People v. Avila, 944 P.2d 673 (Colo. Ct. App. 1997). · Go Syfert
People v. Avila, 944 P.2d 673 (Colo. Ct. App. 1997). Cases Citing This Book View Copy Cite
“a reviewing court should examine alleged improper argument in the context of the prosecution's closing argument as a whole.”
70 citation events (70 in the last 25 years) across 2 distinct courts.
Strongest positive: v. Bobian (coloctapp, 2019-12-19)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 43 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) v. Bobian
Colo. Ct. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
a reviewing court should examine alleged improper argument in the context of the prosecution's closing argument as a whole.
discussed Cited as authority (rule) Peo v. Juranek
Colo. Ct. App. · 2026 · confidence medium
For prosecutorial misconduct to constitute plain error, it must be “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)), and must “so undermine[] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury’s verdict.” Id. 15 A. Reference to Post-Arrest Silence and Decision Not to Testify ¶ 34 Juranek first asserts that the following statements made by the prosecutor during closing argument improperly referred to his post-arrest silence and his decisio…
discussed Cited as authority (rule) Peo v. Duran
Colo. Ct. App. · 2026 · confidence medium
For prosecutorial misconduct to constitute plain error, the conduct must be “flagrantly, glaringly, or tremendously improper” and “so undermine[] the fundamental fairness of the trial 11 itself as to cast serious doubt on the reliability of the jury’s verdict.” Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). ¶ 23 In analyzing a prosecutorial misconduct claim, the reviewing court must determine (1) whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances, and (2) whether such actions warran…
cited Cited as authority (rule) Peo v. McKinley
Colo. Ct. App. · 2025 · confidence medium
Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
discussed Cited as authority (rule) Peo v. Scott
Colo. Ct. App. · 2025 · confidence medium
“Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.” Domingo-Gomez v. 9 People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). ¶ 21 When a defendant did not contemporaneously object to the statements being challenged on appeal, we will reverse only if the error was plain.
cited Cited as authority (rule) Peo v. Maupin
Colo. Ct. App. · 2025 · confidence medium
Domingo-Gomez 4 v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). 2.
discussed Cited as authority (rule) Peo v. Finney
Colo. Ct. App. · 2025 · confidence medium
“Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.” Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
discussed Cited as authority (rule) Peo v. Underwood
Colo. Ct. App. · 2025 · confidence medium
To meet this standard, the conduct must be “flagrantly, glaringly, or tremendously improper” and “so undermine[] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury’s verdict.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). 22 “Prosecutorial misconduct in closing argument rarely constitutes plain error.” Weinreich, 98 P.3d at 924 .
discussed Cited as authority (rule) Peo v. Frazier
Colo. Ct. App. · 2025 · confidence medium
And “[o]nly prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). ¶ 52 “We evaluate claims of improper argument ‘in the context of the argument as a whole and in light of the evidence before the jury.’” People v. Van Meter, 2018 COA 13, ¶ 24 (quoting People v. Geisendorfer, 991 P.2d 308, 312 (Colo. App. 1999)).
cited Cited as authority (rule) Peo v. Kolacny
Colo. Ct. App. · 2025 · confidence medium
Domingo–Gomez v. People, 125 P.3d 26 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
discussed Cited as authority (rule) People in Interest of A.T.S.
Colo. Ct. App. · 2025 · confidence medium
To meet this standard, the conduct must be “flagrantly, glaringly, or tremendously improper” and “so undermine[] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury’s verdict.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (first quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997); and then citing People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
discussed Cited as authority (rule) Peo v. Carpenter
Colo. Ct. App. · 2025 · confidence medium
“Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.” Domingo- Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People 19 v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
cited Cited as authority (rule) Peo v. Young
Colo. Ct. App. · 2024 · confidence medium
Domingo–Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
discussed Cited as authority (rule) Peo v. Maniz
Colo. Ct. App. · 2024 · confidence medium
To warrant reversal under the plain error 11 standard, such misconduct must be “flagrantly, glaringly, or tremendously improper.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). 2.
cited Cited as authority (rule) Peo v. Foster
Colo. Ct. App. · 2024 · confidence medium
Domingo- 54 Gomez v. People , 125 P.3d 1043 , 1053 (Colo. 200 5) (quoting People v. Avila , 944 P.2d 673, 676 (Colo. App. 1997)) . 2.
discussed Cited as authority (rule) Peo v. Lopez
Colo. Ct. App. · 2024 · confidence medium
Do mingo-Gomez v. People , 125 P.3d 1043, 1053 (Colo. 17 2005) (quoting People v. Avila , 944 P.2d 673, 676 (Colo. Ap p. 1997)). ¶ 35 The fact that defense counsel did not object “may demonstrate defense counsel’s belief that the live argument, despite its appearance in a cold record, was not overly damaging. ” People v. Van Meter , 2018 COA 13, ¶ 33 (quoting People v. Rodriguez , 794 P.2d 965, 972 (Colo. 1990)).
discussed Cited as authority (rule) People v. James M. Duncan
Colo. Ct. App. · 2023 · confidence medium
Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). ¶ 34 We review preserved claims of prosecutorial misconduct for harmless error, which requires reversal if there is a reasonable probability that any error by the trial court contributed to the defendant’s conviction.
discussed Cited as authority (rule) People v. Brian Paul Vergari
Colo. Ct. App. · 2022 · confidence medium
Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). ¶ 32 In closing arguments, “[p]rosecutors may comment on the evidence admitted at trial and the reasonable inferences that can be drawn therefrom.” People v. Samson, 2012 COA 167, ¶ 31 .
discussed Cited as authority (rule) 20SC343- People v. Vialpando
Colo. · 2022 · confidence medium
In the context of plain error review of alleged prosecutorial misconduct, we will reverse only when the misconduct was “flagrantly, glaringly, or tremendously improper.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
cited Cited as authority (rule) People v. Larry D. Buckner
Colo. Ct. App. · 2022 · confidence medium
“Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
cited Cited as authority (rule) Peo v. Gonzales
Colo. Ct. App. · 2021 · confidence medium
Reversal is required only for “prosecut orial misconduct which is ‘flagrantly, glaringly, or tremendously’ improper.” Id. (quoting People v. Avila , 944 P.2d 673, 676 (Col o.
discussed Cited as authority (rule) Peo v. Erickson (2×) also: Cited "see"
Colo. Ct. App. · 2021 · confidence medium
“O nly prosecutorial misconduct which is ‘ flagrantly, glar ingly, or tremendously improper’ warrants reversa l.” Id. (quoting People v. Avila , 944 P.2d 673, 676 (C olo.
cited Cited as authority (rule) v. Sauser
Colo. Ct. App. · 2021 · confidence medium
People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997) (quoting Vialpando, 804 49 P.2d at 224).
examined Cited as authority (rule) v. Knapp (3×) also: Cited "see"
Colo. Ct. App. · 2020 · confidence medium
In the context of plain error review of prosecutorial misconduct, we will reverse only when the misconduct was “flagrantly, glaringly, or tremendously improper.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
discussed Cited as authority (rule) v. Meils
Colo. Ct. App. · 2019 · confidence medium
Under this standard, reversal is warranted only when prosecutorial misconduct is “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)), and “so undermines the 9 fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury’s verdict.” Id.
discussed Cited as authority (rule) v. Robinson
Colo. · 2019 · confidence medium
In the context of plain error review of prosecutorial misconduct, we will only reverse when the misconduct was “flagrantly, glaringly, or tremendously improper.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)); cf. People v. Constant, 645 P.2d 843, 847 (Colo. 1982) (noting that prosecutorial misconduct in closing argument rarely is so egregious as to constitute plain error).
discussed Cited as authority (rule) v. Tibbels
Colo. Ct. App. · 2019 · confidence medium
“Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.’” Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). ¶ 16 Because the right to a fair trial includes the right to an impartial jury, prosecutorial misconduct that misleads a jury may warrant reversal.
discussed Cited as authority (rule) People v. Koper
Colo. Ct. App. · 2018 · confidence medium
These issues were central to the prosecution’s case on the possession of a firearm charge. ¶ 47 Furthermore, the proffered jury question that the trial court declined to ask concerning the contrast between defendant’s testimony and that of the prosecution’s witnesses shows that at least one member of the jury readily connected the prosecutor’s questioning on cross-examination to a potential assertion that either defendant or the prosecution witnesses were “lying.” ¶ 48 In sum, we conclude that the error undermines our confidence in the reliability of the judgment of conviction. �…
discussed Cited as authority (rule) v. Jamison
Colo. Ct. App. · 2018 · confidence medium
Under this standard, reversal is warranted only when prosecutorial misconduct is “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)), and “so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the jury’s verdict,” id. ¶ 30 We review conduct to which a defendant raised a contemporaneous objection at trial for harmless error.
discussed Cited as authority (rule) People v. Nardine
Colo. Ct. App. · 2016 · confidence medium
Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo.App.1997)). ¶ 64 While “[t]he 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,” People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990) (quoting Brooks v. Kemp, 762 F.2d 1383 , 1397 n. 19 (11th Cm. 1985)), such deference must be tempered to allow an appellate court to correct particularly. egregious errors, Wilson v. People, 743 P.2d 415, 420 (Colo.1987).
discussed Cited as authority (rule) People v. Carter
Colo. Ct. App. · 2015 · confidence medium
To warrant reversal under the plain error standard, prosecutorial misconduct must be “ ‘flagrantly, glaringly, or tremendously improper.’ ” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
cited Cited as authority (rule) People v. Munoz-Casteneda
Colo. Ct. App. · 2012 · confidence medium
Only prosecutorial misconduct which is 'flagrantly, glaringly, or tremendously improper' warrants reversal." (quoting in part People v. Avila, 944 P.2d 673, 676 (Colo.App.1997))).
discussed Cited as authority (rule) People v. Douglas
Colo. Ct. App. · 2012 · confidence medium
In this context, we will reverse only if the prosecutor's conduct was "flagrantly, glaringly, or tremendously improper." Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d 673, 676 (Colo.App.1997)).
cited Cited as authority (rule) People v. Villa
Colo. Ct. App. · 2009 · confidence medium
Id. (quoting People v. Avila, 944 P.2d 673, 676 (Colo.App.1997)).
discussed Cited as authority (rule) People v. Sommers (2×) also: Cited "see"
Colo. Ct. App. · 2008 · confidence medium
"Only prosecutorial misconduct [in closing argument] which is flagrantly, glaringly, or tremendously improper warrants reversal." Domingo-Gomez, 125 P.3d at 1053 (quoting in part People v. Avila, 944 P.2d 673, 676 (Colo.App.1997)).
discussed Cited as authority (rule) People v. Rogers
Colo. Ct. App. · 2008 · confidence medium
People v. Avila, 944 P.2d 673, 676 (Colo.App.1997); see also People v. Hernandez, 329 P.2d 394 , 396 (Colo.App.1991) (a prosecutor's remark during opening statement must be "particularly egregious" to warrant a new trial).
cited Cited as authority (rule) Petitioner: Victor Hugo DOMINGO-GOMEZ v. Respondent: The PEOPLE of the State of Colorado.
Colo. · 2006 · confidence medium
People v. Avila , 944 P.2d 673, 676 ( Colo.App. 1997 ) .
discussed Cited as authority (rule) Domingo-Gomez v. People (2×)
Colo. · 2005 · confidence medium
People v. Avila, 944 P.2d 673, 676 (Colo.App.1997).
discussed Cited as authority (rule) People v. Krutsinger
Colo. Ct. App. · 2005 · confidence medium
People v. Salyer, 80 P.3d 831 (Colo.App.2003); People v. Petschow, 119 P.3d 495 , 2004 WL 2136945 (Colo. *324 App. No. 01CA1684, Sept. 23, 2004)(plain error is obvious, substantial, and grave.) Prosecutorial misconduct in closing arguments rises to the level of plain error only if it is “flagrantly, glaringly, or tremendously improper.” People v. Avila, 944 P.2d 673, 676 (Colo.App.1997)(quoting People v. Vialpando, 804 P.2d 219, 224 (Colo.App.1990)).
cited Cited as authority (rule) People v. Shepherd
Colo. Ct. App. · 2001 · confidence medium
People v. Avila, 944 P.2d 673, 676 (Colo.App.1997).
discussed Cited "see" Peo v. Johnson
Colo. Ct. App. · 2026 · signal: see · confidence high
See Domingo- Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (“Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal” under the plain error standard. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997))).
discussed Cited "see, e.g." Peo v. Itive K
Colo. Ct. App. · 2025 · signal: see also · confidence medium
People v. Walker, 2022 COA 15 , ¶ 28; see also Domingo-Gomez, 125 P.3d at 1053 (prosecutorial misconduct rarely constitutes plain error and only warrants reversal when it is “flagrantly, glaringly, or tremendously improper” (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997))). ¶ 44 When reviewing claims of prosecutorial misconduct, we conduct a two-step analysis.
discussed Cited "see, e.g." People v. Robinson
unknown court · 2017 · signal: see also · confidence medium
The prosecutor’s statements echoed a time when judges instructed juries that “they should presume no White woman in Alabama would consent to sex with a Black.” Id. at 25 n.128; see also Pumphrey v. State, 47 So. 156, 158 (Ala. 1908) (holding that in determining whether an assault was made with intent to rape, the jury may consider that the woman assaulted was white and that the accused was black, a now defunct rule applied as recently as 1953 in McQuirter v. State, 63 So. 2d 388, 390 (Ala. Ct. App. 1953)). ¶ 25 Against this sobering historical backdrop, we conclude that the prosecutor�…
Retrieving the full opinion text from the archive…
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Anthony E. AVILA, Defendant-Appellant
95CA1332.
Colorado Court of Appeals.
Aug 7, 1997.
944 P.2d 673
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Sandra K. Mills, Assistant Attorney General, Denver, for Plaintiff-Appellee., David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, for Defendant-Appellant.
Roy, Jones, Kapelke.
Cited by 744 opinions  |  Published

Opinion by

Judge ROY.

Defendant, Anthony E. Avila, appeals the judgment of conviction entered on a jury verdict finding him guilty of vehicular eluding resulting in the death of another person and vehicular homicide. We affirm.

On August 31, 1994, a high-speed chase of a stolen vehicle by a police car ended when the stolen vehicle veered out of control, struck a number of objects, became airborne, flipped over, and came to rest upside down. Defendant was found pinned beneath the passenger side of the vehicle. The other occupant of the vehicle, who died in the crash, was found behind the driver’s seat. A handgun and ammunition were also recovered.

Defendant was charged with multiple offenses, including those at issue here, and he pled not guilty.

At trial, defendant maintained that he was not the driver of the vehicle. Thus, the identification of the driver was the central issue in dispute. Because there was no eyewitness identification evidence available, the resolution of the issue turned on the testimony of accident reconstruction experts. The convictions at issue here resulted.

I.

Defendant first contends that the trial court erred in entering judgment against him because the evidence presented at trial did not support the jury’s finding that he was the driver of the vehicle. We disagree.

In reviewing the sufficiency of the evidence, we must give the prosecution the benefit of every reasonable inference which might fairly be drawn from the evidence and defer to the jury’s resolution of conflicting evidence. Kogan v. People, 756 P.2d 945 (Colo.1988).

Here, the prosecution presented expert testimony as to the way in which the accident occurred. The prosecution’s expert witness expressed the opinion that defendant had been the driver and that, as the vehicle rolled, he was ejected through the passenger side of the vehicle. The witness also testified that defendant’s companion had been the passenger, but that the force of the crash threw him to the rear of the driver’s seat as evidenced, in part, by the location of the companion’s right shoe, which was found wedged under the dash on the passenger side and scuff marks attributable to the passenger’s clothing on the headliner.

Defendant’s expert witness testified that the crash occurred in a somewhat different manner and expressed his opinion that defendant was not the driver. This witness based his opinion on the color of clothing transfers on the passenger door and upon defendant’s final position outside the vehicle.

Defendant argues that the testimony of the prosecution’s expert was insufficient to convict because of the limited basis for his opinion. In making this argument, defendant focuses on particular facts or pieces of physical evidence that the prosecution witness either emphasized or did not address.

The jury listened to the opinions of two experts who, upon examining the same physical evidence, offered conflicting opinions about who was driving the vehicle. It was within the jury’s province as fact-finder to resolve this conflicting evidence and any re[*675] lated credibility issues relating to the evidence.

Inasmuch as there is competent evidence in the record from which a reasonable juror could find defendant was the driver beyond a reasonable doubt, we will not disturb the verdict. See Hock v. New York Life Insurance Co., 876 P.2d 1242 (Colo.1994).

II.

Next, defendant contends that the trial court deprived him of due process of law in allowing the prosecution to offer the rebuttal testimony of an expert witness not endorsed or disclosed to defendant prior to trial. We disagree.

Pursuant to Crim. P. 16(II)(c), once the prosecution is apprised of the nature of the defendant’s defense and the witnesses he intends to call, the prosecuting attorney “shall notify defense counsel of any additional witnesses which he intends to call to rebut such defense within a reasonable time before trial after their identity becomes known.” Also, pursuant to § 16-5-203, C.R.S. (1996 Cum.Supp.), the prosecuting attorney is required to provide the identity of any additional witnesses, beyond the initial list filed with the court, as they become known.

Neither Crim. P. 16(II)(c) nor § 16-5-203 requires the prosecution to endorse rebuttal witnesses. People v. Hamrick, 624 P.2d 1333 (Colo.App.1979). Further, the testimony of an unendorsed expert rebuttal witness is admissible when offered solely to impeach the credibility of a defense witness, or in this instance to question the analysis of a defense expert, and not to rebut a defense. People v. Vollentine, 643 P.2d 800 (Colo.App.1982).

After the close of defendant’s case, the prosecution sought to introduce the testimony of a police officer with expertise in accident reconstruction in rebuttal. The witness answered narrow questions directed at specific aspects of the opinion testimony offered by defendant’s expert and the actual basis upon which the opinion was premised. The rebuttal expert was not asked to express his opinion on who was driving the vehicle or any other ultimate issue. His testimony was limited to pointing out weaknesses in the opinion testimony offered by defendant’s witness.

The rebuttal witness was first asked to review a diagram produced by defendant’s expert and used by him to illustrate his opinion that the vehicle had “tripped” over the curb. The witness was then asked if, in his opinion, the' curb could have acted as a tripping mechanism, to which the witness replied in the negative with brief comment.

The rebuttal witness was asked whether he had heard of “non-horizontal forces,” a term used by defendant’s expert. He was also asked to offer his opinion regarding a theory espoused by defendant’s expert that the vehicle had rebounded off a chain link fence because of the elasticity of the fence. Finally, the witness was asked about “right-leading rolls” and “left-leading rolls,” terms used by defendant’s expert, and whether, in his opinion, such rolls were applicable in this case based upon review of photographs of the scene.

Defendant’s cross-examination of the rebuttal witness revealed that the prosecution had first contacted the witness over the lunch hour immediately preceding his testimony. Defendant was given no prior notice that this witness would testify.

There is no evidence in the record to indicate the prosecution intended to call this witness prior to hearing the testimony of defendant’s expert. Because the necessity of calling the witness was not known to the prosecution until mid-trial, the prosecution was not required to disclose the identity of the witness any earlier than practicable.

Defendant relies, in part, on Eckhardt v. People, 126 Colo. 18, 247 P.2d 673 (1952), in which our supreme court concluded that it was error to permit unendorsed and undisclosed rebuttal witnesses to testify because the testimony of the witnesses went beyond rebuttal by including a complete eyewitness account of the events. Here, however, the testimony did not extend into areas found to be improper in Eckhardt.

Therefore, under the circumstances at issue, we conclude the trial court committed no[*676] error in allowing the testimony of the prosecution’s rebuttal expert witness without prior disclosure or endorsement.

III.

Defendant also contends that the trial court erred by admitting into evidence statements made by the prosecuting attorney during cross-examination of defendant’s expert and during closing argument that amounted to misconduct and violated his right of due process. We disagree.

Defendant did not object to the remarks in either instance. Therefore, we review the statements under a plain error standard, and thus will reverse only, if after review of the entire record, we can say with fair assurance that the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. See People v. Wilson, 838 P.2d 284 (Colo.1992).

Prosecutorial misconduct rises to the level of plain error only if it is “flagrantly, glaringly, or tremendously improper.” People v. Vialpando, 804 P.2d 219, 224 (Colo.App.1990).

Defendant first argues the following questions posed to defendant’s expert constituted misconduct:

Q: Certainly you were hired in this case to basically establish that [defendant] was the passenger in this car; isn’t that right?
A: No, that’s not correct.
Q: No?
A: No, that’s not correct.
Q: When you indicated you work at the request of the client, that wasn’t his request?
A: No, that’s not correct.

Defendant argues, relying on People v. Jones, 832 P.2d 1036 (Colo.App.1991), that this questioning of the witness was improper because it insinuated that the defense was undertaken in bad faith.

In Jones, however, the prosecutor engaged in misconduct when he made remarks directed at denigrating defense counsel and her preparation, and implying that defense counsel knew the true facts of the case and should concede the accuracy of the prosecution’s evidence. There, the court concluded the remarks were improper because they erroneously diverted the jury’s attention away from the factual issues in the case.

Here, the questions were an attempt, though perhaps an unartful one, to show bias in a manner similar to cross-examination of an expert witness regarding his fees. Hence, we conclude that allowing the questioning was not plain error.

Defendant also argues the following remarks made by the prosecuting attorney during closing argument constituted misconduct:

Only — the only thing I’m trying to emphasize here is there is virtually no credibility or credence to be given to [defendant’s expert’s] version of what he thinks happened.
Remember also the instruction I told you about that instructs you what credibility you’re to give to a witness. Remember he is bought and paid for by them. He’s their witness. Do you think that if his conclusions would have been the same as [the prosecution’s expert] he would have testified?

A reviewing court should examine alleged improper argument in the context of the prosecution’s closing argument as a whole. People v. Gutierrez, 622 P.2d 547 (Colo.1981). The fact that defendant did not object to the remarks may indicate his belief that the live argument was not overly damaging. People v. Rodriguez, 794 P.2d 965 (Colo.1990). Prosecutorial misconduct on closing argument is rarely so egregious as to constitute plain error. People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978).

Again, to insinuate that defendant had “bought” an expert to testify in his favor might well be an extreme and inappropriate comment; however, we conclude the trial court’s failure to strike the remarks did not so undermine the fundamental fairness of the trial as to require reversal.

[*677] IV.

Finally, we reject defendant’s contention that reckless vehicular homicide is a lesser included offense that merges into the offense of vehicular eluding.

Our supreme court recently confirmed that the issue of whether offenses merge is to be resolved using the “statutory or strict elements test” in which:

one offense is a lesser included of another offense when all of the essential elements of the lesser offense comprise a subset of the essential elements of the greater offense, such that it is impossible to, commit the greater offense without also committing the lesser.

People v. Garcia, 940 P.2d 357, 360 (Colo.1997).

Section 18-9-116.5, C.R.S. (1996 Cum. Supp.) sets out the elements of the crime of vehicular eluding as follows:

Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he is being pursued by said peace officer, and who operates his vehicle in a reckless manner, creating a substantial risk of bodily injury to another person, commits vehicular eluding.

Section 18-9-116.5 further provides that vehicular eluding, which is otherwise a class 4 felony, is a class 3 felony if it results in the death of another person.

Section 18-3-106(l)(a), C.R.S. (1996 Cum. Supp.) sets out the elements of the crime of reckless vehicular homicide, a class 4 felony, as follows:

If a person operates or drives a motor vehicle in a reckless manner, and such conduct is the proximate cause of the death of another, such person commits vehicular homicide.

The portion of the reckless vehicular eluding statute requiring proof that the eluding resulted in the death of another person is a sentence enhancing provision and, therefore, is not an essential element of the offense charged for purposes of merger. Armintout v. People, 864 P.2d 576 (Colo.1993).

In Armintrout, our supreme court explained that a statutory factor is a sentence enhancer when, absent proof of that factor, the defendant can still be convicted of the underlying offense. The Armintrout court discussed as an example, People v. Powell, 716 P.2d 1096 (Colo.1986), a ease in which the defendant was charged under the second degree kidnapping statute with a class 2 felony, which requires proof that the victim was sexually assaulted. The court in Armintrout explained that the sexual assault factor was a sentence enhancing provision because a conviction under the second degree kidnapping statute did not depend upon proof of a sexual assault. Therefore, the defendant could be separately convicted of both second degree kidnapping and sexual assault.

Likewise, here, since the offense of vehicular eluding does not require proof of a resulting death, the “death of another person” factor in the vehicular eluding statute is a sentence enhancer. Vehicular homicide, on the contrary, does require proof of the resulting death as an essential element of the crime. Therefore, the essential elements of the crimes of vehicular eluding and vehicular homicide are not identical, and convictions of both offenses do not merge.

Judgment affirmed.

JONES and KAPELKE, JJ., concur.