plain error in Colorado

2026“Plain error addresses error that is both ‘obvious and substantial.’” Miller, 113 P.3d at 750 (quoting People v. Stewart, 55 P.3d 107, 119 (Colo. 2002)).

2026Plain error is an obvious and substantial error, and we reverse such error when it “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” Hagos v. People, 2012 CO 63 , ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

2026“Plain error is obvious and substantial[,] . . . [and review for plain error] permit[s] an appellate court to correct ‘particularly egregious errors.’” Hagos v. People, 2012 CO 63 , ¶ 14 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)). ¶ 75 To rise to the level of plain error, the error “must be so clear- cut, so obvious, that a trial judge should be able to avoid it without benefit of objection.” People v. Pollard, 2013 COA 31M , ¶ 39.

2026“Plain error is obvious and substantial[,] . . . [and review for plain error] permit[s] an appellate court to correct ‘particularly egregious errors.’” Hagos v. People, 2012 CO 63 , ¶ 14 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)). ¶ 75 To rise to the level of plain error, the error “must be so clear- cut, so obvious, that a trial judge should be able to avoid it without benefit of objection.” People v. Pollard, 2013 COA 31M , ¶ 39.

2026See 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))).

2026See Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (comments that are “few in number” or “momentary in length” do not warrant reversal under the plain error standard (citation omitted)).

2026Plain error is an obvious and substantial error, and we reverse such error when it “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” Hagos v. People, 2012 CO 63 , ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

2026See People v. Versteeg, 165 P.3d 760, 764 (Colo. App. 2006), overruled on other grounds by, People v. Crabtree, 2024 CO 40M ; see also People v. Dyer, 2019 COA 161, ¶ 39 (an appellate court may affirm a district court order on any grounds supported in the record). ¶ 12 Plain error is an error that “is obvious and substantial.” Hagos v. People, 2012 CO 63, ¶ 14 .

2026See Hagos v. People, 2012 CO 63, ¶ 14 . “[R]eversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction.’” Garcia, 28 P.3d at 344 (citation omitted).

2025An error is substantial when it “so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Hoggard v. People, 2020 CO 54, ¶ 13 (quoting People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005)). “[W]ith respect to jury instructions, reversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction.’” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (c

2024Forgette, ¶ 30. ¶ 17 Plain error is error that is both “obvious and substantial” and that “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)). ¶ 18 “[W]ith respect to jury instructions, reversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contrib

2024Forgette, ¶ 30. ¶ 17 Plain error is error that is both “obvious and substantial” and that “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)). ¶ 18 “[W]ith respect to jury instructions, reversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contrib

2024Forgette, ¶ 30. ¶ 17 Plain error is error that is both “obvious and substantial” and that “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)). ¶ 18 “[W]ith respect to jury instructions, reversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contrib

2024Forgette, ¶ 30. ¶ 17 Plain error is error that is both “obvious and substantial” and that “so undermined the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)). ¶ 18 “[W]ith respect to jury instructions, reversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contrib

2026“Plain error addresses error that is both ‘obvious and substantial.’” Miller, 113 P.3d at 750 (quoting People v. Stewart, 55 P.3d 107, 119 (Colo. 2002)).

2025Plain error is “obvious and substantial,” People v. Stewart, 55 P.3d 107, 120 (Colo. 2002), and will not lead to reversal unless it is seriously prejudicial and “so undermine[s] the fundamental fairness of the [proceeding] itself so as to cast serious doubt on the reliability of the judgment of conviction.” Hagos v. People, 2012 CO 63 , ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

2026See 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))).

2024To 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.

2021See People v. Thompson, 2018 COA 83, ¶ 34 (“Because plain error requires that the error be obvious and any legal principles be ‘well settled,’ we only consider the status of the law at the time of trial.”) (citation omitted), aff’d on other grounds, 2020 CO 72 ; People v. O’Connell, 134 P.3d 460, 465 (Colo. App. 2005) (“[W]e will use the status of law at the time of trial in considering whether the trial court committed plain error.”).

2012Plain error is "so clear-cut, so obvious, a competent [trial] judge should be able to avoid it without benefit of objection." People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005) (quoting United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997)).

2025See Martinez v. People, 2015 CO 16, ¶ 14 , 344 P.3d 862, 868 (“Parties must make objections that are specific enough to draw the trial court’s attention to the asserted error.”). ¶ 47 When reviewing a claim of prosecutorial misconduct, we first “must determine whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances and, second, whether such actions warrant reversal according to the proper standard of review.” Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). ¶ 48 Because Morris did not preserve his prosecutorial misconduct argument, “we apply a pla

2024Because “[w]e presume that the jury followed the court’s instructions, absent evidence to the contrary,” Garcia, 2012 COA 79, ¶ 20 , and because the prosecutor’s analogy was not a “flagrant or glaring or tremendously improper” misstatement of law, Rhea, ¶ 43 (quoting Weinreich, 98 P.3d at 924 ), we conclude that any error doesn’t rise to the level of plain error.

2010Plain error "so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." People v. Kruse, 839 P.2d 1, 3 (Colo.1992) (quoting Wilson v. People, 743 P.2d 415, 420 (Colo.1987)); accord Flowers, 128 P.3d at 290 .

2002"Plain error occurs when, after review of the entire record, a court can conclude with 'fair assurance that the error so undermined the fandamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.'" Moore v. People, 925 P.2d 264, 269 (Colo.1996)(quoting People v. Kruse, 839 P.2d 1, 3 (Colo.1992)). [When there is evidence of many transactions, any one of which would constitute the offense charged, the prosecution may be compelled to select the transaction on which it relies for a conviction or, in the alternative, the jurors should be instr

2012Plain error is "an error that is obvious, substantial, and grave, seriously affecting the substantial rights of the accused." Id. at 268-69 .

2007P. 52(b); People v. Kruse, 889 P.2d 1, 3 (Colo.1992). ‘ Plain error is error that is "obvious," "substantial," and "grave." Moore v. People, 925 P.2d 264, 268-69 (Colo.1996).

2026See Robinson, ¶ 19; Domingo- Gomez, 125 P.3d at 1053 (“Comments that were ‘few in number, momentary in length, and were a very small part of a rather prosaic summation’ do not warrant reversal under the plain error standard.” (quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982))).

2025See Domingo-Gomez, 125 P.3d at 1053 (“Comments that were ‘few in number, momentary in length, and were a very small part of a rather prosaic summation’ do not warrant reversal under the plain error standard.” (quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982))).

2024Plain error is an “ error that is both obvious and substantial and that so undermined t he 4 fundamental fairness of the trial as to cast serious doubt on t he reliability of the judgment of conviction. ” Scott v. People , 2017 CO 16, ¶ 15.

2020Scott v. People, 2017 CO 16, ¶ 16 , 390 P.3d 832, 835 . ¶29 We note that the People have asked that, if we review Wester-Gravelle’s contention for plain error, we adopt the Supreme Court’s articulation of the plain error standard in Olano, 507 U.S. at 732 .

2020These errors “are not amenable to either a harmless error or a plain error analysis.” Id. (quoting Griego v. People, 19 P.3d 1, 7 (Colo. 2001)).

2019Structural errors “are not amenable to either a harmless error or a plain error analysis because such errors affect ‘the framework within which the trial proceeds,’ and are not errors in the trial process itself.” Griego v. People, 19 P.3d 1, 7 (Colo. 2001) (quoting Bogdanov v. People, 941 P.2d 247, 252-53 (Colo. 1997)).

2020In doing so, we decline to address the People’s invitation to adopt the plain error standard articulated in United States v. Olano, 507 U.S. 725, 732 (1993), because the People did not raise that argument below and we did not grant certiorari to address it.

2020Scott v. People, 2017 CO 16, ¶ 16 , 390 P.3d 832, 835 . ¶29 We note that the People have asked that, if we review Wester-Gravelle’s contention for plain error, we adopt the Supreme Court’s articulation of the plain error standard in Olano, 507 U.S. at 732 .

2026People v. Ujaama, 2012 COA 36, ¶ 42 (for purposes of the plain error rule, an error may be obvious if the issue has been decided by a division of the court of appeals).

2021People v. Ujaama, 2012 COA 36, ¶ 38 . ¶ 87 Plain error is error that is both “obvious” and “substantial.” Hagos v. People, 2012 CO 63, ¶ 14 .

2019An appellate court reviews unpreserved claims of alleged misconduct under the plain error standard, which requires reversal only “when there is a substantial likelihood that [the misconduct] affected the verdict or that it deprived the defendant of a fair and impartial trial.” Id. at 1153 .

2015Id. at 1152 , Plain error is error that is obvious and substantial.

2025Plain error is an error that is both obvious and substantial, which means the error must “so undermine the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Hoggard v. People, 2020 CO 54, ¶ 13 (quoting People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005)).

2025An error is substantial when it “so undermine[s] the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Hoggard v. People, 2020 CO 54, ¶ 13 (quoting People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005)). “[W]ith respect to jury instructions, reversal under a plain error standard requires a defendant to ‘demonstrate not only that the instruction affected a substantial right, but also that the record reveals a reasonable possibility that the error contributed to his conviction.’” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001) (c

2022Although to be sure, a prosecutor “need not abandon effective debate techniques or eschew metaphoric nuance in accepting the restrictions inherent in the prosecutorial function,” Harris, 888 P.2d at 265–66, a prosecutor’s license to embellish oratorically does not permit her to make an argument suggesting that a defendant’s exercise of the right to trial by jury somehow evinced the defendant’s guilt. ¶66 The more difficult question for me is whether the prosecution’s comments rose to the level of plain error.

1999Improper closing argument rises to the level of plain error if its probable effect is a verdict based on “bias and prejudice rather than on the relevant facts and applicable law.” Harris v. People, supra, 888 P.2d at 269 .

2025See Martinez v. People, 2015 CO 16, ¶ 14 , 344 P.3d 862, 868 (“Parties must make objections that are specific enough to draw the trial court’s attention to the asserted error.”). ¶ 47 When reviewing a claim of prosecutorial misconduct, we first “must determine whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances and, second, whether such actions warrant reversal according to the proper standard of review.” Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). ¶ 48 Because Morris did not preserve his prosecutorial misconduct argument, “we apply a pla

2022A defendant asserting plain error in this context must show that the prosecutor’s misconduct was “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez, 125 P.3d at 1053 , and we have observed that prosecutorial misconduct in closing argument rarely is so egregious as to satisfy this standard, Constant, 645 P.2d at 847 . 8 ¶67 Applying these principles here, I cannot say that the prosecution’s remarks rose to the level of plain error.

2025See People v. Petschow, 119 P.3d 495, 505 (Colo. App. 2004) (“Plain error assumes that the court should have intervened sua sponte because the error was so obvious.”).

2012See Malloy, 178 P.3d at 1288 (plain error is error that is "obvious," "substantial," and "grave"). $42 "Plain error assumes that the [trial] court should have intervened sua sponte because the error was so obvious." People v. Petschow, 119 P.3d 495, 505 (Colo.App.2004).

2026People v. Vigil, 127 P.3d 916, 929-30 (Colo. 2006).

2006P. 52(b); People v. Vigil, 127 P.3d 916 (Colo.2006)(applying the plain error standard of review because defendant did not argue at trial that the alleged hearsay evidence violated his confrontation rights).

2025“First, it must determine whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances and, second, whether such actions warrant reversal according to the proper standard of review.” Id. 16 ¶ 48 Because defense counsel did not object when the prosecutor referred to the inadmissible testimony, “we apply a plain error standard of review.” Id. at 1097 .

2025“First, it must determine whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances and, second, whether such actions warrant reversal according to the proper standard of review.” Id. 16 ¶ 48 Because defense counsel did not object when the prosecutor referred to the inadmissible testimony, “we apply a plain error standard of review.” Id. at 1097 .

2009P. 35<span>(c)</span></span></a></span>, <span><a href="/vid/886278478" data-vids="886278478" data-reftype="reporter" data-prop-ids="sentence_30663"><i><span>People v. Collier</span>,</i> <span> 151 P.3d 668 , 672</span> <span>(<span>Colo.App.</span><span>2006</span>)</span></a></span>, and the postconviction <span>court</span> would rule on the same record <span>we</span> have before <span>us</span> now.</span> </blockquote> </div> <p data-paragraph-id="30886"> <span data-paragraph-id="30886" data-sentence-id="30894">Nor do <span>we</span> have the same difficulty applying the plain error tes

2009P. 35<span>(c)</span></span></a></span>, <span><a href="/vid/886278478" data-vids="886278478" data-reftype="reporter" data-prop-ids="sentence_30663"><i><span>People v. Collier</span>,</i> <span> 151 P.3d 668 , 672</span> <span>(<span>Colo.App.</span><span>2006</span>)</span></a></span>, and the postconviction <span>court</span> would rule on the same record <span>we</span> have before <span>us</span> now.</span> </blockquote> </div> <p data-paragraph-id="30886"> <span data-paragraph-id="30886" data-sentence-id="30894">Nor do <span>we</span> have the same difficulty applying the plain error tes

2015See Banark, 155 P.3d at 611 . *751 (82 Plain error is error that is both obvious and substantial, Id.

2015See Banark, 155 P.3d at 611 . *751 (82 Plain error is error that is both obvious and substantial, Id.