazar also challenges Detective Slavsky’s testimony

regarding the existence of probable cause on evidentiary grounds.

While we agree that the testimony was inadmissible, we conclude

that the error is not reversible.

¶ 43 We conclude that Detective Slavsky’s screening testimony

wasn’t relevant and it shouldn’t have been admitted. See CRE 401

(“‘Relevant evidence’ means evidence having any tendency to make

the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”); CRE 402 (“Evidence which is not relevant is

not admissible.”). When probable cause to charge a defendant is

not at issue — and it wasn’t here — then evidence about probable

cause to file charges is irrelevant because it has no rational

22
tendency to make it more probable that the defendant committed

the charged crime. Mendenhall, ¶ 62.

¶ 44 The People contend that the testimony was relevant because

“the tenor of the defense was that the prosecution had no case once

the victim supposedly recanted,” and the testimony “helped to

dispel the insinuation that the detective was unreasonably pursuing

a case against [Salazar].” While we agree with the People that

defense counsel’s cross-examination implied that the prosecution’s

case against Salazar was weak, we disagree that this examination

opened the door for the detective’s testimony about probable cause.

The prosecution was entitled to rehabilitate its witness regarding

the investigation, but testimony about probable cause to bring

charges and the insinuation that there were additional reasons for

doing so were not relevant to the question of Salazar’s guilt. It was

therefore inadmissible.

¶ 45 However, we again conclude that any error doesn’t warrant

reversal.

¶ 46 Parts of the testimony that Salazar now challenges were not

preserved and are reviewed for plain error. People v. Arzabala, 2012

COA 99, ¶ 83. Those portions that were preserved are reviewed for

23
harmless error. An error in the admission of evidence is harmless

if, when viewed in light of the entire trial record, it didn’t

substantially influence the verdict or affect the fairness of the trial

proceedings. People v. Delsordo, 2014 COA 174, ¶ 7. In contrast,

an error is plain if it is obvious, substantial, and so undermines the

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

reliability of the judgment of conviction. Hagos, ¶ 14.

¶ 47 We conclude that the error in admitting the detective’s

testimony is not reversible under either the plain error or harmless

error standard.1 As noted, Detective Slavsky’s statements were

brief and constituted a very small part of his entire testimony —

and an even smaller part of the roughly 640-page transcript from

the three-day trial. Mendenhall, ¶ 69 (concluding that the screening

testimony was harmless because it was brief and constituted a

1 Salazar stated in his opening brief that this claim wasn’t preserved

during trial. But his trial counsel did object to the prosecutor’s
question “[a]nd why did you present [this case] to the DA’s office.”
Thus, the relevance challenge to that question was preserved and
we review it for harmless error. People v. Montoya, 2022 COA 55M,
¶ 34, aff’d in part and rev’d in part, 2024 CO 20; People v. Tallent,
2021 CO 68, ¶ 11 (stating that appellate courts have “an
independent, affirmative duty to determine whether a claim is
preserved and what standard of review should apply”).

24
small part of the witness’s entire testimony). Additionally, the

prosecutor didn’t reference the statements at any other point during

the trial — including closing argument — or indicate in any way

that the fact that the charges were brought after the case was

screened meant that Salazar was guilty. Id.; cf. People v. Mullins,

104 P.3d 299, 302 (Colo. App. 2004) (concluding that the trial court

plainly erred by admitting screening testimony where, among other

things, the prosecutor referred to the testimony in closing

argument).

¶ 48 Under these circumstances, we conclude that the trial court

didn’t reversibly err by admitting Detective Slavsky’s screening

testimony.

C. The Kidnapping Instruction
Wasn’t Plainly Erroneous

¶ 49 Salazar next contends that the trial court reversibly erred by

incorrectly instructing the jury on the elements of second degree

kidnapping. Specifically, he contends that the court’s definition of

“seized and carried” as “any movement, however short in distance”

was plainly erroneous. The People concede that this definition was

legally erroneous but argue that reversal is not required because

25
the error wasn’t obvious. Given our supreme court’s recent case

law, we agree with the People.

¶ 50 According to section 18-3-302(1), C.R.S. 2024, a defendant is

guilty of second degree kidnapping if he “knowingly seizes and

carries a person from one place to another, without the person’s

consent and without lawful justification.” Although the elemental

instruction correctly listed the elements, a separate definitional

instruction stated that “[s]eized and [c]arried means any movement,

however short in distance.”

¶ 51 In February 2022, the supreme court held that such an

instruction is erroneous because it (1) eliminates the seizure

requirement and (2) improperly changes the meaning of the

asportation requirement from carrying a person from one place to

another to “any movement, however short in distance.” Garcia v.

People, 2022 CO 6, ¶¶ 25, 27, 29, 35. In light of Garcia, and

reviewing the jury instruction de novo, People v. Espinosa, 2020

COA 63, ¶ 8, we agree with both parties that the trial court’s

definitional instruction was erroneous under current precedent.

¶ 52 We also agree with the parties that this issue wasn’t preserved

at trial. We review unpreserved errors for plain error and reverse

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only if the error is both obvious and substantial, such that it so

undermined the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction. Hagos, ¶ 14.

To qualify as a plain error, an error generally has to be so obvious

that a trial judge can avoid it without the benefit of an objection.

Scott v. People, 2017 CO 16, ¶ 16. For this to be the case, an error

must usually “contravene (1) a clear statutory command; (2) a well-

settled legal principle; or (3) Colorado case law.” Id. (quoting People

v. Pollard, 2013 COA 31M, ¶ 40). In general, an error is not obvious

“when either [the supreme court] or a division of [our] court . . . has

previously rejected an argument being advanced by a subsequent

party who is asserting plain error.” Id. at ¶ 17. In that case, “the

trial judge is bound to follow the decisions of the appellate courts

and cannot generally be faulted for not departing from that

authority sua sponte.” Id.

¶ 53 Salazar argues that, in situations where the law changed

between the trial and appeal, we should look to the law at the time

of appeal to determine whether the error was obvious. For this

proposition, he cites People v. Crabtree, a case in which a division of

our court concluded that we look at the state of the law at the time

27
of appeal — and not the time of trial — to determine whether an

error was obvious. 2022 COA 73, ¶¶ 50-51, rev’d, 2024 CO 40M

(Crabtree I).

¶ 54 In Crabtree I, the division adopted the rule articulated by the

United States Supreme Court in Johnson v. United States, 520 U.S.

461 (1997). Crabtree I, ¶ 51. In that case, the Court said that

“where the law at the time of trial was settled and clearly contrary

to the law at the time of appeal[,] it is enough that an error be

‘plain’ at the time of appellate consideration.” Johnson, 520 U.S. at

468. So, the division in Crabtree I concluded, “Johnson governs

plain error review in Colorado when the applicable law was settled

at the time of trial but not when the applicable law was not settled

at the time of trial.” Crabtree I, ¶ 47. In doing so, the division

rejected the People’s argument that, under Scott, the obviousness of

an error must be evaluated at the time of trial instead of at the time

of appeal. Id. at 51. The division reasoned that Scott wasn’t

controlling on this issue in part because it didn’t squarely address

it. Id.

¶ 55 In our first opinion, we reversed Salazar’s kidnapping

conviction and remanded the matter for a new trial after concluding

28
that the trial court’s error in its definitional instruction was both

obvious and substantial. People v. Salazar, slip. op. at ¶ 61 (Colo.

App. No. 21CA0949, Oct. 12, 2023) (not published pursuant to

C.A.R. 35(e)). We relied on Scott, not Crabtree I or Johnson, to

conclude that the error was obvious. We said that

[r]egardless of whether Johnson applies, the
supreme court explicitly noted an exception to
the obviousness rule in Scott: when an
argument has been rejected by the supreme
court or our court, an error is not obvious
“subject to limited exceptions (e.g., intervening
authority from a higher court overruling prior
precedent).” Scott, ¶ 17.

Salazar, No. 21CA0949, slip op. at ¶ 55. We then observed that the

limited exception to the obviousness rule applied in this case

because the supreme court’s decision in Garcia constituted an

“intervening authority from a higher court overruling prior

precedent” that had upheld the now erroneous instruction. Id. at

¶¶ 55-56.

¶ 56 But after we announced our first opinion, the supreme court

clarified the temporal limits of plain error review in People v.

Crabtree, 2024 CO 40M (Crabtree II). The court held that, under

Colorado law, an error is plain if it’s obvious at the time of trial, not

29
at the time of appeal. Id. at ¶ 53. In support of this holding, the

court observed that, “dating back to Scott, [the court has] explained

that plainness refers to how obvious or clear-cut an error is at the

time it is made.” Id. at ¶ 53-54 (collecting supreme court and court

of appeals cases that applied the time-of-trial rule). The court

therefore concluded that the Crabtree I division erred by relying on

Johnson to conclude that an error is obvious when settled law

changes during the pendency of a defendant’s appeal. Id. at ¶ 48.

¶ 57 After announcing Crabtree II, the supreme court granted the

People’s writ of certiorari. It vacated our first opinion and

remanded the case for us to reconsider in light of Crabtree II.

People v. Salazar, (Colo. No. 23SC824, Sept. 3, 2024) (unpublished

order).

¶ 58 Consistent with Crabtree II, we now conclude that the

instructional error here wasn’t plain because it wasn’t obvious at

the time of Salazar’s trial. As Salazar himself points out — and as

we note above — at least three published opinions from divisions of

this court had upheld the challenged jury instruction before the

trial court gave it during Salazar’s trial. See People v. Owens, 97

P.3d 227, 237 (Colo. App. 2004), overruled by Garcia, 2022 CO 6;

30
People v. Rogers, 220 P.3d 931, 936-37 (Colo. App. 2008), overruled

by Garcia, 2022 CO 6; People v. Bondsteel, 2015 COA 165, ¶¶ 109,

116, 118, aff’d, 2019 CO 26, and overruled by Garcia, 2022 CO 6.

Thus, at the time of trial, no clear statutory command, well-settled

legal principle, or Colorado case law would have alerted the court

that the definition of “seized and carried” as “any movement,

however short in distance,” was improper. See Scott, ¶ 17. And

even though the supreme court decided that this kind of instruction

is improper during the pendency of Salazar’s appeal, Crabtree II

requires us to look at the state of the law as it existed at the time of

the error, not the time of his appeal.

¶ 59 Accordingly, because the instructional error wasn’t obvious at

the time the trial court made it, the error wasn’t plain. See Crabtree

II, ¶ 53. And because Salazar doesn’t satisfy the first prong of plain

error review, the error here is not reversible. See id. at ¶¶ 41-43

(noting that an error is plain only if it’s both obvious and

substantial).

D. Improper Lay Witness Testimony Claim

¶ 60 Finally, Salazar contends that the trial court reversibly erred

by admitting, as a lay opinion, testimony from several police officers

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regarding the prevalence of victim recantation in domestic violence

cases. We perceive no reversible error.

1. Additional Background

¶ 61 On redirect examination of Detective Slavsky, the prosecutor

asked whether, “based on [his] experience,” he was “surprised” that

the victim had recanted her previous statements. Detective Slavsky

answered “not at all.”

¶ 62 The prosecutor asked a similar question of three police officers

who the defense had called to the stand as part of its case-in-chief.

During cross-examination, the prosecutor asked Officer Kristine

Caston and Corporal Jason Moore about their experience in

working with victims of domestic violence and whether it was

“common for them to recant their story” and then change it back to

the original account of the event. Officer Caston answered, “[Y]es, it

is,” whereas Corporal Moore said, “I would not say it’s common, but

I would also not say it’s rare,” “I have seen it before.” Finally, the

prosecutor asked Officer Joshua Huerta during cross-examination

whether the officer “[had] ever seen a domestic violence victim such

as this recant their story.” Officer Huerta said, “Not to this extent,”

32
but he noted that he had seen victims recant their story and then

change it back to the original account of the incident.

2. Standard of Review and Applicable Law

¶ 63 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Murphy, 2021 CO 22, ¶ 16. The court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair. Id. Whether the trial court abused its discretion in this

case turns on whether the police officers’ testimony constituted

improper lay opinion testimony under CRE 701. See People v.

Stewart, 55 P.3d 107, 122 (Colo. 2002), as modified on denial of

reh’g (Sept. 23), and modified on denial of reh’g (Oct. 15, 2002).

¶ 64 Under CRE 701, testimony is proper lay opinion testimony

when it is “(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue, and (c) not based on scientific,

technical, or other specialized knowledge within the scope of Rule

702.” In turn, CRE 702 provides that expert testimony is testimony

based on “scientific, technical, or other specialized knowledge [that]

will assist the trier of fact to understand the evidence or to

determine a fact in issue.”

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¶ 65 “[I]n determining whether testimony is lay testimony under

CRE 701 or expert testimony under CRE 702, the trial court must

look to the basis for the opinion.” Venalonzo v. People, 2017 CO 9,

¶ 23. “If the witness provides testimony that could be expected to

be based on an ordinary person’s experiences or knowledge, then

the witness is offering lay testimony.” Id. In contrast, expert

testimony is testimony that “goes beyond the realm of common

experience and requires experience, skills, or knowledge that the

ordinary person would not have.” Id. at ¶ 22.

3. The Trial Court Didn’t Reversibly Err by
Admitting the Officers’ Testimony

¶ 66 The People contend that CRE 701 doesn’t apply to Detective

Slavsky’s and Officer Huerta’s testimony because they were not

opinions. Instead, they simply relayed facts without conveying any

opinions. We agree on this record. Detective Slavsky testified that

he wasn’t surprised when the victim recanted, and Officer Huerta

testified that he had seen recantation before, though not to this

extent. Aside from conveying their reactions and observations, the

record doesn’t show that either officer expressed any “view,

judgment, or appraisal” as to their significance or meaning. See

34
People v. Warrick, 284 P.3d 139, 146 (Colo. App. 2011) (concluding

that a police officer’s testimony that a crime was a felony under a

statute wasn’t an opinion where the officer didn’t express any “view,

judgment, or appraisal” on the statute’s applicability or meaning).

¶ 67 However, we don’t agree with the People’s further contention

that Officer Caston’s and Corporal Moore’s statements were proper

lay opinions under Rule 701. The People argue that the cycle of

domestic violence has entered our pop culture and that it has

become a common occurrence in the lives of many people. Maybe

so. But in our view, opinions regarding the prevalence of domestic

violence victims’ recantation are still outside the purview of an

ordinary person’s knowledge and experience. Rather, such

observations are based on specialized knowledge and experience not

possessed by ordinary persons. See State v. Gonzalez, 834 A.2d

354, 358 (N.H. 2003) (“The tendency or frequency of sexual abuse

victims’ denials and recantations are not observations that any

layperson is capable of making, but rather require special

experience and knowledge not possessed by the public at large.”);

cf. People v. Johnson, 74 P.3d 349, 353 (Colo. App. 2002) (stating

35
that expert testimony on the frequency of victim recantation is

admissible in domestic violence cases).

¶ 68 We therefore conclude that because Officer Caston’s and

Corporal Moore’s statements were based on specialized knowledge,

they were not proper lay opinion testimony. But we also conclude

that any error in this regard is not reversible.

¶ 69 At trial, Salazar objected to Officer Caston’s testimony but

didn’t object to Corporal Moore’s statements. Thus, we review the

former statements for nonconstitutional harmless error, and the

latter for plain error. People v. Montoya, 2022 COA 55M, ¶ 34, aff’d

in part and rev’d in part, 2024 CO 20; Arzabala, ¶ 83. Reversal is

not required under either standard.

¶ 70 Although the victim recanted her original account of the event,

multiple other witnesses corroborated her story. See People v.

Daley, 2021 COA 85, ¶ 98 (concluding that the trial court’s error in

admitting testimony that bolstered the victim’s account of the

incident was harmless when proper corroboration was

accomplished through the testimony of several other witnesses).

Further, the improperly admitted statements were brief and,

combined, they covered about two pages of transcript from the

36
three-day trial. Id. (“The fact that improperly admitted testimony

was brief and fleeting supports a conclusion that it was harmless.”);

cf. People v. Garrison, 2017 COA 107, ¶ 59 (concluding that the trial

court’s error in admitting improper lay opinion wasn’t harmless

because the testimony wasn’t brief).

¶ 71 The record also shows that the statements were confined to

the two cross-examinations and that the prosecutor didn’t rely on

them either directly or indirectly in her closing argument. Marsh v.

People, 2017 CO 10M, ¶ 42. Finally, Salazar had the opportunity to

alleviate any prejudicial effect of the statements on rebuttal. See

People v. Ayala, 919 P.2d 830, 833 (Colo. App. 1995) (concluding

that the trial court’s error in admitting testimony was harmless

because the defendant had an opportunity to cross-examine the

witness).

¶ 72 Under these circumstances, we conclude that any error in

admitting Officer Caston’s and Corporal Moore’s improper lay

opinion testimony is not reversible.

III. Disposition

¶ 73 The judgment is affirmed.

JUDGE FREYRE and JUDGE YUN concur.

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