February 12, 2015
The People of the State of Colorado, Plaintiff-Appellee,
Joann Dinapoli, Defendant-Appellant
Paso County District Court No. 10CR4504. Honorable Robert L.
H. Coffman, Attorney General, Katherine A. Aidala, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Anne Stockham,
Deputy State Public Defender, Denver, Colorado, for
by JUDGE DAILEY. Hawthorne and Dunn, JJ., concur.
[¶1] Defendant, Joann Dinapoli, appeals the
judgment of conviction entered after a jury found her guilty
of second degree assault. We affirm.
[¶2] K.M. testified as follows. Her dog and
defendant's dog " got into a tussle." After the
dogs separated, defendant screamed at K.M. In response, K.M.
mocked defendant's accent. Defendant then hit K.M. with a
" giant tree branch." Defendant hit her a second
time, dislocating her arm.
[¶3] A defense witness testified that after
the dogs fought, K.M. began swinging a leash that had a metal
clip on it. Defendant argued that she hit K.M. once to
protect herself and her dog from K.M.
[¶4] The jury found defendant not guilty of
harassment and two counts of second degree assault. As noted
above, it found her guilty of one count of second degree
[¶5] On appeal, defendant contends that she
is entitled to a new trial because (1) the trial court should
have told the jury that it would declare a mistrial if the
jury could not reach a unanimous verdict; and (2) the
prosecutor committed misconduct by referring to K.M. as the
" victim" during trial. We address and reject each
contention in turn.
[¶6] The jury sent the court the following
note during deliberations: " We have agreement on three
charges. What happens if we can't agree on the fourth
charge?" In response, over defendant's objection,
the court gave the jury a modified- Allen
Since it appears to the Court that your deliberations have
been somewhat lengthy, without a verdict being reached, the
Court wishes to suggest a few thoughts which you should
consider. In your deliberations, along with the evidence in
the case and all of the instructions previously given, it is
your duty as jurors to consult with one another and to
deliberate with a view towards reaching a verdict, if you can
do so without violence to individual judgment. Each of you
must decide the case for yourself but do so only after an
impartial consideration of the evidence with your fellow
In the course of your deliberations, do not hesitate to
reexamine your own views and change your opinion, if
convinced it is erroneous. But do not surrender your honest
conviction as to the weight or effect of evidence solely
because of the opinion of your fellow jurors or for the mere
purpose of returning a verdict. You are not partisans. You
are judges. Judges of the facts. Your sole interest is to
ascertain the truth from the evidence in the case.
With that, I am going to ask you to resume your
[¶7] After the jurors left the courtroom,
the court said, " I couldn't help notice the
reaction of juror number six. She was extraordinarily unhappy
with that requirement that they continue deliberations. But
that can happen sometimes."
[¶8] The court did not tell the jurors that
it would excuse them and declare a mistrial if they could not
reach a unanimous verdict on every count. On appeal,
defendant contends that this omission requires reversal. We
[¶9] We review a trial court's decision
regarding supplemental instructions for an abuse of
discretion. Gibbons v. People, 2014 CO 67, ¶
12, 328 P.3d 95. And if the defendant did not preserve her
appellate argument related to a supplemental instruction, we
review that argument for plain error. Id.
[¶10] Here, defendant did not preserve the
argument she raises on appeal: although she objected to the
court's giving a modified- Allen instruction,
she neither (1) requested a mistrial advisement nor (2)
objected to giving a modified- Allen instruction
without a mistrial advisement. See People v.
Cordova, 293 P.3d 114, 120 (Colo.App. 2011) (" To
preserve an issue for appeal, a defendant must alert the
trial court to the particular issue." ); People v.
Pahl, 169 P.3d 169, 183 (Colo.App. 2006) (An issue is
preserved where objection sufficiently alerts " the
trial court to a particular issue in order to give the court
an opportunity to correct any error." ).
[¶11] That said, we perceive no error, much
less plain error, here. In Gibbons, the supreme
court held that trial courts are not required to supplement a
modified- Allen instruction with a mistrial
advisement. Gibbons, ¶ 33. Under
Gibbons, although a trial court has discretion to
give the jury a mistrial advisement, it " should
consider exercising its discretion in rare circumstances, for
example when a jury has actually indicated a mistaken belief
in indefinite deliberations." Id.
[¶12] Gibbons resolves
defendant's contention: here, as in Gibbons, the
trial court, " could not have erred" by failing to
tell the jury that a mistrial was possible. See
id. at ¶ 36.
[¶13] To the extent defendant argues that
the court's modified- Allen instruction was
coercive, we disagree. The court's instruction tracked
the pattern modified-Allen instruction, which the supreme
court has determined is not coercive. See Fain
v. People, 2014 CO 69, ¶ 2, 329 P.3d 270; see
also COLJI-Crim. E:18 (2014).
[¶14] Although, as defendant argues, the
court should have inquired whether there was " a
likelihood of progress towards a unanimous verdict upon
further deliberations" before it gave the modified-Allen
instruction, see People v. Schwartz, 678
P.2d 1000, 1012 (Colo. 1984), a mistrial advisement was not
necessary to remedy the court's omission. See
Fain, ¶ ¶ 21, 23.
References to the " Victim"
[¶15] During trial, the prosecutor and a
prosecution witness referred to K.M. as " victim"
and " the victim" several times. Defendant contends
that the references require reversal because they constituted
prosecutorial misconduct and subverted the presumption of
innocence. We conclude that reversal is not warranted.
[¶16] Defendant moved pretrial to preclude
the parties from referring to K.M. as the "
victim." The court ruled as follows at the motions
hearing, which occurred more than eight months before trial:
[T]he motion is not granted, per se, but I am going to ask
the parties to refer to the parties by their name or as the
complaining party or something to that nature, but not the
victim. If the prosecutor or either of you feel a need or you
think a witness feels the need to refer to the complaining
party as a victim, then approach the bench and we will talk
about it during the course of the trial if need be.
[¶17] The defense attorney and prosecutor
who appeared at trial were different from those who had
appeared at the motions hearing. During trial, the prosecutor
referred to K.M. as " victim" or " the
victim" on numerous occasions, and a police officer
referred to K.M. as " the victim" several times
during his testimony. Defendant did not object
contemporaneously to any of the references.
Preservation and Standard of Review
[¶18] Although defendant obtained a pretrial
ruling that precluded the parties from referring to K.M. as
the " victim," she never sought to enforce that
ruling at trial with a contemporaneous objection. The parties
agree that defendant preserved her appellate argument by
seeking and obtaining the pretrial ruling.
[¶19] We disagree with the parties. We
conclude that when a party violates the court's pretrial
order at trial, the opposing party must contemporaneously
object to preserve the issue for appeal. In reaching this
conclusion, we decline to follow the division's decision
in Salazar v. Am. Sterilizer Co., 5 P.3d 357, 369
(Colo.App. 2000). See People v. Smoots,
2013 COA 152, ¶ 20 (one division of the court of appeals
is not obligated to follow the precedent established by
another division) ( cert. granted in part on other
grounds June 30, 2014).
[¶20] A pretrial motion may preserve an
evidentiary objection for appellate review if the moving
party fairly presents the issue to the court and the court
issues a definitive ruling. See CRE 103(a) ("
Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a
party need not renew an objection or offer of proof to
preserve a claim of error for appeal." ); Uptain v.
Huntington Lab, Inc., 723 P.2d 1322, 1330-31 (Colo.
1986); accord United States v.
Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993).
[¶21] The principle that a definitive
pretrial ruling preserves an evidentiary issue for appeal is
intuitive when the parties follow the court's pretrial
order. Mejia-Alarcon, 995 F.2d at 986 (" When
counsel diligently advances the contentions supporting a
motion in limine and fully apprises the trial judge of the
issue in an evidentiary hearing, application of the rule
requiring parties to reraise objections at trial makes little
sense." ) (brackets, ellipses, and internal quotation
marks omitted). In this scenario, requiring a party to renew
an objection after the court has definitively ruled would be
an unnecessary formality. Id.
[¶22] But when a party violates the
court's pretrial order, common sense militates in favor
of requiring a contemporaneous objection. See
United States v. Fonseca, 744 F.3d 674, 683 (10th
Cir. 2014). In this situation, an objection does not merely
revive an argument that the court has already rejected.
See id. Instead, an objection serves to alert the
trial court to both the violation of the pretrial order and
to the objecting party's argument against the other
party's action. See id.; Martinez v.
People, 244 P.3d 135, 139 (Colo. 2010). Indeed, not
requiring a contemporaneous objection would create an
undesirable incentive: the party who received a favorable
pretrial ruling could sit silently while the ruling was
violated at trial and then, if the party received an adverse
verdict, move for a new trial based on the error.
See U. S. Aviation Underwriters, Inc. v. Olympia
Wings, Inc., 896 F.2d 949, 956 (5th Cir. 1990).
[¶23] We perceive no reason why the same
preservation rules should not also apply to issues of
prosecutorial comment or argument that have been raised and
ruled on before trial. Colorado appellate opinions
consistently have required a contemporaneous objection to
preserve prosecutorial misconduct claims. See, e.g.,
Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.
2005). And requiring a party to object to an opponent's
argument that violates a pretrial order serves the same
purposes as requiring an objection to preserve an argument
against admitting evidence.
[¶24] Consequently, we conclude that when an
opponent acts contrary to a pretrial order, a party must
contemporaneously object to preserve an appellate argument
that the court should have prohibited the action.
Cf. 21 Kenneth W. Graham, Jr., Federal Practice
& Procedure: Federal Rules of Evidence § 5037.16,
at 805 (2d ed. 2005) (" [A]n objection must be made when
another party violates the motion in limine." ).
[¶25] The division's opinion in
Salazar, 5 P.3d at 369, does not persuade us
otherwise. In Salazar, the defendant challenged the
plaintiff's reference during closing argument to the
defendant's financial resources. Id. The
defendant did not object to the statement at trial, but the
court had granted its motion in limine to preclude such
references. Id. Citing Bennett v. Greeley Gas
Co., 969 P.2d 754 (Colo.App. 1998), the Salazar
division concluded that the defendant had preserved the
issue. 5 P.3d at 369. But in Bennett, unlike
Salazar and this case, the trial court's
pretrial order admitted -- not excluded -- evidence.
See Bennett, 969 P.2d at 758.
Salazar neither acknowledges this distinction nor
articulates a reason to extend Bennett 's
principle to cases in which a party violates the court's
[¶26] The present case illustrates why the
rule we have articulated is necessary. First, the court
issued its oral ruling more than eight months before trial.
In our view, it is unrealistic to require the trial court
alone to remember and enforce rulings that it may have made
several months earlier. Second, neither the prosecutor nor
the defense attorney who appeared at trial was the same
attorney who litigated the pretrial motion. While we do not
suggest that attorneys in this situation need not become
familiar with the court's pretrial rulings, this
circumstance makes it more likely that a party may violate a
pretrial order inadvertently. A contemporaneous objection
would highlight the issue for the court and the parties,
thereby mitigating potential problems created by the passage
of time and personnel changes.
[¶27] Applying this rule, we conclude that
the court's pretrial order prohibiting the parties from
referring to K.M. as " the victim" did not preserve
defendant's appellate argument. Because defendant did not
object at trial when the prosecutor or the officer used that
term, she failed to preserve her argument that doing so was
improper. See Fonseca, 744 F.3d at 684.
[¶28] We review unpreserved claims of trial
error for plain error. People v. Miller, 113 P.3d
743, 748-50 (Colo. 2005). Under this standard, we will
reverse if an error was " obvious and substantial."
Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d
116. An error is obvious if it is so clear-cut that a trial
judge should have been able to avoid it without benefit of
objection. People v. Pollard, 2013 COA 31, ¶
39, 307 P.3d 1124. An error is " substantial" if it
so undermined the fundamental fairness of the trial as to
cast serious doubt on the reliability of the defendant's
conviction. Hagos, ¶ 14; see also
People v. Ujaama, 2012 COA 36, ¶ 43, 302 P.3d
[¶29] For two reasons, we conclude that the
court did not plainly err by allowing the prosecution's
or witness's references.
[¶30] First, any error in doing so was not
obvious. Generally, an error is obvious when the action
challenged on appeal contravenes (1) a clear statutory
command; (2) a well-settled legal principle; or (3) Colorado
case law. People v. Wilson, 2014 COA 114, ¶ 76.
No published Colorado case discusses the propriety of
referring to a complaining witness as the " victim"
at trial. Nor does any statute or well-settled legal
principle do so. Indeed, courts from other jurisdictions
express varied views on this topic. Compare
Jackson v. State, 600 A.2d 21, 24 (Del. 1991)
(" [T]he word 'victim' should not be used in a
case where the commission of a crime is in dispute." ),
and State v. Devey, 2006 UT App 219, 138
P.3d 90, 95 (Utah Ct.App. 2006) (same), with
United States v. Gibson, 690 F.2d 697, 703 (9th Cir.
1982) (prosecutor's references to investors as "
victims" was a fair comment on the evidence), State
v. Rodriguez, 107 Conn.App. 685, 946 A.2d 294, 307-08
(Conn.App. Ct. 2008) (prosecutor properly used the term
during closing argument, and the term did not express the
prosecutor's personal opinion), and State v.
Chism, No. 54894-6-I, 2005 WL 3529123, at *4 (Wash.
Ct.App. Dec. 27, 2005) (unpublished opinion) (" The
trial court did not abuse its discretion when it denied [the
defendant's] motion to prohibit the State and witnesses
from referring to [a witness] as the victim." ).
[¶31] In light of the lack of Colorado
authority and the split of authority elsewhere on this issue,
we cannot conclude that any error in allowing the complaining
witness to be referenced as the victim was "
[¶32] Further, the references did not cause
defendant sufficient prejudice to constitute plain error.
Defendant argues that the references prejudiced her because
the term " victim" assumed that she had committed a
crime against K.M., and that conveying this assumption to the
jury subverted the presumption of innocence. The court
instructed the jury about the presumption of innocence and
burden of proof, however, during jury selection and in its
written instructions, which it read before closing arguments.
We presume the jury followed those instructions. See
People v. McKeel, 246 P.3d 638, 641 (Colo. 2010).
And in light of those instructions, we conclude that the
references did not cast serious doubt on the judgment of
conviction's reliability. Cf. State v.
Robinson, 81 Conn.App. 26, 838 A.2d 243, 247 (Conn.App.
Ct. 2004) (asserting that an instruction on the presumption
of innocence negated " any prejudicial effect" that
the court created by using the term " victim" ).
[¶33] Although defendant has cited several
opinions from other jurisdictions that caution against
referring to the complaining witness as the "
victim," she has not cited an opinion that concluded
such references amounted to plain error. And we have found no
[¶34] In the end, the evidence and arguments
focused on eyewitness testimony. Four women, including K.M.,
testified that they witnessed at least part of the fight or
its aftermath. The parties' closing arguments in turn
centered on which of those witnesses were credible and which
[¶35] For these reasons, we are convinced
that the references to K.M. as the " victim" did
not constitute plain error.
[¶36] The judgment is affirmed.
HAWTHORNE and JUDGE DUNN concur.