People v. Kenneth L. Garcia

     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
                                                          December 22, 2022

                               

No. 20CA1697, People v. Garcia — Constitutional Law — Due
Process — Sixth Amendment — Right to an Impartial Jury —
Confrontation Clause — Public Policy Exception; Criminal Law
— Trials — Trial Proceedings — Voir Dire — COVID-19 — Face
Masks


     A division of the court of appeals considers a criminal

defendant’s challenge to the precautions the trial court

implemented during trial in response to the COVID-19

pandemic. Specifically, he contends that the court violated his

constitutional rights by (1) requiring the jury venire and impaneled

jurors to wear masks covering their noses and mouths; and

(2) seating the impaneled jury in the courtroom gallery (as opposed

to the jury box). Addressing a novel issue in Colorado, the division

concludes that the trial court’s COVID-19 precautions did not
violate the defendant’s constitutional rights. Because the division

also rejects his other claims, the division affirms the judgment.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 20CA1697
City and County of Denver District Court No. 19CR5690
Honorable Shelley I. Gilman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenneth L. Garcia,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                        Opinion by JUDGE NAVARRO
                       Welling and Johnson, JJ., concur

                        Announced December 22, 2022


Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General
II, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    Defendant, Kenneth L. Garcia, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of one count

 of theft from an at-risk person — $500 or more, one count of

 theft — $20,000-$100,000, and two counts of violating the

 pawnbroker act. Garcia challenges the precautions the trial court

 implemented during trial in response to the COVID-19 pandemic.

 Specifically, he contends that the court violated his constitutional

 rights by (1) requiring the jury venire and impaneled jurors to wear

 masks covering their noses and mouths; and (2) seating the

 impaneled jury in the courtroom gallery (as opposed to the jury

 box). Addressing a novel issue in Colorado, we conclude that the

 trial court’s COVID-19 precautions did not violate Garcia’s

 constitutional rights. Because we also reject his other claims, we

 affirm the judgment.

                           I.   Background

¶2    Dr. Sylvia Kerr, age seventy-eight, hired Garcia to fix a fence

 on her property. They agreed that Garcia would complete the work

 while Kerr was out of town. Upon Kerr’s return, she discovered that

 someone had burglarized her home and had stolen numerous items




                                   1
 of significant value. Kerr questioned Garcia, who denied any

 knowledge about the missing items.

¶3    The police found some of Kerr’s missing property at two

 different pawnshops; both had documents designating “Kenneth

 Garcia” as the person attempting to make the sales. The police,

 during a traffic stop of Garcia, also found him in possession of

 Kerr’s personal checkbooks and other property from her home.

 During a police interview, Garcia admitted to having more items

 belonging to Kerr in his storage unit, which the police verified after

 searching the unit pursuant to a search warrant. Garcia also

 confirmed that he had sold some of Kerr’s items to a pawnshop.

 But in that same interview and (through counsel) at trial, Garcia

 maintained that he had collected Kerr’s property and placed it in

 his storage unit for safekeeping, with the intent to return the items

 to her.

¶4    The jury found Garcia guilty of all charges. The court

 sentenced him to a total of nine years in prison.

¶5    On appeal, Garcia contends that the trial court committed

 reversible error by (1) requiring the jury venire and impaneled

 jurors to wear masks covering their noses and mouths; (2) seating


                                    2
 the impaneled jury in the courtroom gallery (as opposed to the jury

 box); (3) failing to seat prospective jurors randomly during voir dire;

 (4) conducting jury selection without Garcia present; (5) denying his

 motion for judgment of acquittal; (6) admitting the testimony of an

 unqualified expert witness; and (7) permitting multiple instances of

 prosecutorial misconduct. We disagree with all of Garcia’s

 contentions of error.

                II.   Allegations Related to Jurors and
                             COVID-19 Protocols

¶6    Garcia argues that the trial court’s COVID-19 protocols

 affecting prospective and impaneled jurors violated his

 constitutional rights. He alludes generally to his rights to due

 process, to present a defense, to be present at trial, to

 confrontation, to a fair and impartial jury, to effective assistance of

 counsel, and to appeal. For the most part, however, he does not

 explain how the court’s procedures violated each particular

 constitutional right. We discern no constitutional violation.1


 1Garcia also asserts, without citing authority or developing an
 argument, that the trial court’s procedures violated statutes
 addressing voir dire of prospective jurors. Because “we will not
 consider a bald legal proposition presented without argument or
 development,” we do not consider his statutory claims unless

                                    3
                         A.    Additional Facts

¶7    “COVID-19, the highly contagious and potentially deadly

 illness caused by the novel coronavirus, has triggered a global

 pandemic the likes of which we haven’t experienced in over a

 century.” People v. Lucy, 

. The pandemic has led

 to an “unparalleled public health crisis” and “has turned our lives

 upside down.” Id. at ¶¶ 1, 34. As pertinent here, the COVID-19

 pandemic has significantly impacted our judicial system, created

 “innumerable challenges” for courts to confront, and made it

 difficult to hold jury trials in criminal cases. People v. Hernandez,

 

, ¶ 44; Lucy, ¶ 34.

¶8    In response to the COVID-19 pandemic, the Chief Justice of

 the Colorado Supreme Court issued multiple orders about the

 operation of jury trials. As of June 15, 2020, all jury trials were

 barred through August 2, 2020. See Office of the Chief Justice,

 Updated Order Regarding COVID-19 and Operations of Colorado

 State Courts (June 15, 2020), https://perma.cc/6KYD-FJMF. The




 otherwise noted. People v. Rios, 

, ¶ 7 n.1; see also
 C.A.R. 28(a)(7)(B); People v. Simpson, 

 (Colo. App.
 2003).

                                    4
  Chief Justice granted an exemption, however, to allow two test

  trials in Denver, one of which was Garcia’s. Thus, Garcia’s trial

  took place during the early months of the pandemic — in July 2020

  — and was the first jury trial to take place in person in Denver after

  the pandemic began.

¶9     The trial court created a safety plan in consultation with

  health officials and approved by the Chief Justice. According to the

  plan, everyone in the courtroom would be masked during the trial.

  The plan followed the Governor’s state-wide mask mandate in force

  at the time of Garcia’s trial, which did not provide exceptions for

  juries. See Colo. Exec. Order No. D 2020 138 (July 16, 2020),

  https://perma.cc/SZG3-K9B3. The impaneled jury was to be

  seated throughout the courtroom gallery to ensure social

  distancing, and the parties would be seated at tables perpendicular

  to the judge on either side of the court room. This arrangement

  would result in some jurors sitting in line with or slightly behind

  Garcia. See infra Appendix.

¶ 10   Garcia filed a written objection to holding the jury trial in July

  2020, raising multiple concerns with the court’s COVID-19 safety




                                     5
  protocols. He also moved for a mistrial during the hearing on his

  written objections.

¶ 11   The court denied the mistrial motion and Garcia’s objections,

  explaining, “The Court believes that it has taken all the appropriate

  precautions, and if there’s anything further that we can help with,

  we will – we’ll provide those.” After further consideration, the court

  permitted trial witnesses to remove their masks while testifying and

  to use face shields instead.

               B.   Requiring Jurors to Wear Face Masks

¶ 12   First, Garcia contends that requiring prospective jurors to

  wear face masks during voir dire undermined the parties’ and the

  court’s ability to observe each juror’s demeanor, thereby preventing

  defense counsel from effectively exercising challenges for cause and

  peremptory challenges. Second, he argues that requiring impaneled

  jurors to wear masks during the rest of the trial prevented defense

  counsel from assessing the jurors’ reactions and making effective

  strategic decisions. We do not discern constitutional error.

                        1.       Standard of Review

¶ 13   We review de novo whether a Confrontation Clause violation,

  or other constitutional violation, occurred. See Hernandez, ¶ 18.


                                       6
¶ 14   Trial courts, however, have broad “discretionary authority over

  the conduct and the scope of the voir dire examination.” People v.

  Flockhart, 

; see also People v. Harlan, 

 (Colo. 2000), overruled on other grounds by People v. Miller, 

 (Colo. 2005). Therefore, a trial court’s decisions about voir

  dire procedures will not be disturbed absent an abuse of discretion.

  A trial court’s management of the courtroom is also reviewed for an

  abuse of discretion. Makeen v. Hailey, 

. An

  abuse of discretion occurs when the trial court’s decision is

  manifestly arbitrary, unreasonable, unfair, or based on an

  erroneous understanding of the law. People v. Gutierrez, 

.

¶ 15   The People concede that Garcia preserved all his objections to

  the trial court’s requirement that the jurors wear masks. We are

  not so sure. Because we do not discern error, however, resolving

  this preservation question is immaterial to our analysis.

                              2.    Analysis

¶ 16   Whether requiring or permitting jurors to wear masks during

  trial violates a defendant’s constitutional rights appears to be a

  matter of first impression in Colorado. We join the several courts


                                     7
  from other jurisdictions that have considered this question and

  have concluded that such precautions in the face of the COVID-19

  pandemic do not violate a defendant’s constitutional rights.

¶ 17   With respect to prospective jurors wearing masks during voir

  dire, Garcia focuses on the alleged impact on his right to a fair and

  impartial jury (thus, implicating his right to due process). Our

  analysis adopts the same focus.

¶ 18   A criminal defendant has a constitutional right to a trial before

  an impartial jury. People v. Rodriguez, 

 (Colo.

  1996). The jury selection process is designed to produce such a fair

  jury. People v. Lefebre, 

 (Colo. 2000), overruled on

  other grounds by People v. Novotny, 

, and abrogated on

  other grounds by Vigil v. People, 

. That is, the purpose

  of voir dire examination is “to enable counsel to determine whether

  any prospective jurors are possessed of beliefs which would cause

  them to be biased in such a manner as to prevent the [defendant]

  from obtaining a fair and impartial trial.” Rodriguez, 

 (citation omitted); see People v. Samuels, 

  (Colo. App. 2009). But voir dire is not itself a constitutional right.

  Lefebre, 

; see People v. O’Neill, 

, 169


                                     8
  (Colo. 1990). Rather, voir dire “is a tool that the parties use for the

  purpose of revealing and addressing bias in potential jurors.”

  Lefebre, 

.

¶ 19   Garcia maintains that the jurors’ masks interfered with voir

  dire because the masks impeded the court’s and the parties’ ability

  to assess each juror’s demeanor. We acknowledge that assessing a

  juror’s demeanor can be useful while considering the juror’s

  responses to questions or instructions. See Marko v. People, 

 (noting that a trial court must evaluate a prospective

  juror’s responses, demeanor, and body language when ruling on a

  challenge for cause); People v. Beauvais, 

  (recognizing that the demeanor of challenged jurors and challenging

  attorneys may be relevant to challenges based on Batson v.

  Kentucky, 

 (1986)). Even so, a mask covering a juror’s

  nose and mouth does not make it impossible to assess the juror’s

  demeanor. The ability to see a juror’s nose and mouth is not

  essential for assessing credibility because “[d]emeanor consists of

  more than those two body parts” and “includes the language of the

  entire body.” United States v. Crittenden, No. 20-CR-7, 

, at *7 (M.D. Ga. Aug. 21, 2020) (unpublished opinion); see


                                     9
  United States v. Tagliaferro, 

, 851 (S.D.N.Y.

  2021); United States v. Trimarco, No. 17-CR-583, 

, at *5 (E.D.N.Y. Sept. 1, 2020) (unpublished opinion);

  Guerin v. Commonwealth, ___ S.W.3d ___, ___, 

, at

  *2 (Ky. Ct. App. 2022).

¶ 20   During questioning of prospective jurors who are masked,

  counsel and the court can still observe the jurors’ body language,

  tone of voice, eye contact, and other elements of their demeanor.

  Not surprisingly, then, “[a]ll courts that have considered this

  question so far have universally reached the conclusion that a

  defendant can still assess a juror’s credibility and demeanor during

  both voir dire and trial while the juror is wearing a face mask.”

  United States v. Schwartz, No. 19-20451, 

, at *2

  (E.D. Mich. Nov. 12, 2021) (unpublished opinion) (collecting cases);

  Guerin, 

, at *2.

¶ 21   On a related note, Garcia “cites no authority (nor are we aware

  of any) holding that defendants have a constitutional right to see

  jurors’ uncovered facial expressions during trial.” United States v.

  Smith, No. 21-5432, 

, at *2 (6th Cir. Nov. 29,

  2021) (unpublished opinion); see United States v. Thompson, 

  Supp. 3d 1156, 1164 (D.N.M. 2021) (“[T]he Court is aware of no

  authority, nor has Mr. Thompson cited any, holding that the Sixth

  Amendment right to an impartial jury or Due Process demand that

  the defendant have unimpeded visual access to prospective jurors’

  facial expressions during jury selection.”).2 Although a defendant

  ordinarily must be able to see and hear a prospective juror’s

  answers to questions, and a person’s facial expressions play a role

  in nonverbal communication, the relevant case law does not “impart

  constitutional significance to the ability to view a potential juror’s

  entire face.” Prince v. State, ___ A.3d ___, ___, 

,

  at *9 (Md. Ct. Spec. App. 2022).

¶ 22   Moreover, even if the prospective jurors’ masks made

  assessing their demeanor marginally more difficult, both the

  defense and the prosecution were equally burdened by this

  challenge. The jurors “were masked for all parties and the court,

  and the marginal diminution of everyone’s ability to see the lower


  2 Garcia’s reliance on Marko v. People, 

, is
  misplaced because the supreme court in that case simply explained
  that, when ruling on a challenge for cause, a trial court must
  evaluate a prospective juror’s responses, demeanor, and body
  language throughout the voir dire. The supreme court did not hold
  that a juror’s entire face must be visible throughout voir dire.

                                     11
  halves of the potential jurors’ faces didn’t affect the answers they

  gave or the court’s ability to evaluate and rule on motions to

  exclude them.” Id.; see also Smith, 

, at *3 (noting

  that the face mask requirement “applied with equal force to both

  parties”).

¶ 23   So while the mask requirement was not ideal, it was a

  reasonable exercise of the trial court’s discretion to manage voir

  dire in light of the daunting challenges of the COVID-19 pandemic.

  As noted, the pandemic “presented innumerable challenges to the

  important work of trial courts throughout Colorado,” and courts

  had to adapt new ways to continue court operations. Hernandez,

  ¶ 44. The trial court’s procedures were far from arbitrary; they

  reflected careful consideration of governing safety and health

  measures during “an unprecedented public health crisis.” Lucy,

  ¶ 16; see Commonwealth v. Davis, 

 (Pa. Super.

  Ct. 2022); Prince, 

, at *9 (“[I]t was not

  unreasonable for the court to observe the constraints posed by the

  COVID-19 pandemic and the paramount importance of public

  health and safety.”).




                                    12
¶ 24   Finally, and for similar reasons, we reject Garcia’s claim that

  requiring the impaneled jury to wear masks during opening

  statements, the presentation of evidence, and closing arguments

  violated his constitutional rights. Garcia says the masks prevented

  defense counsel “from assessing the jury’s reaction to the evidence”

  and denied defense counsel “sufficient information to make effective

  strategic and tactical decisions during the trial.”

¶ 25   Once again, however, Garcia’s arguments rest on the notion

  that it is impossible to assess a juror’s demeanor without seeing the

  juror’s nose and mouth. We reject that notion, as have other courts

  that have considered the question in the context of impaneled

  jurors’ masks during the trial. See Schwartz, 

, at

  *2; Trimarco, 

, at *5; see also Crittenden, 

, at *7 (addressing a similar issue with respect to

  masked witnesses). Indeed, Garcia does not identify which tactical

  decisions of his counsel were allegedly affected by the jurors’

  masks. “Mere possibilities do not give rise to Constitutional

  violations, especially where they are as speculative as those alleged

  here.” Tagliaferro, 531 F. Supp. 3d at 852.




                                     13
¶ 26   In sum, we discern no error in the trial court’s decision to

  require prospective and impaneled jurors to wear masks during jury

  selection and at trial.

                    C.      Seating of Impaneled Jurors

¶ 27   Garcia next raises two arguments related to the seating

  arrangement in the courtroom in response to the COVID-19

  pandemic. He argues that seating the impaneled jurors in the

  gallery during the trial violated his constitutional rights because

  some jurors could not see his face during the entire trial. He also

  argues that some jurors were seated farther away from the witness

  stand than in a typical trial, reducing their ability to evaluate the

  witnesses’ demeanor. Although Garcia asserts generally that this

  arrangement violated a host of his constitutional rights, he cites

  authority dealing with only his right to confrontation. Hence, we

  limit our analysis to the confrontation right.

              1.    Jurors’ Ability to Observe Garcia’s Face

¶ 28   To reiterate, we review de novo a possible Confrontation

  Clause violation, and we review for an abuse of discretion the trial

  court’s management of the courtroom, including its arrangement.

  See Makeen, ¶ 38.


                                     14
¶ 29   Garcia maintains that seating some jurors where they could

  not see his face was improper because he was “entitled to have the

  jury be able to view [his] demeanor during witness testimony.” He

  cites People v. Boykins, in which a division of this court concluded

  that “the right to cross-examine witnesses is an indispensable

  component of the Confrontation Clause, and includes the right of

  an accused to have the jury observe his or her demeanor.” 

 (Colo. App. 2005). In support of the proposition that a

  defendant’s right to confront witnesses also includes the right to

  have the jury observe the defendant’s demeanor, however, the

  division cited only Justice Kennedy’s concurring opinion (joined by

  no other justice) in Riggins v. Nevada, 

 (1992).

  The accuracy of this proposition is debatable. See United States v.

  Petit, 

, 828 (S.D.N.Y. 2020) (“In actuality, there

  is no such right [to have the trier of fact observe the defendant

  throughout trial], and the only authority defendants cite in its

  support is a non-precedential concurring opinion by Justice

  Kennedy in Riggins . . . .”); cf. Smith, 

, at *3

  (remarking that it is “quite a stretch” to argue that the right to see

  jurors’ facial expressions during trial is on par with the right to


                                     15
  confront the witnesses for the prosecution, particularly given that

  the alleged right to observe jurors’ noses and mouths is not explicit

  in the Constitution).

¶ 30   Still, assuming without deciding that a defendant’s

  confrontation right includes the right to have the jury observe the

  defendant’s demeanor, such a right is not absolute. Although the

  Confrontation Clause reflects a preference for face-to-face

  confrontation, this preference must occasionally give way to

  considerations of public policy and the necessities of the case.

  Hernandez, ¶ 20. In the context of a witness’s testimony, for

  instance, “the right may be satisfied without face-to-face

  confrontation ‘where denial of such confrontation is necessary to

  further an important public policy’ and where the testimony’s

  reliability is otherwise assured.” 

 (quoting Maryland v. Craig, 

 (1990)).

¶ 31   “Accordingly, observation of demeanor by the jury cannot be

  an irreducible constitutional requirement and must be subject to

  exception in certain circumstances.” Crittenden, 

4917733, at *7.3 Like the mask requirement, the positioning of the

jurors in the gallery here furthered an important public policy —

ensuring the safety of everyone in the courtroom in the midst of an

extraordinary global pandemic by having jurors sit apart. Id. at *6;

see Tagliaferro, 531 F. Supp. 3d at 850 (“[E]ven if physical

confrontation issues are implicated, the [court’s] mask protocol fits

comfortably within the public policy exception of the Confrontation

Clause and therefore does not offend the Sixth Amendment.”).

Indeed, our supreme court has recognized that maintaining the

safety of all court users in light of the health concerns posed by

COVID-19 is an important public policy that may justify some

limitations on a defendant’s confrontation right. See Hernandez,

¶¶ 24-27 (“[P]ermitting the prosecution to appear, and the witnesses

to testify, at [an immunity hearing] via WebEx does not amount to a

violation of Hernandez’s confrontation right.”); see also Roman Cath.

Diocese v. Cuomo, 

, ___, 

 (2020)




3We also note that even jurors seated behind and to the side of
Garcia could assess his demeanor to some degree because, as
discussed, demeanor consists of more than facial expressions.

                                  17
  (“Stemming the spread of COVID-19 is unquestionably a compelling

  interest . . . .”).

¶ 32    Therefore, the limitation on some jurors’ ability to see Garcia’s

  entire face during the trial did not violate his right to confrontation.

                   2.   Jurors’ Ability to Observe Witnesses

¶ 33    Garcia also argues that, because the jury sat in the gallery,

  some jurors were up to eight feet farther from the witnesses than

  “[u]nder normal circumstances.” He says this distance “likely

  negatively affected” those jurors’ ability to evaluate the witnesses’

  demeanor.

¶ 34    Even accepting as true Garcia’s assertions about the distances

  here as compared to those in “normal circumstances,” we see no

  constitutional violation. This social distancing policy did not

  deprive Garcia of meaningful cross-examination. The witnesses

  were not masked during their testimony, and Garcia does not allege

  any impediment to the jurors’ ability to hear the witnesses. See

  Tagliaferro, 531 F. Supp. 3d at 850 (“[B]ecause witnesses will testify

  using courtroom microphones, there will be no impediment to




                                      18
  audibility for the jurors who are seated in the public gallery.”).4 On

  the contrary, the record reveals that the extra distance did not

  impact the jurors’ ability to observe testifying witnesses because the

  trial court repeatedly asked jurors if they could see and hear the

  witnesses and no juror ever expressed any difficulties.

¶ 35   For these reasons, the court’s decision to seat the jury

  throughout the gallery presented, at most, a minimal limitation on

  the jurors’ ability to assess the demeanor of witnesses at trial.

  “Such a minimal disturbance [was] vastly outweighed by the

  compelling interest in resuming criminal trials and the compelling

  need to do so safely.” Petit, 496 F. Supp. 3d at 829. Hence, we do

  not discern a violation of Garcia’s constitutional rights. See id. at

  828-29 (discerning no Confrontation Clause violation where the

  defendant alleged that “a juror sitting 60 or more feet from a

  witness encased in a plexiglass cube with light reflecting off it and




  4We offer no opinion on whether requiring witnesses to wear masks
  during their testimony impairs a defendant’s constitutional rights.


                                    19
  creating a glare likely cannot make an informed assessment of the

  witness’s testimony”).5

                  III.   Selection of Prospective Jurors

¶ 36   Garcia contends that the trial court erred by not randomly

  seating potential jurors in the jury selection room. He says this

  procedure violated his constitutional right to a fair and impartial

  jury that represents a fair cross-section of the community as well as

  statutory mandates related to jury selection. We disagree.

¶ 37   Prospective jurors were identified by the time they checked in

  at the courthouse. They were then assigned to seats in the jury

  selection room in the order that they checked in. Garcia says this

  process made the potential jurors who arrived earlier, were seated

  in lower seat numbers, and were allegedly more inclined to convict

  a defendant (the “eager beavers,” as he calls them) more likely to be


  5 As an overarching criticism, Garcia also maintains that the
  COVID-19 pandemic was foreseeable and, thus, the court system
  should have prepared for it. Regardless of the accuracy of the
  premise that the pandemic was foreseeable, Garcia does not
  indicate what other measures the trial court here should have
  adopted in response. Nor does he cite any authority holding that
  such other theoretical measures were constitutionally mandated.
  Consequently, irrespective of whether the safety measures here
  were flawless, we discern no constitutional violation or abuse of
  discretion.

                                    20
  on the jury. According to Garcia, this prevented a fair “jury pool”

  because it was not a random selection process.

¶ 38   Garcia did not raise this objection below, and we see no error,

  much less plain error. See People v. Walker, 

, ¶¶ 57,

  68 (explaining that we review unpreserved claims for plain error and

  setting forth the plain error standard).

¶ 39   The Colorado Uniform Jury Selection and Service Act outlines

  the procedures for selecting potential jurors from the community.

  See §§ 13-71-107 to -110, C.R.S. 2022. As Garcia acknowledges,

  nothing in this act dictates how a court must seat jurors after they

  check in for jury duty. Thus, there was no statutory error. And he

  cites no authority and develops no argument for his assertion that

  the jury selection process here violated his constitutional rights.

  Because we will not consider a bald legal proposition presented

  without argument or development, we do not address this claim any

  further. People v. Rios, 

, ¶ 7 n.1.

                IV.   Garcia’s Presence at Jury Selection

¶ 40   Garcia asserts that he was denied his right to be present for

  jury selection. The record, however, refutes this contention and

  shows that he was present for voir dire and other parts of the trial.


                                    21
  Each transcript of the proceedings shows that Garcia was present.

  Although he was late to some proceedings, the trial court waited for

  him to arrive before beginning the substantive part of the

  proceedings.

                    V.   Sufficiency of the Evidence

¶ 41   Garcia next contends that the evidence was insufficient to

  support his convictions. We are not persuaded.

¶ 42   In analyzing the sufficiency of evidence, we consider whether

  the relevant evidence, both direct and circumstantial, when “viewed

  as a whole and in the light most favorable to the prosecution, is

  substantial and sufficient to support a conclusion by a reasonable

  mind that the defendant is guilty of the charge beyond a reasonable

  doubt.” People v. Harrison, 

 (citation omitted).

¶ 43   According to Garcia, the prosecution presented insufficient

  evidence of (1) his identity as the person who attempted to sell

  Kerr’s property at the pawnshops and (2) the value of the items.

                         A.    Garcia’s Identity

¶ 44   As charged here, a person commits theft if the person

  “knowingly obtains, retains, or exercises control over anything of

  value of another without authorization” and “[i]ntends to deprive the


                                   22
  other person permanently of the use or benefit” of the thing of

  value. § 18-4-401(1)(a), C.R.S. 2022. A customer who knowingly

  gives a pawnbroker false information, as defined by statute,

  commits a criminal offense. § 29-11.9-104(5), C.R.S. 2022.

¶ 45   Garcia argues that, because neither pawnbroker identified him

  in court as the seller of Kerr’s property, “there was only

  circumstantial evidence of any purpose to deprive Dr. Kerr of her

  belongings.” But such intent may be proved by either direct or

  circumstantial evidence, see Harrison, ¶ 32, and there was ample

  evidence that Garcia was the person trying to sell Kerr’s property.

¶ 46   Both Kerr and the detective who interviewed Garcia identified

  Garcia in court. Garcia admitted during the interview that he sold

  items belonging to Kerr at the pawnshops. The prosecution

  presented a surveillance video showing Garcia at one pawnshop.

  Both pawnshop owners testified about their interactions with a man

  named Kenneth Garcia who was selling property that the police

  later determined belonged to Kerr. The prosecution also presented




                                    23
  multiple pawnshop tickets from those sales that included the name

  Kenneth Garcia.6

¶ 47   Moreover, the evidence showed that Garcia had items

  belonging to Kerr in his storage unit, and he admitted he was the

  only person with access to it. True, in his police interview, Garcia

  asserted both that he did not know that the property belonged to

  Kerr and that he was planning to return it to her after storing it for

  safekeeping. Yet he told Kerr that he did not know what happened

  to her property when she confronted him upon her return from

  vacation.

¶ 48   Given all this, the evidence was more than sufficient to

  support the jury’s findings that Garcia took Kerr’s property with the

  intent to permanently deprive her of it and that Garcia gave false

  information to the pawnbrokers about that property.




  6 Although Garcia claims that the name Kenneth Garcia is common
  in Denver, no evidence admitted at trial supports this claim.
  Moreover, the prosecution presented evidence showing more than
  that the tickets bore the same name as Garcia’s. Cf. People v.
  Cooper, 

 (Colo. App. 2004) (noting that such
  documentary evidence might be insufficient in a habitual criminal
  trial). The other evidence pointing to Garcia was abundant.

                                    24
                     B.    Value of Stolen Property

¶ 49   To prove theft as a class 4 felony, the prosecution must

  demonstrate that the value of the stolen property is $20,000 or

  more but less than $100,000. § 18-4-401(2)(h). To prove theft from

  an at-risk person as a class 3 felony, the prosecution must

  demonstrate that the value of the stolen property is at least $500.

  § 18-6.5-103(5), C.R.S. 2022.7

¶ 50   To prove this value, the prosecution must present “competent

  evidence of the reasonable market value of the item at the time of

  the commission of the alleged offense.” People v. Jaeb, 

, ¶ 40. “Market value is what a willing buyer will pay in cash to

  the true owner for the stolen items.” 

¶ 51   In this case, the prosecution presented an expert, Dewey

  Smith, who testified about the value of the stolen items. Garcia

  argues that this evidence was not sufficient to establish the value

  because Smith’s appraisal was speculative. According to Garcia,

  Smith’s opinion was based on photographs of some items in pristine




  7Kerr was an “[a]t-risk adult” because she was seventy years of age
  or older at the time of the crimes. § 18-6.5-102(2), C.R.S. 2022.

                                   25
  condition rather than a review of the missing items in their actual

  condition.

¶ 52   During his testimony, Smith discussed deterioration and how

  the actual condition of an item may impact its value. He testified

  that he considered each item’s condition and potential deterioration

  when determining the value of all the items. Most significantly,

  Smith testified that, even if all the items he considered had been in

  “poor” condition — the worst condition ranking he used during his

  evaluation — the market value of the items listed as stolen by Kerr

  would still have exceeded $20,000.

¶ 53   This evidence was sufficient to demonstrate that the value of

  the property met the statutory thresholds at issue here.

                   VI.   Expert Witness Qualification

¶ 54   Garcia asserts that the trial court erred “by admitting the

  testimony of an unqualified ‘expert’ as to value,” referring to Smith’s

  testimony. But while Garcia points to various facts and procedural

  history surrounding Smith’s testimony, as well as to case law

  pertaining to whether a witness is qualified as an expert, Garcia

  makes no attempt to apply the law to the facts here. He merely

  offers a description of the applicable law and declares, without


                                    26
  analysis, that the trial court erred. Because Garcia provides no

  analysis or argument to support his conclusion, we conclude that

  he has not adequately presented this issue, and we decline to

  consider it. See People v. Hebert, 

; People v.

  Hill, 

 (Colo. App. 2009).

                 VII. Alleged Prosecutorial Misconduct

¶ 55   Finally, Garcia maintains that the trial court erred by failing to

  address prosecutorial misconduct during voir dire, opening

  statements, and closing arguments. He is mistaken.

                           A.    Relevant Law

¶ 56   In reviewing a claim of prosecutorial misconduct, “we consider

  whether the prosecutor’s conduct was improper and whether any

  impropriety requires reversal.” Walker, ¶ 27. “Whether a

  prosecutor’s statements constitute misconduct is generally a matter

  left to the trial court’s discretion.” Domingo-Gomez v. People, 

 (Colo. 2005). We will not disturb the trial court’s

  rulings on alleged misconduct absent a showing of an abuse of

  discretion. Walker, ¶ 27.

¶ 57   Garcia’s claims are unpreserved because he did not raise them

  in the trial court. Where a claim of error is not preserved, we may


                                    27
  reverse only if plain error occurred. Hagos v. People, 

. A trial court’s failure to address alleged prosecutorial

  misconduct can be plain error only if the conduct was “flagrantly,

  glaringly, or tremendously improper.” Walker, ¶ 28 (citation

  omitted); see also Hagos, ¶ 23 (reversals on plain error review “must

  be rare to maintain adequate motivation among trial participants to

  seek a fair and accurate trial the first time”).

                             B.    Application

¶ 58   Garcia alleges four instances of prosecutorial misconduct.

¶ 59   First, during voir dire, the prosecutor told prospective jurors

  that “Mr. Garcia’s asked for a trial.” Garcia argues that this

  comment encouraged jurors to blame him for having to attend jury

  duty during a pandemic and that this comment was a

  misrepresentation of the record because Garcia had agreed to a plea

  deal (which the trial court had rejected). In context, however, the

  prosecutor simply acknowledged that this case presented one of the

  first jury trials conducted after the start of the pandemic. The

  prosecutor also emphasized that “a trial is something that is the

  cornerstone of the criminal justice system” and Garcia was “entitled

  to have a trial.” And both parties were able to question prospective


                                     28
  jurors about whether they would be comfortable serving on the jury

  during the COVID-19 pandemic. We thus see no real danger that

  jurors interpreted the prosecutor’s anodyne comment as placing

  blame on Garcia or suggesting that they should harbor bias against

  him as a result.

¶ 60   Second, in opening statement, the prosecutor referred to Kerr

  as “our victim” before immediately clarifying that “I guess a legal

  term would be our alleged victim at this point.” The prosecutor

  later again referred to Kerr as “our victim.” A prosecutor’s reference

  to an alleged victim as “our victim,” however, is not misconduct per

  se, and nothing about the context here renders it such. See People

  v. Williams, 

 (Colo. App. 1997) (holding that a

  prosecutor’s references to “our victim,” “my victim,” and “your

  witnesses” were not improper), rev’d on other grounds, 

  (Colo. 1999).

¶ 61   Third, in closing, the prosecutor argued the following about

  whether the evidence showed reasonable doubt about Garcia’s guilt:

            Folks, our argument to you, if you were to find
            reasonable doubt here, you would have no
            choice but to come up with some — but to
            speculate or to formulate some sort of reason
            to let the defendant off the hook, because the


                                    29
            evidence that you have heard, that has been
            accepted by the court, that’s in the binder and
            it’s on those tapes, shows that there is no
            reasonable doubt. There is no hesitation here.
            There’s nothing to imagine, there’s nothing to
            speculate about. The defendant is guilty.

  According to Garcia, the prosecutor improperly asserted that the

  jury would need to speculate in order to find him not guilty. But in

  context, the prosecutor merely argued that the evidence did not

  support the defense’s theory, which is not misconduct. See Walker,

  ¶ 41 (“Commenting on the lack of evidence supporting a defense

  theory does not shift the burden of proof.”).

¶ 62   Fourth, Garcia says in his opening brief that the prosecutor

  “simply made up evidence out of thin air” during closing argument

  by remarking that Garcia had reportedly hired “strippers” and

  “former strippers,” as well as people named “Alex” and “Katie,” to

  work for him on Kerr’s property. As Garcia acknowledges in his

  reply brief, however, the prosecutor referred to information that

  came into evidence through Garcia’s police interview. It is not

  improper for a prosecutor to comment on the evidence. See People

  v. Conyac, 

.

¶ 63   We therefore reject the claims of prosecutorial misconduct.



                                    30
                           VIII. Conclusion

¶ 64   The judgment is affirmed.

       JUDGE WELLING and JUDGE JOHNSON concur.




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