The People of the State of Colorado v. Adrian Elijah Salazar

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


                                                                SUMMARY
                                                           November 2, 2023

                                2023CA102

No. 22CA0331, People v. Salazar — Criminal Law — Jury
Instructions — Sexual Assault on a Child by One in a Position
of Trust — Mens Rea — Knowingly

     A division of the court of appeals considers a criminal

defendant’s challenge to the trial court’s jury instructions defining

the offense of sexual assault on a child by one in a position of trust

under section 18-3-405.3(1), C.R.S. 2023. Specifically, he contends

that the instructions were erroneous because they failed to apply

the culpable mental state of the offense (“knowingly”) to the element

that he occupied a position of trust with respect to the child.

Addressing a novel issue in Colorado, the division concludes that

the culpable mental state does not apply to the position of trust

element. Because the division also rejects his other claims, the

division affirms the judgment.
COLORADO COURT OF APPEALS                                           2023CA102


Court of Appeals No. 22CA0331
Weld County District Court No. 19CR528
Honorable James F. Hartmann, Jr., Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Adrian Elijah Salazar,

Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                   Division IV
                          Opinion by JUDGE NAVARRO
                         Grove and Bernard*, JJ., concur

                          Announced November 2, 2023


Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
¶1    Defendant, Adrian Elijah Salazar, appeals the judgment of

 conviction imposed on jury verdicts finding him guilty of several

 offenses based on his sexual abuse of two children. Among other

 offenses, he was convicted of multiple counts of sexual assault on a

 child by one in a position of trust. On appeal, Salazar contends

 that the trial court’s jury instructions were erroneous because they

 failed to apply the culpable mental state of this offense (“knowingly”)

 to the element that he occupied a position of trust with respect to

 the children. We disagree and hold that the culpable mental state

 does not apply to the position of trust element. Because we also

 reject Salazar’s other challenges to the judgment, we affirm.

                 I.   Factual and Procedural History

¶2    The children at issue, M.R. and M.M., were less than fifteen

 years old at the time of the offenses. M.R.’s mother and Salazar

 were friends who met through their work. Salazar helped around

 M.R.’s house and ultimately spent time alone with him. M.M. is

 Salazar’s cousin; Salazar also spent significant time alone with him.

 When alone with M.R. or M.M., Salazar played video games with

 them, took them to restaurants and to other activities, and had

 them stay overnight at his home.


                                    1
¶3    After suspicions arose about the nature of Salazar’s

 relationships with the boys, they underwent forensic interviews.

 During their initial interviews, both M.M. and M.R. denied any

 sexual abuse. At a later interview, however, M.M. disclosed that

 Salazar had sexually abused him.

¶4    Based on that interview, the police arrested and interviewed

 Salazar. He confessed to multiple instances of sexual contact with

 both M.M. and M.R., including acts of sexual contact with M.R. of

 which the police were then unaware (but which M.R. later

 confirmed).

¶5    Officers then conducted a second forensic interview with M.R.,

 who again did not disclose any sexual abuse. Shortly before trial,

 however, M.R. disclosed Salazar’s sexual assaults of him, and M.R.

 testified to those assaults at trial. M.M. also testified that Salazar

 had sexually assaulted him. Salazar did not testify at trial.

¶6    A jury convicted Salazar of sexual assault on a child, sexual

 assault on a child as part of a pattern of abuse, sexual assault on a

 child by one in a position of trust, and sexual assault on a child




                                    2
 who was less than fifteen years old by one in a position of trust and

 as part of a pattern of abuse.1

¶7    On appeal, Salazar contends that the trial court

 (1) erroneously instructed the jury on the culpable mental state for

 the position of trust charges; (2) admitted improper character

 evidence; (3) admitted improper testimony concerning probable

 cause that he committed the offenses; and (4) permitted

 prosecutorial misconduct. We do not detect reversible error.

                   II.    Alleged Instructional Error

¶8    Salazar argues that the trial court erred by failing to instruct

 the jury that the culpable mental state of “knowingly” applies to the

 position of trust element of the offense of sexual assault on a child

 by one in a position of trust. We disagree.

                         A.   Standard of Review

¶9    We review de novo whether the jury instructions adequately

 informed the jury of the governing law. People v. Garcia, 

 The prosecution also charged Salazar with twenty-seven counts of

 sexual exploitation of a child based on his possession of sexually
 explicit videos depicting children. Those counts were severed from
 the other charges. Salazar pleaded guilty to two exploitation counts
 after the jury’s verdicts on the other charges.

                                    3
  80, ¶ 9, aff’d, 

. We also review de novo “questions of

  statutory interpretation.” Manjarrez v. People, 

.

  While trial courts have “broad discretion to determine the form and

  style of jury instructions,” an elemental instruction “should

  substantially track the language of the statute describing the

  crime.” People v. Grudznske, 

, ¶ 48 (citation omitted).

                            B.   Relevant Law

¶ 10   “In interpreting a statute, we give effect to the intent of the

  legislature.” Gorman v. People, 

 (Colo. 2000). To

  do so, “[w]e begin with the plain language of the statute, reading the

  words and phrases in context and construing them according to

  their common usage.” Manjarrez, ¶ 19.

¶ 11   “The power to define criminal conduct and to establish the

  legal components of criminal liability is vested in the General

  Assembly.” Gorman, 

. The culpable mental state of a

  criminal statute “may speak to conduct, or to circumstances, or to

  result, or to any combination thereof, but not necessarily to all

  three.” People v. Cross, 

 (Colo. 2006), abrogated in

  part on other grounds by Counterman v. Colorado, 

, 

 (2023). “When a statute defining an offense prescribes


                                     4
  as an element thereof a specified culpable mental state, that mental

  state is deemed to apply to every element of the offense unless an

  intent to limit its application clearly appears.” § 18-1-503(4), C.R.S.

  2023. Under this rule and its exception, we must carefully consider

  whether the legislature intended that the expressed culpable mental

  state of the offense applies only to certain elements. Cross, 

.

¶ 12   Section 18-3-405.3(1), C.R.S. 2023, provides,

                Any actor who knowingly subjects another not
                his or her spouse to any sexual contact
                commits sexual assault on a child by one in a
                position of trust if the victim is a child less
                than eighteen years of age and the actor
                committing the offense is one in a position of
                trust with respect to the victim.

  A person acts “knowingly” with respect to conduct or circumstances

  described by a statute when “he is aware that his conduct is of

  such nature or that such circumstance exists.” § 18-1-501(6),

  C.R.S. 2023. One in a “position of trust” includes, but is not

  limited to,

                any person who is a parent or acting in the
                place of a parent and charged with any of a
                parent’s rights, duties, or responsibilities
                concerning a child, including a guardian or
                someone otherwise responsible for the general


                                       5
            supervision of a child’s welfare, or a person
            who is charged with any duty or responsibility
            for the health, education, welfare, or
            supervision of a child, including foster care,
            child care, family care, or institutional care,
            either independently or through another, no
            matter how brief, at the time of an unlawful
            act.

  § 18-3-401(3.5), C.R.S. 2023.

                            C.    Relevant Facts

¶ 13   The trial court gave the jury the following instruction for all

  counts of sexual assault on a child by one in a position of trust:

            The elements of the crime of Sexual Assault on
            a Child by One in a Position of Trust as
            charged in counts 1, 2 (referring to [M.M.])[,] 5,
            and 6 (referring to [M.R.]) are:

            1. That Adrian Elijah Salazar,

            2. in the State of Colorado, at or about the
            date and place charged,

            3. knowingly,

                  a. subjected ([M.M. or M.R.]), a child
                  under eighteen years of age, who was not
                  his spouse

                  b. to any sexual contact, and

            4. Adrian Elijah Salazar was in a position of
            trust with respect to ([M.M. or M.R.]).




                                     6
  The court also instructed the jury on the statutory definition of

  “knowingly” as well as the meaning of one in a “position of trust.”

  The jury returned guilty verdicts on all four position of trust counts.

                            D.    Application

¶ 14   We reject Salazar’s contention that the court erroneously

  instructed the jury by not wording the instruction so as to apply the

  culpable mental state of “knowingly” to the position of trust element

  of sexual assault on a child by one in a position of trust. We hold,

  as an apparent matter of first impression, that the mental state of

  “knowingly” does not apply to the position of trust element.

¶ 15   Although “knowingly” presumptively applies to every element

  of an offense when a statute prescribes this mental state, “this

  general rule contains an exception that applies to this case.” Cross,

  

; see § 18-1-503(4). The structure of section 18-3-

  405.3(1) makes this plain. See Cross, 

  (considering the “statutory phraseology,” the statute’s “actual

  wording,” and the statement of legislative intent when deciding that

  the prescribed mental state of “knowingly” did not apply to all




                                     7
  elements).2 “Knowingly” appears in the independent clause defining

  the conduct constituting sexual assault on a child by one in a

  position of trust: “Any actor who knowingly subjects another not his

  or her spouse to any sexual contact commits [this offense].” § 18-3-

  405.3(1). Hence, “knowingly” applies to this conduct.

¶ 16   The position of trust element, however, is offset by the

  conjunction “if” and appears in a different clause. § 18-3-405.3(1).

  Grammatically, “if” is widely understood to introduce a conditional

  clause, which is a clause that states a condition necessary “for the

  truth or occurrence of the main statement of a sentence.” United

  States v. Flores, 

 (5th Cir. 2016) (citation

  omitted). This separate conditional clause describes the


  2 In Counterman v. Colorado, 

, ___, 

,

  2111 (2023), the United States Supreme Court addressed a
  Colorado stalking statute identical to the one at issue in People v.
  Cross, 

 (Colo. 2006), and decided that the First
  Amendment requires proof that the defendant had some subjective
  understanding of the threatening nature of his statements. But the
  Court did not mandate a mental state of “knowingly,” concluding
  instead that a mental state of recklessness was sufficient. See
  Counterman, 

, 143 S. Ct. at 2117-18. In any event,
  the Court’s constitutional analysis has no bearing on the Colorado
  Supreme Court’s interpretation of the legislature’s intent in the
  statute at issue in Cross, a question of Colorado law. See Willhite v.
  Rodriguez-Cera, 

 (“[T]his court is the final authority
  on questions of Colorado law.”).

                                    8
circumstances necessary for commission of the offense — including

“the actor committing the offense is one in a position of trust with

respect to the victim.” § 18-3-405.3(1). Because “knowingly” does

not appear in that separate clause, “knowingly” does not apply to

this circumstance.3 The trial court’s instruction here accurately

tracked the statutory language with respect to the position of trust

element. See Cross, 

 (“The trial court’s instruction

possesses the virtue of utilizing the statute’s actual language.”);

Garcia, ¶ 10 (“Instructions that accurately track the language of the

applicable statute are generally sufficient.”).4




3 In his opening brief, Salazar acknowledges that the position of

trust element represents an essential circumstance of the offense,
which he also describes as the accused’s “parent-like status” over a
child. To the extent Salazar changes course in his reply brief
(without explanation) and says this element defines conduct
essential to the offense, we are not persuaded. As its name implies,
the “position of trust” element refers to a circumstance or situation
of a person, not to any particular action that person takes. See
People v. Roggow, 

 (explaining that the objective of
the position of trust statute is “to protect vulnerable children from
adult offenders uniquely situated to exploit those children”)
(emphasis added).

4 The elemental instruction here seemed to apply “knowingly” to the

element of the victim’s age. Because neither party argues that this
was erroneous, we express no opinion on that question.

                                    9
¶ 17   Bolstering our view are decisions addressing statutes with

  analogous structures. For instance, the decision in Grudznske,

  ¶ 63, concerned the extreme indifference murder and extreme

  indifference assault statutes. A division of this court concluded

  that “the clear structure of the extreme indifference statutes

  demonstrate[s] that knowingly applies only to the action and

  outcome elements of the statutes, not the circumstances element.”

  Id. at ¶ 65. In support, the division explained that the

  circumstances element (“[u]nder circumstances evidencing an

  attitude of universal malice manifesting extreme indifference to the

  value of human life generally,” § 18-3-102(1)(d), C.R.S. 2023)

  appeared in a different clause than “knowingly” and the action and

  outcome elements (“knowingly engages in conduct which creates a

  grave risk of death to a person, or persons, other than himself, and

  thereby causes the death of another,” id.). Grudznske, ¶ 65.

¶ 18   Additionally, in the statute examined in Copeland v. People, 

 (Colo. 2000), the mental states specified by the fourth

  degree arson statute (“knowingly or recklessly”) appeared before

  both the proscribed conduct (“starts or maintains a fire . . . on his

  own property or that of another”) and the proscribed result (“and by


                                    10
  so doing places another in danger of death or serious bodily

  injury”). 

 at 1284 (quoting § 18-4-105(1), C.R.S. 2023). Still, our

  supreme court concluded that the mental state requirement did not

  apply to the result element because the statute’s “phraseology . . .

  demonstrate[d] the legislature’s intent to hold the arsonist

  responsible for the fire’s result, regardless of the arsonist’s

  awareness of the fire’s danger to other persons or property.” Id. at

  1286; see also People v. Benzor, 

 (Colo. App.

  2004) (holding that, because “knowingly” appeared only in the

  conduct clause of the statute but not in the circumstance clause,

  the legislature intended that the “mental state ‘knowingly’ apply

  only to the conduct element of the crime of escape following

  conviction”); People v. Metcalf, 

 (Colo. App.

  1996) (concluding that neither the specified mental state of “intent”

  nor an implied mental state of “knowingly” applied to all elements of

  the statute proscribing violation of a custody order).

¶ 19   Contrary to Salazar’s view, the statute here is not like the one

  at issue in Auman v. People, 

 (Colo. 2005), and People

  v. Bornman, 

 (Colo. App. 1997). At the time of those

  cases, the relevant theft statute said, in part, that “[a] person


                                     11
  commits theft when he knowingly obtains or exercises control over

  anything of value of another without authorization.” § 18-4-401(1),

  C.R.S. 2004. The mental state of “knowingly” appeared in close

  proximity to the disputed element at issue — “without

  authorization.” Given this proximity (the mental state and the

  circumstance appeared in the same clause), the courts recognized

  that “knowingly” applied to the “without authorization”

  circumstance. See Auman, 

; Bornman, 

. In this case, however, the position of trust element in

  section 18-3-405.3 appears in an entirely separate clause from the

  mental state requirement and not near it. So the mental state

  requirement does not apply to the position of trust element.

¶ 20   Our interpretation also aligns with the purposes behind the

  statute. Cf. Metcalf, 

 (noting that the division’s

  plain language reading of a statute furthered the statute’s purpose

  of protecting children from those who intend to deprive the lawful

  custodian of custody of the child). The position of trust statute

  “reflect[s] the General Assembly’s overarching intent to target those

  offenders who are entrusted with special access to a child victim

  and who exploit that access to commit an offense against the child.”


                                    12
  Manjarrez, ¶ 23 (quoting People v. Roggow, 

). The

  legislature has recognized that “a child is more vulnerable to abuse

  if an offender is known to the child or is entrusted with the care of

  the child by one who is otherwise responsible for that care.” Id. at

  ¶ 24 (citation omitted). Regardless of whether a person knows or

  subjectively believes they are in a position of trust as defined by

  statute, “[a] person in a position of trust is more likely to be alone

  with a child, successfully lure a child to a place of isolation, or

  manipulate a child to submit to abuse or keep it secret.” Id.

  (citation omitted).

¶ 21   Accordingly, the legislature “intended to target adults who, by

  virtue of their position relative to the victim, are trusted to be alone

  with, and responsible for, a child.” Id. at ¶ 25; see also Pellman v.

  People, 

 (Colo. 2011) (“In adopting the position

  of trust statute, the legislature focused on those instances in which

  a defendant has gained access to a child through the position of

  trust he or she holds.”). And “a defendant need not be expressly

  charged with a particular duty or responsibility over the child at the

  time of the unlawful act in order to occupy a position of trust.”

  Roggow, ¶ 2 (emphasis added). Rather, “a defendant may occupy a


                                     13
  position of trust with respect to the victim where an existing

  relationship or other conduct or circumstances establish that the

  defendant is entrusted with special access to the child victim.” Id.;

  see id. at ¶ 21 (“To hold otherwise would limit the statute’s

  otherwise broad definition of ‘position of trust’ and undermine its

  larger objective to protect vulnerable children from adult offenders

  uniquely situated to exploit those children.”). Hence, when an

  offender occupies a position of trust with respect to a child, the

  legislature’s intent to protect the child in this circumstance depends

  in no way on whether the offender subjectively believes they are in a

  position of trust. Cf. Gorman, 

 (“In analogous

  circumstances, the defendant’s awareness of the victim’s age is not

  the focus of the statute’s mens rea requirement. The legislature

  holds the defendant responsible for the offense if the defendant

  engaged in the prohibited conduct and the victim’s age fell within

  the statutorily defined age element.”).

¶ 22   We recognize that the relevant model jury instruction may

  imply that “knowingly” applies to the position of trust element of

  this offense. See COLJI-Crim. 3-4:40 (2022). But courts are not

  bound by the model instructions because they are not law and are


                                    14
  not authoritative. Krueger v. Ary, 

 (Colo.

  2009); see Grudznske, ¶ 66 (“Nor do we reach a contrary conclusion

  based on the fact that the model jury instruction used knowingly to

  apply to the circumstances element of the extreme indifference

  offenses.”). Instead, courts should “‘give weight’ to the model

  instructions but must ultimately ensure that an instruction tracks

  the language of the statute.” Grudznske, ¶ 66 (citation omitted); see

  Garcia v. People, 

 (explaining that, because “the

  model instructions weren’t ‘approved as accurate reflections of the

  law’ and were merely ‘intended as helpful resource material,’” they

  “are not a safe harbor that insulates instructional error from

  reversal”) (quoting COLJI-Crim. Preface (2008)). Here, the trial

  court’s instruction followed the language of the statute.

¶ 23   In sum, because section 18-3-405.3(1) does not apply the

  “knowingly” mental state to the position of trust element of the

  statute, the elemental instruction here was correct.

                    III.   Alleged Character Evidence

¶ 24   Salazar contends that the trial court violated CRE 404(a) by

  admitting a portion of his recorded interrogation video that




                                    15
  indicated his bad character for liking “younger guys.” We do not

  discern reversible error.

                         A.   Relevant Principles

¶ 25   All relevant evidence is admissible unless otherwise provided

  by constitution, statute, or rule. See People v. Kern, 

,

  ¶ 12; CRE 402. “Evidence of a person’s character or a trait of his

  character is not admissible for the purpose of proving that he acted

  in conformity therewith on a particular occasion,” except in a few

  circumstances that do not apply here. CRE 404(a). Character

  evidence under CRE 404(a) “is a generalized description of a

  person’s disposition, or of the disposition in respect to a general

  trait, such as honesty, temperance or peacefulness, that usually is

  regarded as meriting approval or disapproval.” People v. Trujillo,

  

 (citation omitted).

¶ 26   Salazar adequately preserved this issue. While defense

  counsel did not cite CRE 404(a) specifically when objecting to the

  material at issue, counsel argued that the pertinent portion of the

  video “implie[d] a general character and a propensity to commit the

  types of assault and offenses charged by the People[,] which would

  not be admissible.” This argument implicated CRE 404(a).


                                    16
¶ 27   Because Salazar preserved the claim, we review any violation

  of CRE 404(a) under the harmless error standard applicable to

  nonconstitutional error. See Yusem v. People, 

, 469

  n.16 (Colo. 2009) (“Erroneous admission of CRE 404(b) evidence is

  not error of constitutional dimension.”). Under this standard,

  “reversal is required unless the error does not affect the substantial

  rights of the accused.” 

. “If a reviewing court can say

  with fair assurance that, in light of the entire record, the error did

  not substantially influence the verdict or impair the fairness of the

  trial, the error may properly be deemed harmless.” Kern, ¶ 13.

                           B.    Relevant Facts

¶ 28   During Salazar’s interrogation, and shortly after he confessed

  to having sexual contact with both M.M. and M.R. (including anal

  and oral sex), Salazar said he hated “that part about [himself]” and

  he did not know whom he could talk to about it. The interviewing

  detective asked whether Salazar had ever tried to talk about it, and

  he replied that “it’s hard to go up to somebody and be like, I like




                                     17
  younger guys” and “I just had like cravings and I don’t know how to

  deal with it and it was just hard.”5

¶ 29   Salazar sought to redact this portion of the interview, but the

  trial court found the statements admissible.

                             C.   Application

¶ 30   We need not decide whether the court erred by admitting

  Salazar’s statements about “liking younger guys” and having

  “cravings” because any error was harmless given the other admitted

  evidence that he does not challenge on appeal.

¶ 31   Any prejudicial impact of the challenged statements depended

  on their connection to Salazar’s confession to sexual contact with

  M.M. and M.R. because that confession contextualized who Salazar

  considered to be “younger guys.” In fact, his statement about liking

  “younger guys” immediately followed his confession to sexual

  contact with the victims and was part and parcel of that confession.

  But Salazar does not challenge the admission of that confession




  5 This reflects our best effort at understanding the recorded

  interrogation, which is difficult to hear at times. Our description is
  the same as Salazar’s transcription of the interview.

                                    18
  into evidence.6 It seems unlikely that the jury would give any

  weight to his comment about liking “younger guys” unless the jury

  also believed his confession to sexual contact with the victims.

  That is, the jury likely would have either believed both Salazar’s

  confession to the sexual contact and his comment about liking

  “younger guys” or disbelieved both.

¶ 32   Moreover, it is highly unlikely that the jury would have given

  greater weight to Salazar’s confession to liking “younger guys”

  generally than to his confession to acting on that predilection on

  multiple occasions by sexually assaulting M.M. and M.R. See, e.g.,

  People v. Cross, 

, ¶ 26 (concluding that the admission

  of testimony about the defendant’s physical and emotional abuse of

  the victim was not unduly prejudicial “in the context of the

  allegation that [the defendant] shot the victim twice in the head”).

  Hence, if the jury did not otherwise believe Salazar’s confession to

  sexually assaulting the boys on multiple occasions, the challenged

  comments would not have tipped the scales toward conviction.


  6 During trial, defense counsel argued that Salazar confessed to the

  crimes merely to end the interrogation, not because the confession
  was true. On appeal, Salazar does not contend that his confession
  was involuntarily made or was otherwise inadmissible.

                                    19
¶ 33    Finally, the evidence against Salazar was very strong because

  his confession corroborated the victims’ testimony, as did text

  messages and videos. People v. Mendenhall, 

  (holding in part that an error was harmless because there was

  overwhelming evidence that the defendant was guilty). And the

  prosecutor never mentioned the “younger guys” comment during

  trial. See People v. Compos, 

 (“Moreover, when

  a reference to improper conduct is fleeting, . . . the potential

  prejudice is minimized.”), aff’d in part and vacated in part, 

.

¶ 34    Consequently, we conclude that the brief mention of Salazar’s

  liking “younger guys” and having “cravings” did not substantially

  influence the verdict or affect the fairness of the trial. Hagos v.

  People, 

.

               IV.   Evidence Pertaining to Probable Cause

¶ 35    Salazar contends the trial court erred by permitting improper

  testimony about the police having probable cause to arrest him. We

  see no need for reversal.




                                     20
               A.    Standard of Review and Preservation

¶ 36   The parties dispute whether this issue was preserved. We

  need not resolve this dispute because, even assuming Salazar

  preserved this claim, any error was harmless.

                            B.     Relevant Facts

¶ 37   During trial, the prosecutor asked Officer Adam Cronquist

  whether he had arrested Salazar on a particular date. Defense

  counsel objected, arguing that the facts that Salazar had been

  arrested and that he was in custody during this case were irrelevant

  and unfairly prejudicial.7 After the court overruled the objection,

  the following exchange then took place:

            [Prosecutor]: Did you arrest someone by the
            name of Adrian Elijah Salazar on February
            25th of 2019?

            [Officer]: Yes, sir.

            [Prosecutor]: And why did you make that
            arrest?

            [Officer]: Detective [Erin] Gooch had sent out
            an email indicating she had probable cause to
            arrest him.




  7 We note that defense counsel had already elicited evidence of

  Salazar’s arrest from a previous witness.

                                      21
  Later, when questioning Detective Gooch, the prosecutor asked:

             [Prosecutor]: [Detective], after that forensic
             interview, what decision did you make or what
             did you do after collecting those drawings?

             [Detective]: I just wrote [a] warrantless arrest
             affidavit. And then I sent out an email kind of
             [to] the Department to let them know that I
             had probable cause.

¶ 38   Before closing arguments, the court instructed the jury that

  the fact that Salazar had been arrested and remained in custody

  while this case was pending “is irrelevant and cannot be used as

  [a]n inference of guilt and cannot prejudice Mr. Salazar.” The court

  explained, “It is not evidence, does not prove anything, and the fact

  of his incarceration must not be considered for any purpose.”

                  C.   Relevant Law and Its Application

¶ 39   Generally, when probable cause to arrest the defendant is not

  at issue, it is improper to present evidence about obtaining an

  arrest warrant or possessing probable cause. People v. Mullins, 

 (Colo. App. 2004). But we conclude that any error in

  admitting the challenged evidence was harmless in this case.

¶ 40   The evidence here did not resemble the detailed testimony

  admitted in Mullins, in which an officer testified that (1) the police



                                     22
  must convince a judge that they have sufficient information to

  believe the defendant committed a crime and (2) a judge had found

  probable cause in that case. See 

 (“The facts that the police

  believed they had enough evidence and that a judge found there

  was probable cause to arrest defendant had no rational tendency to

  prove that defendant committed the assault.”). Moreover, the other

  factors favoring reversal in Mullins are absent here. See 

 at 301-

  02 (reversing in light of (1) the detailed testimony; (2) the fact that

  the improper evidence undermined the defendant’s self-defense

  claim; (3) the trial court’s statement that “the evidence indicated a

  ‘very close case of self-defense’”; and (4) the prosecutor’s improper

  closing argument about self-defense). And nothing in Mullins

  reveals that the trial court there gave a limiting instruction like the

  one the court gave here.

¶ 41   Nor is the testimony challenged here akin to the extensive

  evidence of the prosecution’s screening process preceding its

  charging decisions admitted in Mendenhall, ¶¶ 54-59, or the

  prosecutor’s closing argument describing a “screening process” that

  weeds out weak cases in Domingo-Gomez v. People, 

 (Colo. 2005) (“The prosecutor’s reference to a ‘screening


                                     23
  process’ is improper because it both hints that additional evidence

  supporting guilt exists and reveals the personal opinion of the

  prosecutor.”). In any event, consistent with our analysis, the

  appellate courts in those cases concluded that the errors did not

  warrant reversal. See Mendenall, ¶¶ 60-71; Domingo-Gomez, 

.

¶ 42   To reiterate, the testimony here was brief and lacked detail.

  Probable cause was mentioned twice, but the witnesses did not

  describe how officers obtain probable cause, what that means, or

  whether a judge made a probable cause finding. The prosecutor did

  not mention probable cause during closing argument, and the court

  gave a pointed instruction limiting the jury’s use of the arrest

  evidence. See People v. Dominguez-Castor, 

  (“Absent a contrary showing, we presume that the jury followed that

  instruction.”).

¶ 43   Given all this, we conclude that the alleged error did not

  substantially influence the verdict or impair the fairness of the trial.

  See Kern, ¶ 13.




                                     24
                 V.    Alleged Prosecutorial Misconduct

¶ 44   Salazar’s final argument is that the trial court erred by failing

  to address, sua sponte, prosecutorial misconduct during closing

  arguments. We disagree.

                         A.   Relevant Principles

¶ 45   When reviewing a claim of prosecutorial misconduct, “we

  consider whether the prosecutor’s conduct was improper and

  whether any impropriety requires reversal.” People v. Walker, 

, ¶ 27. “Whether a prosecutor’s statements constitute

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

  Domingo-Gomez, 

. Therefore, we will not disturb

  the trial court’s rulings on alleged misconduct absent a showing of

  an abuse of that discretion. Walker, ¶ 27.

¶ 46   Because Salazar’s counsel did not object to the alleged

  misconduct in the trial court, we may reverse only if plain error

  occurred. See id. at ¶ 28. “[P]lain error occurs when there is (1) an

  error, (2) that is obvious, and (3) that so undermines the

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

  the reliability of the judgment of conviction.” Cardman v. People,

  

. To be plain, “an error must ‘be so obvious’ at


                                     25
  the time it is made ‘that a trial judge should be able to avoid it

  without the benefit of an objection.’” Id. at ¶ 34 (citation omitted).

¶ 47   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.” Hagos, ¶ 23. Thus, prosecutorial

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

  tremendously improper. Walker, ¶ 28.

                            B.    Relevant Facts

¶ 48   During closing argument, the prosecutor focused on the idea

  that M.M. and M.R. testified to similar experiences with Salazar.

  Then, after explaining the elements of the offenses and how the

  evidence supported each element, she returned to the victims’

  shared experiences. She argued,

             And I know it’s a big ask because it’s a big
             crime, but I am asking you to have today be
             the last day that you give these boys
             something new to share in common. Let today
             be the day that you tell both of these boys “we
             believe you.” Let today be the day that they
             share in common, that their courage in coming
             in here and talking about what happened to
             them is going to hold their abuser accountable.

             Even if their paths never cross ever again, let
             them know that somehow together all of the
             things that they shared in common were


                                     26
             convincing enough for you to become the
             criminal justice system right now. You get the
             last word. I don’t get it; they don’t get it; you
             get it. Make the last word be that these boys
             have something in common and that he is
             guilty of abusing both of them.

  In rebuttal, the prosecutor reiterated,

             Don’t make these boys wait any longer before
             you tell them that they are believed and before
             you convict this man of each and every thing
             that he is charged with.

  Defense counsel did not object to any of these arguments.

                             C.    Application

¶ 49   According to Salazar, the prosecutor improperly appealed to

  the jurors’ passions or prejudices and pressured them to find

  Salazar guilty to achieve justice for the victims.

¶ 50   Prosecutors may not use arguments calculated to inflame the

  passions and prejudices of the jury. People v. Sampson, 

. But although the prosecutor sailed close to the wind

  with some of the challenged comments, we need not decide whether

  the prosecutor erred because we conclude that the argument was

  not so egregious as to constitute plain error.

¶ 51   The premise of the prosecutor’s arguments was that the jury

  should convict Salazar if the jury believed the victims. And it is


                                     27
true that, if the jury believed the victims, Salazar committed sexual

assault on a child. See People v. Krutsinger, 

(Colo. App. 2005) (“[W]here the case turns on which witness the

jury believes, each side is entitled to argue that its witnesses

testified truthfully . . . .”). The prosecutor did not argue that the

jury should convict Salazar regardless of whether the jury believed

the victims but solely to do justice. Cf. People v. McBride, 

 (Colo. App. 2009) (holding that a prosecutor’s telling

jurors to “do justice for other strangers” was improper because it

suggested that guilty verdicts were necessary for justice). And

before the arguments at issue, the prosecutor methodically walked

through each element of each offense and explained how the

evidence supported each element. Therefore, the prosecutor’s

arguments, overall, were anchored in the evidence, not in emotion.

See People v. McMinn, 

, ¶ 61 (“Prosecutors may

comment on the evidence admitted at trial and the reasonable

inferences that can be drawn therefrom.”); see also People v.

Vialpando, 

, ¶ 23 (recognizing that a prosecutor may

use oratorical embellishment and metaphorical nuance).




                                   28
¶ 52   In addition, the prosecutor’s comments were fleeting within

  the context of closing argument and the trial at large. See Walker,

  ¶ 49 (discerning no plain error in prosecutor’s allegedly improper

  remarks because, among other things, they were fleeting). And

  defense counsel’s failure to object indicates counsel’s belief that the

  prosecutor’s arguments were not overly damaging. See Domingo-

  Gomez, 

.

¶ 53   For these reasons, as well as the strong evidence of Salazar’s

  guilt, we conclude that the prosecutor’s conduct “does not warrant

  the drastic remedy of reversal under the plain error standard.” 

.8

                             VI.   Conclusion

¶ 54   The judgment is affirmed.

       JUDGE GROVE and JUDGE BERNARD concur.




  8 To the extent Salazar appends a cumulative error argument to the

  end of his prosecutorial misconduct claim in his opening brief, we
  decline to address it because it is presented in a very conclusory
  fashion. See People v. Relaford, 

, ¶ 70 n.2 (“We do not
  consider bare or conclusory assertions presented without argument
  or development.”); People v. Mendoza, 

 (Colo. App.
  2011) (“If [the party] wanted a weightier resolution of the issue, it
  should have mounted a weightier contention. Gravitas begets
  gravitas.”) (citation omitted).

                                    29