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People v. Payne

Court of Appeals of Colorado, Seventh Division

November 14, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Cameron Scott Payne, Defendant-Appellant.

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          Mesa County District Court No. 15CR653. Honorable Valerie J. Robison, Judge.

         COUNSEL:

         Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

         J. Jones and Tow, JJ., concur.

          OPINION

         FOX, JUDGE.

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         [¶1] 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.

          I. Background

         [¶2] 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.[1]

          II. Lay Witness Testimony

         [¶3] 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 disagree.

          A. Additional Background

         [¶4] 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.

          B. Preservation and Standard of Review

         [¶5] 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.

         [¶6] 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. Id.

          C. Law and Analysis

         [¶7] 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 ...


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