[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
County District Court No. 15CR653. Honorable Valerie J.
J. Weiser, Attorney General, Frank R. Lawson, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
Jones and Tow, JJ., concur.
Defendant, Cameron Scott Payne, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
resisting arrest, disorderly conduct, and second degree
assault while lawfully confined or in custody. Payne asserts
that the trial court erred by (1) allowing lay witness
testimony that usurped the jury's role; (2) failing to
provide a definitional jury instruction on " lawfully
confined or in custody" ; (3) allowing the prosecutor to
give a rebuttal closing statement after waiving initial
closing remarks; and (4) tolerating prosecutorial misconduct
when the prosecutor misstated the law in rebuttal closing.
Because none of Payne's contentions of error warrant
reversal, we affirm the judgment of conviction.
In May 2015, two Grand Junction police officers patrolling
the downtown area heard a man screaming and cursing in the
street. When the officers approached the man, later
identified as Payne, he aggressively turned toward the
officers and ignored their commands to stop. The officers
placed him in handcuffs, called for backup, and were
escorting Payne out of the street and toward their police car
when he kicked one of the officers in the groin. A jury found
Payne guilty of all charges except for second degree assault,
bodily injury on a peace officer.
Lay Witness Testimony
Payne contends that the trial court reversibly erred by
admitting lay witness testimony that he was " lawfully
confined or in custody," thereby usurping the jury's
role to decide whether he was confined or in custody. We
At trial, Officer Jason Evans testified as a lay witness for
the prosecution. In discussing Payne's arrest, the
following colloquy occurred:
[Prosecutor]: Was . . . Payne, compliant when you instructed
him to stop and then had to go and put handcuffs on him?
[Officer Evans]: No, ma'am.
[Prosecutor]: At this point did you consider that he was
lawfully confined or in custody?
[Officer Evans]: At that point he was not free to leave.
[Prosecutor]: Did you consider that he was lawfully confined
or in custody?
[Officer Evans]: Yes, ma'am.
Preservation and Standard of Review
We review a trial court's decision to admit testimony for
an abuse of discretion. People v. Robles-Sierra,
2018 COA 28, ¶ 23. An abuse of discretion occurs when a trial
court's ruling is manifestly arbitrary, unreasonable, or
unfair, or if it misapplies the law. People v.
Casias, 312 P.3d 208, 2012 COA 117, ¶ 29.
Because Payne did not preserve this issue for appeal, we
apply plain error review. Hagos v. People, 288 P.3d
116, 2012 CO 63, ¶ 14. Thus, we reverse only if any error was
obvious and substantial, meaning the error so undermined the
fundamental fairness of the trial itself as to cast serious
doubt on the reliability of the judgment of conviction.
A testifying witness may not usurp the jury's factfinding
role. Robles-Sierra, ¶ 24 . However, CRE
704 provides that opinion testimony that is "
otherwise admissible is not objectionable because it ...