Peo v. Barkers

22CA1391 Peo v Barkers 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1391
Arapahoe County District Court No. 20CR117
Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lawrence Jerome Barkers,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

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

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Barbara A. Snow, Alternate Defense Counsel, Longmont, Colorado, for
Defendant-Appellant
¶1 Defendant, Lawrence Jerome Barkers, appeals the judgment of

conviction entered on jury verdicts finding him guilty of three

counts of first degree burglary, one count of aggravated robbery,

one count of conspiracy to commit first degree burglary, and three

counts of menacing. We affirm.

I. Background

¶2 On October 19, 2019, Aaron Starks’ bike was stolen. Starks

asked Barkers to help him find his bike. Starks believed that Angel

Garcia stole his bike, so they drove to Christina Garcia’s house,

where they believed Angel1 lived with his family.

¶3 When Barkers and Starks arrived at the house, Christina was

inside with Anthony Garcia, Adrian Garcia, Andy Garicia, Amelia

Manglona, and another of Christina’s friends. Angel was not home.

Christina and her family were sitting in the family room when they

saw Barkers and Starks approach. Christina noticed that the

driver of the car, later identified as Barkers, had a gun in his hand.

While multiple family members fled to the basement, Christina and

her two sons, Andy and Anthony, remained in the living room.

1 We refer to members of the Garcia family by their first names

since they share the same last name and mean no disrespect.

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¶4 After Barkers and Starks entered her house, Barkers pointed a

gun and threatened Christina, Andy, and Anthony. Starks yelled

that he wanted his bike back and threatened to shoot Angel if he

did not get it back by five o’clock that day. Barkers also threatened

to return and shoot up the house. Barkers and Starks then took

Christina’s phone and a Nintendo Switch as “collateral” for the

stolen bike and left. Anthony called 911.

¶5 The prosecution charged Barkers with six counts of first

degree burglary, two counts of aggravated robbery, conspiracy to

commit first degree burglary, conspiracy to commit aggravated

robbery, five counts of menacing, three counts of possession of a

weapon by a previous offender, two counts of theft, violation of bail

bond conditions, and ten crime of violence sentence enhancers. A

jury convicted him of three counts of first degree burglary, one

count of aggravated robbery, one count of conspiracy to commit

first degree burglary, and three counts of menacing. At sentencing,

the trial court vacated two of the three first degree burglary

convictions under People v. Fuentes, 258 P.3d 320 (Colo. 2011).

The court then found the crime of violence sentence enhancers had

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been proved and sentenced Barkers to twenty years in the custody

of the Department of Corrections.

¶6 Barkers challenges his convictions on two grounds: (1) the

prosecution presented insufficient evidence to prove, beyond a

reasonable doubt, that he possessed a real gun when he entered

Christina’s house; and (2) the prosecution engaged in misconduct.

We address and reject both contentions.

II. Sufficiency

¶7 Barkers contends there was insufficient evidence that he

possessed a real gun when he entered Christina’s house. We

disagree.

A. Additional Facts

¶8 The trial evidence showed the following:

• Starks testified that Barkers drove the car to Christina’s

house. Starks said Barkers had a Glock handgun with

an “extended drum” and that he pointed the gun at the

individuals in the living room. Starks also said Barkers

threatened to come back and shoot up the house if

Starks did not return his bike.

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• Christina testified that the driver had a gun in his hand

when he approached her house. Once inside, he pointed

the gun at her. Christina said she was afraid that he

would shoot someone in her family. She said the man

with the gun threatened to shoot up the house if Angel

did not return the bike by five o’clock. She also

described being two to three feet from the gun and said

the gun was black and had an extended clip. Christina

identified Barkers as the man with the gun in a photo

lineup two weeks after the incident. Christina also

identified Barkers as the man with the gun at trial.

• Andy testified that he called 911 because a man came

into his house with a gun and pointed it at his family.

• Anthony testified that when the two men arrived outside

his house, he looked out the window and saw Barkers

“cock [a] gun back.”

• Adrian testified that one of the men who entered the

house had a gun. He said the person with the gun

pointed the gun at him and his family members.

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• Manglona, who had previously lived with Starks, testified

that the driver of the car “cocked the gun back” as he

walked up to the house. She said Starks was not the

car’s driver.

• Charles Walker, a neighbor from across the street,

testified that the driver of the car had a weapon and

identified Starks as the passenger. He heard screaming

coming from the Garcias’ house.

• Detective Katie Maines testified that Christina had

described Barkers’ weapon as a “real gun with an

extended magazine.” Christina told her she was scared,

and she thought that Barkers was going to use the gun.

Anthony and Amelia also told police they thought the gun

was real. Detective Maines said Starks did not seem to

be very familiar with firearms because he had trouble

describing guns in general and initially believed it was a

large plastic gun. When asked why he thought it was

plastic, Starks responded, “I don’t know.”

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B. Standard of Review and Controlling Law

¶9 We review sufficiency of the evidence de novo. McCoy v.

People, 2019 CO 44, ¶ 27. In assessing the sufficiency of the

evidence to support a conviction, we employ the substantial

evidence test to determine whether the evidence, viewed as a whole

and in the light most favorable to the prosecution, is sufficient to

support a conclusion by a reasonable person that the defendant is

guilty of the crimes charged beyond a reasonable doubt. Clark v.

People, 232 P.3d 1287, 1291 (Colo. 2010). We must give the

prosecution the benefit of every reasonable inference that may be

fairly drawn from the evidence. People v. Duran, 272 P.3d 1084,

1090 (Colo. App. 2011).

¶ 10 “The pertinent question is whether, after viewing the evidence

in the light most favorable to the prosecution, a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Clark, 232 P.3d at 1291. The jurors are

entrusted with resolving the weight and credibility of the evidence.

People v. McGlotten, 166 P.3d 182, 188 (Colo. App. 2007).

¶ 11 Although a verdict “cannot be supported by guessing,

speculation, conjecture, or a mere modicum of relevant evidence,”

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the reviewing court “should not attempt to ‘serve as a thirteenth

juror or invade the province of the jury’” by weighing conflicting

evidence. People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.

Bennett, 515 P.2d 466, 469 (Colo. 1973)). “Where reasonable minds

could differ, the evidence is sufficient to sustain a conviction.”

People v. Carlson, 72 P.3d 411, 416 (Colo. App. 2003).

¶ 12 A person commits first degree burglary if

the person knowingly enters unlawfully, or
remains unlawfully after a lawful or unlawful
entry, in a building or occupied structure with
intent to commit therein a crime, other than
trespass as defined in this article, against
another person or property, and if in effecting
entry or while in the building or occupied
structure or in immediate flight therefrom, the
person or another participant in the crime
assaults or menaces any person, the person or
another participant is armed with explosives,
or the person or another participant uses a
deadly weapon or possesses and threatens the
use of a deadly weapon.

§ 18-4-202(1), C.R.S. 2024.

¶ 13 In relevant part, a person commits aggravated robbery if,

during the act of robbery or the immediate flight therefrom, “[h]e is

armed with a deadly weapon with intent, if resisted, to kill, maim,

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or wound the person robbed or any other person.” § 18-4-302(1)(a),

C.R.S. 2024.

¶ 14 A person commits the crime of menacing if “by any threat or

physical action, he or she knowingly places or attempts to place

another person in fear of imminent serious bodily injury.”

§ 18-3-206, C.R.S. 2024.

¶ 15 The prosecution may prove the crime of violence enhancer,

under section 18-1.3-406(2)(a)(I)(A), C.R.S. 2024, by showing that

the defendant “[u]sed, or possessed and threatened the use of, a

deadly weapon.” As relevant here, “[d]eadly weapon” is defined as

“[a] firearm, whether loaded or unloaded.” § 18-1-901(3)(e)(I),

C.R.S. 2024.

C. Analysis

¶ 16 Based on the evidence adduced at trial, we conclude the

prosecution presented sufficient evidence that Barkers possessed a

real firearm. As described above, numerous witnesses saw Barkers

with a gun; two witnesses saw him “cock the gun” as he approached

the house; and his codefendant, Starks, described the gun as a

Glock with an “extended drum.” We are not persuaded that Starks’

statement to the police that the gun was plastic, or his lack of

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familiarity with guns, affects the outcome. As Barkers concedes in

his brief, this evidence “cuts both ways.” And we must view the

evidence in the light most favorable to the prosecution and resolve

all conflicts in the evidence in favor of the prosecution. Clark, 232

P.3d at 1291.

¶ 17 Accordingly, we conclude the record contains sufficient

evidence that Barkers possessed a real firearm and, thus, that

sufficient evidence supports the first degree burglary, aggravated

robbery, and menacing convictions, as well as the crime of violence

sentence enhancers.

III. Prosecutorial Misconduct

¶ 18 Barkers next contends that the prosecutor committed

misconduct when she (1) misstated the evidence and (2) improperly

bolstered Starks’ testimony. We disagree.

A. Standard of Review and Applicable Law

¶ 19 “Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.”

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We

will not disturb the trial court’s rulings regarding such a statement

absent a showing of abuse of discretion. People v. Strock, 252 P.3d

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1148, 1152 (Colo. App. 2010). A trial court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair or

is based on a misunderstanding or misapplication of the law.

People v. Snelling, 2022 COA 116M, ¶ 31.

¶ 20 Where, as here, a defendant does not object at trial, we review

whether an error requires reversal under the plain error standard.

People v. James, 117 P.3d 91, 95 (Colo. App. 2004). “To constitute

plain error, misconduct must be flagrant or glaring or tremendously

improper, and it must so undermine the fundamental fairness of

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

of conviction.” People v. Weinreich, 98 P.3d 920, 924 (Colo. App.

2004), aff’d, 119 P.3d 1073 (Colo. 2005). Prosecutorial misconduct

in closing argument rarely constitutes plain error. Id.

¶ 21 When reviewing claims of prosecutorial misconduct, we

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

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

questionable conduct was improper based on the totality of the

circumstances.” Id. In doing so, we consider the context of the

argument as a whole and view it in the light of the evidence before

the jury. People v. Samson, 2012 COA 167, ¶ 30. The prosecution

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has wide latitude to make arguments based on facts in evidence

and the reasonable inferences that can be drawn from those facts.

Strock, 252 P.3d at 1153. The prosecution is permitted to use

rhetorical devices and engage in oratorical embellishment. Samson,

¶ 31. Because arguments delivered in the heat of trial are not

always perfectly scripted, we give the prosecution the benefit of the

doubt when their remarks are ambiguous or simply inartful. Id. at

¶ 30. However, closing arguments cannot be used to mislead or

unduly influence the jury. Domingo-Gomez, 125 P.3d at 1048-50.

To that end, the prosecution may not intentionally misstate the

evidence or the law, attempt to inflame the juror’s passions or

prejudices, or offer a personal opinion as to the defendant’s guilt.

Id. at 1049; see also People v. Maloy, 2020 COA 71, ¶ 61.

¶ 22 Second, if the comments were improper, we determine

“whether such actions warrant reversal according to the proper

standard of review.” Wend, 235 P.3d at 1096.

B. Analysis

1. Misstating the Evidence

¶ 23 During Detective Maines’ cross-examination, the following

colloquy occurred:

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DEFENSE COUNSEL: And during the course
of your investigation, you learned one of the
reasons that Mr. Starks believed Angel was the
person that took his bike is because Angel
chased him, correct?

DETECTIVE MAINES: I would say that
Angel — I wouldn’t use the word “chased,”
personally. I think confronted would be
accurate.

DEFENSE COUNSEL: During the course of
your investigation, did you find out that Angel
pulled up on Mr. Starks’ four deep?

DETECTIVE MAINES: Yes. That term was
used.

DEFENSE COUNSEL: Four deep. Did you
learn during the course of investigations —
when I say “four deep,” four other people with
Angel?

DETECTIVE MAINES: That was my
understanding of the phrase, yes.

DEFENSE COUNSEL: And during the course
of your investigation, did you learn that Angel
pulled up on him four deep with guns?

DETECTIVE MAINES: Yes.

¶ 24 In rebuttal argument, the prosecutor argued, without

objection,

[Barkers] knew that Aaron [Starks] had been
involved in a confrontation earlier that day
with Angel. Defense counsel came up here
and said, Yup, Angel chased him and they all

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had guns. Came in four deep with assault
rifles.

So you’re telling me that Mr. Barkers knows
about the theft; knows that Mr. Starks is
angry; knows that there is a prior
confrontation; knows that there were assault
rifles involved; didn’t know where he was
going; didn’t know whose house it was and
they want you to believe that he took a plastic
gun, took a plastic gun to a place where people
with assault rifles could have been? That
doesn’t make sense, ladies and gentlemen.
You know why? Because he had a gun and it
was real.

¶ 25 The prosecutor later argued, without objection, “Direct

evidence. You have the testimony of the assault rifles.”

¶ 26 Finally, the prosecutor argued, “But it was not a fake gun,

because Mr. Barkers was planning on going and getting the bike,

and you do not take a plastic gun to a fight with assault rifles.”

¶ 27 Barkers contends that the prosecutor’s references to “assault

rifles” are not supported by the record. We agree. Nevertheless, we

conclude the statements did not so undermine the fundamental

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

of the judgment of conviction, for three reasons. See People v.

Smith, 2018 CO 33, ¶ 24.

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¶ 28 First, the issue at trial concerned whether Barkers’ gun was

real, while the assault rifle statements related to weapons Angel

possessed when he “pulled up” on Starks previously. Thus, the

assault rifle misstatements did not directly relate to an element of

the crimes charged that the prosecution was required to prove. Cf.

People v. McBride, 228 P.3d 216, 225 (Colo. App. 2009) (argument

that was an obvious misstatement of the deliberation element

constituted plain error). Moreover, we conclude there was

overwhelming evidence that Barkers possessed a real firearm, based

on the witnesses’ testimony, and disagree with Barkers that this

was a close question. See People v. Estes, 2012 COA 41, ¶¶ 39, 42

(prosecutorial misconduct in closing argument didn’t warrant

reversal because, among other things, overwhelming evidence

supported the guilty verdict).

¶ 29 Second, the record shows that the prosecutor accurately

described the facts forming the basis of the charges when

discussing the elements of the crimes charged. See

Domingo-Gomez, 125 P.3d at 1050 (“Factors to consider when

determining the propriety of statements include the language used,

the context in which the statements were made, and the strength of

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the evidence supporting the conviction.”); see also People v.

Denhartog, 2019 COA 23, ¶ 66 (No plain error where the

prosecutor’s inaccurate characterization of a witness’ testimony “did

not ‘predominate over those parts of the argument that

appropriately address[ed] the evidence and the prosecution theory

of the case.’” (quoting People v. Eckert, 919 P.2d 962, 967 (Colo.

App. 1996))). Further, the jury heard Detective Maines’ testimony

that referred to the weapons carried in the earlier confrontation as

guns. See Samson, ¶ 30 (“We must evaluate claims of improper

argument in the context of the argument as a whole and in light of

the evidence before the jury.”).

¶ 30 Third, Barkers did not object to the assault rifle references,

indicating counsel’s belief that the live argument was not overly

damaging. See People v. Cardova, 293 P.3d 114, 122 (Colo. App.

2011) (citing People v. Villa, 240 P.3d 343, 356 (Colo. App. 2009)).

Therefore, while we find an error, we conclude the error does not

require reversal. See Weinreich, 98 P.3d at 924.

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2. Improper Bolstering

¶ 31 In his initial statement to the police, Starks stated that the

gun was a large plastic gun. But at trial, Starks testified that

Barkers had a Glock with an “extended drum.”

¶ 32 Additionally, during Starks’ direct examination, the prosecutor

elicited the details of his plea agreement in the following colloquy:

PROSECUTION: Is it your understanding that
as a part of this plea agreement you are
required to cooperate in the trial against Mr.
Barkers?

STARKS: Yes.

PROSECUTION: And is it your understanding
that part of your plea agreement requires you
to provide truthful testimony during the trial?

STARKS: Yes.

PROSECUTION: And is it your understanding
that if you were to provide any false
information, that would constitute a breach of
the plea agreement and the offer could be
withdrawn?

STARKS: Yes.

¶ 33 During closing, the prosecutor argued,

You have the testimony from every witness
that saw the gun. They described what the
gun looked like. And defense counsel wants to
pick one piece of testimony from Mr. Starks
that occurred the day of the incident, where he

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is talking to the police, he is trying to minimize
because it did not go as planned, then he says
plastic gun.

We are not convinced that the direct examination or the closing

argument constitutes improper bolstering, for two reasons.

¶ 34 First, prosecutors have wide latitude to make arguments

based on facts in evidence and the reasonable inferences that can

be drawn from those facts. Strock, 252 P.3d at 1153. The fact that

Starks downplayed the incident and minimized his involvement in

his initial police statement is a reasonable inference drawn from

Detective Maines’ testimony that Starks initially described the gun

as plastic but could not explain why he thought that.

¶ 35 Second, the terms of a plea agreement between the

prosecution and a witness, including the plea’s requirement that

the witness provide “truthful testimony,” are admissible, at least

where the prosecutor does not express an opinion that the witness

actually told the truth, and there is no suggestion that the

prosecutor possesses information unavailable to the jury. People v.

Coughlin, 304 P.3d 575, 582-83 (Colo. App. 2011).

¶ 36 Here, the prosecutor elicited the terms of Starks’ plea

agreement but never opined that his testimony was truthful and

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never argued the terms of the plea agreement as evidence of guilt in

closing. Moreover, the prosecutor never suggested that she

possessed information that was unavailable to the jury.

¶ 37 Accordingly, we discern no improper bolstering.

IV. Disposition

¶ 38 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.

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