The People of the State of Colorado, Petitioner-Appellee, In the Interest of T.C.C., Juvenile-Appellant.
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
Douglas K. Wilson, Colorado State Public Defender, Rachel
Milos, Deputy State Public Defender, Denver, Colorado, for
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.
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.
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.
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.
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