Peo v. Harrison

22CA0202 Peo v Harrison 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0202
Jefferson County District Court No. 20CR3510
Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Eugene Harrison,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Tow and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Philip J. Weiser, Attorney General, Lane Towery, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Robert Eugene Harrison, appeals the judgment of

conviction entered on jury verdicts finding him guilty of various

offenses arising out of a carjacking. We affirm.

I. Background

¶2 As two elderly sisters were pulling out of the driveway to go to

lunch, a perpetrator approached their car, forcibly removed each of

them from it, and struck them with the car as he drove away.

Neighbors called 911, and the sisters were taken to the hospital.

One suffered rib fractures, a partially collapsed lung, and bruising

to that lung. The other suffered a dislocated hip and what a

treating physician called a “significant laceration or wound” on her

leg. Once the sisters were released from the hospital, they were

admitted to a nursing home.

¶3 On each of the two days after the carjacking, there was a

police chase involving the stolen vehicle. On the first day after the

carjacking, officers pursued the vehicle but could not effect a stop.

On the second day, officers engaged in a longer and more

dangerous high-speed chase of the vehicle, stopped it, and arrested

Harrison, the driver.

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¶4 Harrison was charged with two counts of attempted first

degree extreme indifference murder, two counts of first degree

extreme indifference assault — at-risk person, two counts of

vehicular eluding, and various other counts. The jury found him

guilty of the attempted murder, assault, and vehicular eluding

counts, as well as most of the others. He was convicted and

sentenced accordingly.

¶5 Harrison appeals, arguing that the prosecutor committed

numerous instances of misconduct during opening statement and

closing argument and that the evidence was insufficient to support

one of the vehicular eluding counts. We conclude that none of

these arguments warrant relief.

II. Prosecutorial Misconduct

¶6 We evaluate allegations of prosecutorial misconduct using a

two-step analysis. First, we determine whether the conduct was

improper based on the totality of the circumstances. Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). Second, if the conduct

was improper, we determine whether the impropriety requires

reversal under the applicable standard. Id.

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¶7 When evaluating impropriety under the first step, we are

mindful that arguments delivered during trial are not always

perfectly scripted. People v. Samson, 2012 COA 167, ¶ 30.

Therefore, prosecutors have wide latitude in the language they use,

and we “accord prosecutors the benefit of the doubt when their

remarks are ambiguous or simply inartful.” Id.

¶8 Harrison alleges that there was pervasive misconduct in both

opening statement and closing argument that warrants reversal.

We conclude that none of the allegations warrant relief whether

considered individually or in the aggregate.

A. “Profound Selfishness”

¶9 Harrison argues that during the opening statement the

prosecutor’s repeated description of his conduct as exhibiting

“profound selfishness” was improper. He points out that

selfishness was not an element of any charged offense, and these

comments served only to attack his character and provoke an

emotional response from the jury. However, viewed in the context

of the entire opening statement, the prosecutor’s references to

Harrison’s selfishness were clearly connected to the elements of the

attempted murder and assault counts.

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¶ 10 The prosecutor posited that the extreme indifference required

for those counts is “generally understood to mean a total lack of

concern or caring. And that selfishness, that profound selfishness,

you’re going to see that . . . lack of caring, in the moments that he

walks down that street, in the moments he selects [the sisters] and

pulls them from that car.” Thus, the prosecutor’s repeated

references to Harrison’s profound selfishness were not a character

attack that played on the jury’s emotions. Instead, the prosecutor

described Harrison as selfish in order to communicate that he acted

without concern or caring for others — in other words, with extreme

indifference.

¶ 11 Recognizing this, Harrison argues that the prosecutor’s

statements were nevertheless improper because prosecutors are not

allowed to argue in an opening statement “that particular legal

standards were met.” As we understand it, Harrison argues that it

is improper for a prosecutor to explain during opening statement

how they will prove the elements of the charged offenses. But

Harrison offers no authority for this proposition, and we are aware

of none. We therefore reject this argument. See People v. Stone,

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2021 COA 104, ¶¶ 51-52 (declining to address argument presented

without supporting legal authority).

B. Characterizing the Sisters as “Easy Targets”

¶ 12 Harrison contends that the prosecution improperly

engendered sympathy for the victims by repeatedly characterizing

the sisters as “easy targets.” We disagree.

¶ 13 A prosecutor may comment on reasonable inferences

stemming directly from the facts in evidence. People v. Jamison,

2018 COA 121, ¶ 31. The evidence was clear that both sisters were

elderly. Moreover, their advanced age was directly related to the

offenses charged in this case, which included theft committed

against an at-risk victim. We therefore conclude that it was not

improper for the prosecutor to characterize the sisters as easy

targets.

C. Holding Harrison “Accountable”

¶ 14 Harrison next argues that it was misconduct for the

prosecutor to implore the jury during opening statement and

closing argument to hold him “accountable.” Harrison cites People

v. Buckner, 2022 COA 14, for the proposition that a prosecutor’s

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plea to hold a defendant accountable is improper. But that is not

what Buckner holds.

¶ 15 The statement at issue in Buckner was as follows: “[The

victim’s] day of justice is a long time coming. That’s today. Hold

[the defendant] accountable for what he did to that girl that night.”

Buckner, ¶ 41. The division held that this was improper because it

pressured “jurors to ‘do justice’ for a victim.” Id. at ¶ 42.

¶ 16 The prosecutor here did not argue that Harrison should be

held accountable to do justice for the sisters. Instead, all the

references to holding Harrison accountable were preceded by

summaries of the evidence that, according to the prosecutor, proved

Harrison committed the charged offenses. Thus, considered in

context, the prosecutor’s pleas to hold Harrison accountable were

exhortations to find him guilty because the evidence required it. As

such, the prosecutor’s references to accountability were not

improper. See People v. Tran, 2020 COA 99, ¶ 68 (Prosecutor’s plea

to hold the defendant accountable was not improper “because the

prosecutor made this comment immediately after arguing that the

evidence established [the defendant’s] guilt.”).

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D. Victim Impact Argument

¶ 17 Harrison argues that the prosecutor made various improper

statements about how the injuries the sisters suffered impacted

their lives. Most notably, the prosecution began its closing

argument as follows.

That date right there. That is the day that [the
sisters] lost their independence. That is the
day that it was taken from them by him. That
is the day, the last day, that they were able to
make plans on their own, wake up in their own
homes, and enjoy their retirement the way
they wanted to. That was taken because of his
selfishness.

The prosecutor repeated in closing that Harrison “stole [the sisters’]

independence.” And in the opening statement, the prosecutor said

that on the day of the carjacking, the sisters “didn’t know that their

lives were about to change forever.”

¶ 18 It was certainly proper for the prosecutor to argue that the

sisters’ injuries were sufficiently severe to qualify as serious bodily

injury. And serious bodily injury was defined in the jury

instructions as including “a substantial risk to protracted loss or

impairment of the function of any part or organ of the body.”

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Therefore, the prosecutor was free to argue that the sisters’ injuries

risked loss or impairment of body function.

¶ 19 But the prosecutor’s comments above seemed to go beyond

that. Rather than argue that the sisters’ injuries impaired the

functionality of their bodies, the prosecutor argued that the injuries

fundamentally and irreversibly impacted their quality of life. These

comments about impact to quality of life — beyond mere body

functionality — were improper. They were not related to the

elements of the charged offenses and served only to engender

sympathy for the victims. And encouraging a jury to convict based

on sympathy for the victims is improper. See Buckner, ¶ 42.

¶ 20 Having found that these statements were improper, we must

next decide whether they warrant relief under the applicable

standard. Harrison failed to object to these statements, so our

review is for plain error. See Hagos v. People, 2012 CO 63, ¶ 14.

Plain error must be both obvious and substantial. Id. To qualify as

obvious, the “error [must] be ‘so clear-cut, so obvious,’ a trial judge

should be able to avoid it without benefit of objection.” People v.

Crabtree, 2024 CO 40M, ¶ 42 (quoting Romero v. People, 2017 CO

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37, ¶ 6). We conclude that the challenged statements were not so

obvious.

¶ 21 The line between proper statements about an injury’s effect on

body functionality and improper statements about an injury’s effect

on quality of life can be a fine one. Although we conclude that the

prosecutor’s statements crossed this line, it is arguable that they

did so only minimally. And it is not totally implausible that the jury

and the court heard the prosecutor’s statements and understood

them as a serious bodily injury argument. In other words, they

could have understood the statements as an argument that the

sisters’ loss of independence and autonomy during retirement

established that there was a substantial risk of protracted loss or

impairment of their bodies, as was required for serious bodily

injury. Based on this possibility, we must conclude that although

the statements were improper, that impropriety was not so obvious

that the trial court should have sua sponte interrupted the

prosecutor’s closing to correct the error.

E. Victim’s Use of Mobility Aid at Trial

¶ 22 Relying on Harris v. People, 888 P.2d 259 (Colo. 1995),

Harrison next argues that it was improper for the prosecutor to

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point out during closing argument that one sister’s use of a

wheelchair at the time of trial supported a finding of serious bodily

injury. Harrison recognizes that the sister testified at trial that she

was then reliant on mobility aids and had not been reliant on them

before the carjacking. But Harrison contends that there was no

evidence that needing the mobility aids was the result of the

carjacking. We conclude that the prosecutor’s statement was a

proper comment on facts in evidence and the inferences that could

be properly drawn from them. See Jamison, ¶ 31.

F. Machiavelli

¶ 23 Harrison argues that the prosecutor improperly invoked

Machiavelli, a person Harrison describes as “an infamous figure,

who would certainly provoke a negative reaction from the jury.” We

disagree.

¶ 24 After arguing that the evidence showed that Harrison

committed the carjacking without any concern for injuring the

sisters, the prosecutor said,

There’s a quote by Machiavelli which says the
ends justify the means. In that context, it was
used for leaders, for tyrants who would commit
atrocities for the greater good, and it’s really
an excuse for them, because when they’re

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committing these atrocities, when they’re doing
those things to achieve that goal, they know
what they’re doing. They’re aware of their
conduct.

Defense, at the end of this case, told you that,
well, he had a goal, it was just to get that car,
that he didn’t go out to try to kill anyone, that
he didn’t try to hurt anyone, he just wanted a
car.

¶ 25 This was an inartful invocation of the cliche that the end

justifies the means. However, the prosecutor did not expressly

compare Harrison to Machiavelli or argue that he was a

Machiavellian figure. Cf. Harris, 888 P.2d at 265 (finding

prosecutorial misconduct where prosecutor characterized defendant

“as a thug and a bully who, like Saddam Hussein, needed

punishment”). Instead, the prosecutor simply argued that Harrison

wanted a car and chose to place the acquisition of a car (the ends)

above the means (injuring the sisters). The reference to Machiavelli,

though inartful and somewhat confusing, was a peripheral

distraction that did not constitute misconduct.

G. Value of the Victims’ Lives

¶ 26 Harrison next argues that the prosecutor’s references to the

value of human life and the victims’ lives specifically was improper

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because it asked the jury to do justice for sympathetic victims. We

conclude that these comments were acceptable references to the

mens rea element of the extreme indifference counts.

¶ 27 As the jury instructions in this case stated, attempted first

degree extreme indifference murder required proof that Harrison

acted “under circumstances evidencing an attitude of universal

malice manifesting extreme indifference to the value of human life

generally.” Similarly, first degree extreme indifference assault

required proof that he acted “under circumstances manifesting

extreme indifference to the value of human life.”

¶ 28 During closing argument, the prosecutor said, “We have to

acknowledge [the sisters], the value of their lives, and what was

taken from them, because that’s part of the charge of extreme

indifference murder. It’s part of the charge of assault in the first

degree, extreme indifference.” Shortly thereafter, the prosecutor

said that extreme indifference murder “recognizes the value of

human life and it puts it against the conduct of the person who

attempted to take that life.”

¶ 29 These statements did not improperly invite the jury to do

justice for sympathetic victims. Instead, they argued to the jury

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that Harrison’s conduct satisfied the extreme indifference elements

of the attempted murder and assault counts. See Samson, ¶ 30

(prosecutor’s arguments need not be perfectly and precisely phrased

to fall within the wide range of acceptable closing argument).1

H. Denigration of Defense Expert

¶ 30 Harrison argues that the prosecutor improperly denigrated a

defense expert witness during rebuttal closing argument.

¶ 31 A prosecutor cannot personally denigrate an opposing expert

witness by arguing that they made things up in their testimony.

See People v. McBride, 228 P.3d 216, 223 (Colo. App. 2009). But a

prosecutor can point out an opposing expert’s bias or challenge

their conclusions. Id.

¶ 32 The witness at issue here, Debra Johnson, was qualified as an

expert in forensic pathology. Her testimony called into question

1 Harrison argues that the impropriety of these statements was

amplified because he is not white and encouraging the jurors to
consider the value of the white sisters’ lives tapped into the implicit
bias of the jury. We have no way to evaluate whether this
amplification occurred or not. Moreover, we conclude that these
statements did not improperly invite the jury to act out of sympathy
for the victims in the first place.

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whether the sisters’ injuries were caused by Harrison intentionally

running them over with the car, as the prosecution argued.

¶ 33 In rebuttal closing argument, the prosecutor said this about

the expert,

I’m going to talk to you for a second about
Debra Johnson. Nice lady. She’s got some
experience. She reminds me of — she reminds
me, maybe some of you, she remind[s] me of
when you turn on the History Channel, and
you watch a show about, like, aliens. And they
get somebody on who is — really presents well,
is a professor at somewhere, the
cinematography is great, the production is
slick.

And you know, you’re watching along and it’s
amusing, and it’s interesting, and then they
testify — the person says, well, you know, it
could be that the pyramids were built as
landing sites for aliens. It could be that
Machu Picchu was built by aliens. That’s Ms.
Johnson.

She used could be, possible, maybe. Her job
was to come here as a hired gun for the
defense and say, well, these things are all
possible. These things are all — it could have
happened this way. But it didn’t. She was
merely brought to inject doubt into a situation
in which there is no doubt.

Again, it’s like when these people get up and
say, well, you know, Adolf Hitler didn’t die
after World War II . . . . JFK is still alive,
somebody who will be on the History Channel

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one of these nights and say that. Sounds
interesting, but when you dig down and look at
everything, and when it all comes down, you
go yeah, that’s not what happened. If aliens
were able to get — . . . . Dr. Johnson lacks
credibility.

¶ 34 The prosecutor’s argument may have been hyperbolic and

certainly included analogies that were not very useful, as evidenced

by the court’s sustaining two defense objections to it. But the gist

of the argument was that the expert advanced a version of the

carjacking that was not very believable — just like it’s not very

believable that aliens built Machu Picchu. It was proper for the

prosecutor to point out that the expert was paid by the defense.

And at no point did the prosecutor accuse the expert of making

things up. See id. We therefore disagree that the prosecutor’s

statements exceeded the wide latitude prosecutors are afforded in

closing argument.

¶ 35 To the extent that Harrison argues on appeal that the trial

court erred by denying his motion for a mistrial based on this or

other alleged instances of prosecutorial misconduct, he presents no

authority to support that argument, and we therefore do not

address it. See People v. Larsen, 2023 COA 28, ¶ 19 n.4 (declining

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to address conclusory arguments presented without supporting

authority).

I. Denigration of Defense Theory

¶ 36 Harrison’s final prosecutorial misconduct argument is that in

rebuttal closing, the prosecutor improperly implied that the defense

theory was not presented in good faith. The prosecutor started

rebuttal closing,

Anybody else wondering what the defense is in
this case? Anybody else curious as to what
the defense theory as to what happened is?
Seems a little unclear at this point. Did Robert
Harrison steal a car? Did he do the eluding?
Have you heard [defense counsel] say that Mr.
Harrison did the eluding on October 13th or
October 14th? No, you haven’t. The defense
in this case is, throw it all at the wall, see what
sticks.

¶ 37 To be clear, Harrison does not argue that this statement

shifted the burden of proof. Instead, he argues that it improperly

denigrated the defense by implying that the defense was not

presented in good faith. We disagree.

¶ 38 The prosecutor simply pointed out that the defense did not

present a unified theory of Harrison’s innocence. Indeed, the

defense did not, likely because it had no burden to do so. But the

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prosecutor did not, as Harrison argues, imply that the defense was

acting in bad faith. We therefore reject Harrison’s allegation of

error.

¶ 39 In all, we have found only one type of prosecutorial

impropriety that did not warrant relief on its own. Because we

perceive no additional impropriety, there is no aggregated

impropriety to consider, and Harrison is not entitled to relief under

a theory of cumulative prosecutorial misconduct. See People v.

Villa, 240 P.3d 343, 359 (Colo. App. 2009).

III. Sufficiency of the Evidence

¶ 40 Finally, Harrison argues that the evidence was insufficient to

establish that he was the person driving the car on the first day

after the carjacking for purposes of that vehicular eluding count.

We review the record de novo to determine whether the direct and

circumstantial evidence, viewed in the light most favorable to the

prosecution, is sufficient to support a reasonable conclusion that

the defendant is guilty beyond a reasonable doubt. See Dempsey v.

People, 117 P.3d 800, 807 (Colo. 2005); People v. Hupke, 2024 COA

73, ¶ 5. Applying this deferential standard, we conclude that there

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was sufficient evidence that Harrison was the driver during the

vehicular eluding incident on the first day after the carjacking.

¶ 41 Although nobody identified Harrison as the driver during the

car chase in question, a law enforcement officer testified to seeing

Harrison in the driver’s seat of the car at a different time that day.

And an officer who was involved in the subject car chase that same

day testified that the driver was a male wearing a baseball cap, an

item that Harrison was seen wearing repeatedly over the three days

of the charged conduct.

¶ 42 Notably, Harrison challenges neither the sufficiency of the

evidence that he carjacked the sisters and drove the car away on

the first day, nor that he drove the car during the car chase on the

third day. Harrison also does not dispute that the car was spotted

at other times over the course of the three days, each time with him

driving. Viewing this evidence in the light most favorable to the

prosecution, as we must, we conclude it was sufficient to support

the conclusion that Harrison drove the car during the car chase the

day after the carjacking.

IV. Disposition

¶ 43 The judgment of conviction is affirmed.

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JUDGE TOW and JUDGE SCHUTZ concur.

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