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People ex rel. T.C.C.

Court of Appeals of Colorado, Seventh Division

November 2, 2017

The People of the State of Colorado, Petitioner-Appellee, In the Interest of T.C.C., Juvenile-Appellant.

         City and County of Denver Juvenile Court No. 16JD165 Honorable Donna J. Schmalberger, Judge

          Cynthia H. Coffman, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Rachel Milos, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant.


          FREYRE, JUDGE

         ¶ 1 T.C.C., a juvenile, appeals from a judgment adjudicating him delinquent of an act that would constitute robbery and third degree assault if committed by an adult. He asserts that the prosecutor improperly vouched for a witness's credibility during closing argument and that the resulting prejudice requires reversal for plain error. He also asserts that the court erred in ruling that the probation department could seek waiver of mandatory fees based on his good behavior. He argues that the relevant statutes permit the court to waive mandatory fees only on a finding of indigence, an issue not previously considered by this court. We disagree with his first contention and affirm his adjudications. However, we agree with his second contention and remand for the trial court to rule on his outstanding motion for waiver of costs and fees based on indigence.

         I. Background

         ¶ 2 This case arose from an altercation between T.C.C. and Ronald Ipson after T.C.C. removed a package from the front step of Ipson's neighbor's house. Ipson confronted T.C.C. and told him to return the package. T.C.C. then slapped, punched, and swore at Ipson. Shen Smith witnessed the scuffle while driving by and stopped to ask what was happening. Ipson told her to call the police, and T.C.C. ran off with the package. Smith called the police and drove around the block to an alley where she saw T.C.C. without the package. She asked T.C.C. if he was okay and what was going on. T.C.C. said a friend asked him to pick up the package. While they were talking, Ipson arrived and was videotaping the two with his phone. Ipson asked T.C.C. where the package was and T.C.C. turned around, said "Oh shit, " attempted to pull his hood over his face, and slapped Ipson. T.C.C. slapped the phone out of Ipson's hand, picked it up, and ran away. T.C.C. could be heard yelling "bitch ass nigger, I'll throw your shit, " as he ran off.

         ¶ 3 Police arrived shortly thereafter and located T.C.C. nearby. An officer saw T.C.C. throw two objects over a fence into a yard before he was arrested. Police later recovered Ipson's cell phone from where T.C.C. had thrown it. Police also found Ipson's cell phone case in T.C.C.'s backpack. The owners of the package said they did not know T.C.C. and had never asked him to pick it up.

         II. Prosecutorial Misconduct in Closing

         ¶ 4 T.C.C. contends that the prosecutor improperly vouched for Ipson's credibility and truthfulness when he argued, "Certainly Mr. Ipson has no reason to make up that he got struck numerous times from [T.C.C.]." We discern no error and, therefore, reject T.C.C.'s contention.

         A. Standard of Review and Applicable Law

         ¶ 5 We review claims of prosecutorial misconduct for an abuse of discretion. Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). The evaluation of a prosecutorial misconduct claim involves two steps. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we determine whether the conduct was improper based on the totality of the circumstances. Id.; see also People v. Strock, 252 P.3d 1148, 1153 (Colo.App. 2010) ("Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury."). Second, we consider whether any improper action warrants reversal under the applicable standard of review. Wend, 235 P.3d at 1096.

         ¶ 6 The parties agree that we should review T.C.C.'s unpreserved claim for plain error. Plain error is error that is both obvious and severely prejudicial. Hagos v. People, 2012 CO 63, ¶ 14. "Prosecutorial misconduct in closing argument rarely constitutes plain error." People v. Tillery, 231 P.3d 36, 44 (Colo.App. 2009), aff'd sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011). Indeed, "[a]n appellate court will not grant a new trial on the basis of prosecutorial misconduct unless the prejudice created thereby was so great as to result in a miscarriage of justice." People v. Harris, 914 P.2d 425, 432 (Colo.App. 1995).

         ¶ 7 "Closing arguments are rarely scripted with precision." Tillery, 231 P.3d at 44. We therefore give prosecutors the benefit of the doubt when remarks are "ambiguous" or "inartful." People v. McBride, 228 P.3d 216, 221 (Colo.App. 2009) (citations omitted). We also consider a defendant's "[l]ack of an objection [a]s a factor . . . in examining the impact of a prosecutor's closing argument. . . . The lack of an objection may demonstrate defense counsel's belief that the live argument, despite its appearance in a cold record, was not overly damaging." Tillery, 231 P.3d at 44 (quoting People v. Rodriguez, 794 P.2d 965, 972 (Colo. 1990)). While a prosecutor may comment on the evidence admitted at trial and the reasonable inferences ...

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