The People of the State of Colorado, Plaintiff-Appellee, v. James Ashley Sampson, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND CASE REMANDED WITH DIRECTIONS

¶ 1 In Arapahoe County case number 18CR1726, the jury convicted James Ashley Sampson of two counts of second degree assault, one count of menacing, one count of felony menacing, three counts of third degree assault, and two counts of violation of a protection order, with two violent crime sentence enhancers. The trial court sentenced him to a total term of eighteen years in the custody of the Department of Corrections (DOC).

¶ 2 On appeal, Sampson contends that the court erred by incorrectly instructing the jury and allowing prosecutorial misconduct. He also appeals the sentence imposed by the court after he pleaded guilty in a companion case, Arapahoe County case number 18CR1574, contending that the court failed to credit him for presentence confinement. We agree with him that it was error for the court to omit presentence confinement credit (PSCC) from his sentence in 18CR1574, but we otherwise disagree with him on his other contentions and affirm the judgment of conviction in 18CR1726.

I. Allegations of Assault

¶ 3 Sampson and the victim began a romantic relationship during the summer of 2015. Before long, they started living together in the victim's home. The People presented evidence at trial to support the following.

¶ 4 In September 2015, the victim was at her adult daughter's house when Sampson, apparently upset, called the victim on the phone, started an argument, and threatened to move out. So the victim went home to find out what was going on.

¶ 5 After she got home, the argument escalated. The victim took Sampson's keys to keep him from leaving, but then he chased her outside, knocked her to the ground, and took her purse before he walked back home. When the victim returned to her apartment a short time later, Sampson screamed, “Where are my keys?” and grabbed the victim by the neck, pinning her against a wall. Sampson, yelling profanity and insults, threw the victim “five to six feet,” and she landed on the floor. Believing that her collarbone was broken and her life was in danger, the victim fled from the home. She made her way to her daughter's house and her daughter took her to a hospital. The victim's collarbone was “severed” in two places and required surgery.

¶ 6 Sampson moved out in the following days, and the victim reported the incident to the police. But the two did not stay apart for long.

¶ 7 In January 2016, Sampson was living with the victim, and her two young children, in the victim's home. One night, Sampson came home angry, acting “degrading” and “mean” to the victim, and he locked himself in an upstairs bedroom. He and the victim sent text messages back and forth, but the exchange ended when he sent her a message along the lines of “I'm going to come downstairs” and “show you.” Fearing that she was in danger, the victim went into her kitchen and armed herself with a knife. When Sampson came downstairs, he grabbed a baseball bat and threatened to smash the victim's china cabinet. But instead of smashing the cabinet, he entered the kitchen and struck the victim once with the bat. As Sampson cocked the bat back a second time, the victim swung her knife at him, cutting his hand, arm, and chest. After she cut Sampson, he pushed her against a counter and grabbed her, and they both fell to the floor while struggling over the weapons, causing the knife to stab the victim's leg. The incident ended after Sampson and the victim were cut, when some of the victim's friends arrived and took Sampson to a hospital. Police responded to the home to investigate shortly thereafter.

¶ 8 That was not the last time the police responded to a violent incident involving Sampson and the victim.

¶ 9 One afternoon in August 2016, the victim was staying with her daughter when Sampson arrived unexpectedly and started banging on the door. Fearing that he would break it, the victim answered the door. But once the door was open, Sampson grabbed the victim and forced his way inside the apartment, throwing her to the ground. Then Sampson “ran up [to the victim] and shoved ․ his knee into [her] chest,” breaking several of her ribs, smashed her head into the floor, and hit her in the head with his fists and a bottle. As the victim tried to crawl away, Sampson threatened her with various makeshift weapons. Then he forced her to get up, get in a car, and leave with him. They drove away, eventually stopping at a gas station — where Sampson got into a fight with the victim's daughter's boyfriend — before leaving to avoid the police.

¶ 10 The next day, the victim convinced Sampson to take her to get medical treatment. And in the following days, the two went to a second hospital where the police arrested Sampson.

II. The Charges and Trial

¶ 11 Based on these three incidents, Sampson initially faced a total of eighteen charges. For the September 2015 incident (the September Assault), Sampson was charged with one count of second degree assault (serious bodily injury), one count of second degree assault (deadly weapon), one count of felony menacing, two crime of violence sentence enhancers, and one count of third degree assault. For the January 2016 incident (the January Assault), he was charged with two counts of second degree assault (deadly weapon), two crime of violence sentence enhancers, and one count of third degree assault. And for the August 2016 incident (the August Assault), he was charged with one count of second degree assault (serious bodily injury), one count of felony menacing, one crime of violence sentence enhancer, two counts of third degree assault, and two counts of violation of a protection order.

¶ 12 At trial, Sampson generally denied the charges and raised an affirmative defense of self-defense and a voluntary intoxication defense. The jury returned guilty verdicts on two counts of second degree assault (serious bodily injury), one count of menacing, one count of felony menacing, two violent crime sentence enhancers, three counts of third degree assault, and two counts of violation of a protection order. These jury verdicts reflected only a third degree assault conviction for the January Assault.

¶ 13 Following his conviction, Sampson pleaded guilty to second degree assault in the companion case, 18CR1574, and in exchange, the prosecution agreed to dismiss the remaining charges in that case and for the sentence to run concurrently to Sampson's sentence in 18CR1726.

¶ 14 Sampson appeals, contending the trial court erred by (1) limiting the jury's consideration of his voluntary intoxication defense; (2) improperly defining specific intent to the jury; (3) giving the jury a modified-Allen instruction during deliberations; (4) overruling his prosecutorial misconduct objections; and (5) not crediting him for presentence confinement time on his plea sentence. We disagree that the court reversibly erred during his trial and affirm that portion of the judgment. But we agree that the court erred by not crediting him for presentence confinement, so we reverse this portion of the judgment and remand for the court to calculate Sampson's PSCC for his sentence in 18CR1574 and to correct the mittimus.

III. Jury Instructions

¶ 15 Sampson contends that the trial court erred by incorrectly instructing the jury in three ways: (1) by instructing the jury to limit its consideration of his self-induced intoxication defense to only the January Assault; (2) by incorrectly defining “specific intent” because the court's instruction was misleading and may have lowered the prosecution's burden of proof on the second degree assault (serious bodily injury) charges; and (3) by giving the jury a modified-Allen instruction without first questioning the jury to determine whether further deliberations would be helpful. We disagree.

A. Standard of Review

¶ 16 Trial courts have an affirmative duty to properly instruct the jury on the applicable law. People v. Jones, 2018 COA 112, ¶ 24. “The trial court must properly instruct the jury on all matters of law to enable the jury to determine whether the prosecution met its burden to prove every element of the charged offenses beyond a reasonable doubt.” People v. Sandoval, 2018 COA 156, ¶ 12.

¶ 17 We review de novo whether a trial court properly instructed the jury. Tibbels v. People, 2022 CO 1, ¶ 22.

¶ 18 The trial court has broad discretion in deciding whether to give a modified-Allen instruction, and we will not disturb its ruling unless it abuses that discretion. People v. Cox, 2023 COA 1, ¶ 16 (citing Gibbons v. People, 2014 CO 67, ¶¶ 12, 31).

B. Voluntary Intoxication Defense

1. Applicable Assault Law

¶ 19 A person commits the crime of assault in the second degree (serious bodily injury) if, “[w]ith intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another.” § 18-3-203(1)(g), C.R.S. 2022. Second degree assault under this subsection is a specific intent crime because it requires a defendant to act “[w]ith intent to cause bodily injury to another person.” Id.

A person acts “intentionally” or “with intent” when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred.

§ 18-1-501(5), C.R.S. 2022.

¶ 20 Intoxication is defined as “a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.” § 18-1-804(4), C.R.S. 2022.

Intoxication of the accused is not a defense to a criminal charge ․ but ․ evidence of intoxication of the defendant may be offered by the defendant when it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged.

§ 18-1-804(1). Thus, voluntary intoxication is a partial defense to the second degree assault charges. See Brown v. People, 239 P.3d 764, 769 (Colo. 2010).

¶ 21 “The trial court should instruct the jury on a principle of law when there is some evidence to support the instruction,” People v. Montoya, 928 P.2d 781, 783 (Colo. App. 1996), and a criminal defendant is entitled to a voluntary intoxication jury instruction when “there is a rational basis for the instruction in the evidentiary record.” Brown, 239 P.3d at 770.

2. Analysis

¶ 22 During Sampson's trial, witnesses, particularly the victim, testified that Sampson and the victim had, at times, consumed alcohol and methamphetamine. The testimony also indicated that Sampson consumed methamphetamine before the January Assault. And the victim testified that Sampson was inexplicably upset and angry before each incident.

¶ 23 Based on this testimony, Sampson requested that the trial court instruct the jury on self-induced intoxication as a defense that he could not form the specific intent necessary for a second degree assault conviction. He argued that the victim's general testimony about methamphetamine use during the relationship, paired with her description of his erratic behavior before each incident, was sufficient circumstantial evidence to support the instruction as to all five second degree assault counts. The prosecutor disagreed, arguing that evidence of Sampson consuming intoxicating substances could only apply to the two second degree assault counts related to the January Assault because that was the only incident where any specific evidence suggested he had consumed drugs close in time to the charged conduct.

¶ 24 The trial court agreed that an instruction was appropriate for the second degree assault charges based on the January Assault, but the court concluded there was no evidence suggesting Sampson was intoxicated or under the influence for the other two incidents. The court reasoned,

[I]f there's no evidence ․ that has been presented at all, that ․ Sampson was intoxicated or under the influence of anything for two of the events that are charged, I'm not going to — I think it would mislead or confuse the jury [i]f I told them that it applied.

So I'm only going to apply it to those in which there is a — any evidence presented that ․ Sampson was intoxicated or under the influence

Thus, the court decided to expressly instruct the jury not to “consider evidence of self-induced intoxication for purposes of deciding whether the prosecution” proved the second degree assault charges based on the September and August Assaults.

¶ 25 Sampson contends that the trial court erred by denying his self-induced intoxication as a defense for the September and August Assaults. And he contends that the instruction prohibiting the jury from considering self-induced intoxication for those specific assaults was also error. We disagree.

¶ 26 We are not persuaded that the victim's general testimony that Sampson consumed drugs at times during their relationship, or that he behaved erratically before the assaults, was sufficient evidence to rationally support a voluntary intoxication instruction. See Brown, 239 P.3d at 770. And Sampson points to no other evidence, direct or circumstantial, that he was intoxicated during the two Assaults at issue. See People v. Brown, 218 P.3d 733, 739 (Colo. App. 2009) (“No intoxication instruction was required here because there was no evidence defendant committed the crime while intoxicated.”), aff'd, 239 P.3d 764 (Colo. 2010). Absent evidence linking Sampson's use of intoxicating substances to the specific events at issue, it would be mere speculation for a jury to assume because he used drugs on some occasions, that perhaps he was intoxicated during the September and August Assaults. We thus conclude that the court did not err by instructing the jury to confine its consideration of the self-induced intoxication defense to the January Assault. See id.; see also People v. Montez, 197 Colo. 126, 128, 589 P.2d 1368, 1369 (1979) (holding that the trial court properly refused voluntary intoxication instruction when no witness testified as to intoxication); cf. People v. Brionez, 39 Colo. App. 396, 399, 570 P.2d 1296, 1299 (1977) (stating that a single witness statement that defendant “seemed a little drunk” was insufficient to support a voluntary intoxication instruction).

C. Specific Intent Explanation

¶ 27 The court instructed the jury on the elements of each count charged, accompanied by explanations of certain words and phrases. The jury instructions properly identified the elements of second degree assault (serious bodily injury) as follows: (1) “That ․ Sampson”; (2) “in the State of Colorado, at or about the date and place charged”; (3) “with intent”; (4) “to cause bodily injury to another person”; (5) “caused serious bodily injury to that person or another person”; (6) “without the affirmative defense [of self-defense] (if applicable).” A separate instruction defined the applicable culpable mental state, “with intent,” as follows:

A crime is committed when ․ Sampson has committed a voluntary act prohibited by law, together with a culpable state of mind.

․

The culpable state of mind is as much an element of the crime as the act itself and must be proven beyond a reasonable doubt, either by direct or circumstantial evidence.

In this case, the applicable states of mind are explained below:

As to the crime of Assault in the Second Degree, a person acts “intentionally” or “with intent” when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial whether or not the result actually occurred.

¶ 28 Sampson challenges this instruction. He contends that the final sentence of the “with intent” definition (“It is immaterial whether or not the result actually occurred.”) lowered the prosecution's burden to prove the causation element — i.e., that serious bodily injury was the result of his actions — because this explanation could mislead the jury into believing it could convict him of second degree assault (serious bodily injury) regardless of whether any serious bodily injury had occurred. Thus, he contends that the court's departure from the statutory definition provided by section 18-1-501(5) violated his constitutional rights and was reversible error. We disagree.

¶ 29 We note that the definition in the challenged instruction here is identical to that provided in the pattern jury instruction on the requirements for criminal liability. See COLJI-Crim. G1:01 (2022). It is also consistent with the statutory definition of “intentionally” or “with intent.” See § 18-1-501(5). The definitional instruction also informed the jury that the prosecution had to prove both that Sampson committed the criminal act and that he held the culpable mental state. And the court's elemental instruction on second degree assault (serious bodily injury) correctly required the jury to find that Sampson caused serious bodily injury to a person. See People v. Freeman, 739 P.2d 856, 859 (Colo. App. 1987) (“The propriety of any one instruction must be determined by considering all of the instructions as a whole.” (citing People v. Green, 658 P.2d 281 (Colo. App. 1982))). We presume that the jury followed the court's instructions. See People v. Lahr, 2013 COA 57, ¶ 25 (“Absent contrary evidence, we presume that jurors follow a district court's instructions.”). Accordingly, there is no basis for concluding that the challenged instruction misled the jury into believing that it could return a guilty verdict on second degree assault (serious bodily injury) without finding that Sampson caused serious bodily injury to the victim.

D. Modified-Allen Instruction

¶ 30 The jury started its deliberations around 1 p.m. on the fifth day of trial. On the sixth day, it sent this question to the court: “If we are ‘hung’ on some counts, do our unanimous decisions on the other counts still stand?” The court conferred with the parties and proposed “answering ‘yes,’ and giving [the jury] a modified-Allen instruction.” Sampson replied, “I believe that's fine with the Defense.”

¶ 31 The court's proposed modified-Allen instruction read as follows:

Since it appears to the Court that your deliberations have been somewhat lengthy without a verdict being reached, the Court wishes to suggest a few thoughts which you should consider in your deliberations, along with the evidence in the case and all of the instructions previously given.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching a verdict, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case and to determine whether the prosecution has proven each element of each alleged crime beyond a reasonable doubt.

¶ 32 After reviewing this instruction, Sampson's counsel responded to the court, “I guess the only thing I would add, I know some courts will ask the jurors if they think further deliberations are helpful, which I usually request. But I'll defer to the Court.” The court declined to ask the jury this question, and the court's response, along with the modified-Allen instruction, were sent to the jury without objection from counsel. The jury returned unanimous verdicts by 1:20 p.m. that day.

¶ 33 Relying primarily on People v. Black, 2020 COA 136, Sampson contends that the trial court reversibly erred by giving the jury the modified-Allen instruction without first inquiring with the jurors about whether they were deadlocked.

¶ 34 The People contend that Sampson waived his challenge to the modified-Allen instruction because his response to the court showed that he knew he could ask the court to inquire whether the jury was hopelessly deadlocked or if further deliberations would be helpful, but he deferred to the court on the matter. The People argue that this constituted a knowing relinquishment of a known right, so Sampson cannot claim it was error on appeal. See People v. Vergari, 2022 COA 95, ¶ 10. We agree with the People.

¶ 35 During trial, Sampson's counsel noted that “some courts will ask the jurors if they think further deliberations are helpful” and said that he would “usually request” a court to so inquire. But Sampson's counsel went on to “defer to the Court” over whether to make such an inquiry. We conclude that Sampson's counsel telling the court that he “usually requests” the inquiry demonstrated that he knew he had the right to make such a request. See People v. Bott, 2019 COA 100, ¶ 20 (“[A]s a prerequisite to waiver, we must find that the defendant (or his counsel) knew of the right before relinquishing it.”), aff'd, 2020 CO 86; cf. People v. Rediger, 2018 CO 32, ¶¶ 42-43 (concluding defendant did not waive challenge to jury instruction where the record contained no evidence he knew of discrepancy between charging document and jury instruction, and defendant did not discuss it on the record). By then specifically deferring to the court's discretion on the matter, we conclude Sampson waived his right to challenge the court's decision on appeal. See People v. Tee, 2018 COA 84, ¶ 37 (“[T]he dialogue between defense counsel and the trial court over this issue went far beyond a ‘rote statement that [counsel] is not objecting ․’ ” (quoting United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir. 2008))). Thus, this issue presents nothing for us to review. See id. at ¶ 42.

IV. Prosecutorial Misconduct

¶ 36 Sampson contends that the court erred by allowing the prosecutor, during voir dire, to characterize the case as one that “involves a relationship that is considered domestic violence.” He argues that this error was compounded by the prosecutor's closing argument that described part of the August Assault as representative of his entire relationship with the victim. We disagree.

A. Voir Dire

¶ 37 At the beginning of voir dire, Sampson requested additional questioning time because “in the context of domestic violence, ․ jurors oftentimes do have strong opinions or personal experiences which may impact their ability to be fair and impartial.” This observation proved to be apt. After the court explained the charges against Sampson to the panel, one prospective juror volunteered that she would be unable to fairly consider the evidence because she had been a victim of domestic violence. And multiple other jurors indicated that their past experiences related to violence or domestic violence could make it difficult for them to fairly consider evidence in the case.

¶ 38 Later in voir dire, the prosecutor started to specifically ask the jurors about their experiences with domestic violence.

I want to talk a little bit about probably the most hot button topic in this case, and that's going to be domestic violence. And in this case, it involves a relationship that is considered domestic violence. And what do I mean by that? Well, in Colorado there's no crime called domestic violence —

Sampson objected, arguing that this was “[the prosecutor] interjecting her personal opinion about the facts that aren't proven yet.” The court overruled the objection, and the prosecutor proceeded to ask,

There's no specific crime called “domestic violence.” Now, things can be an act of domestic violence. So what it is, it's Third-Degree Assault as an act of domestic violence, or Battery as an act of domestic violence.

So the crimes you're actually going to be asked to find the Defendant guilty of are not going to be called “domestic violence,” but they're going to be called specific crimes. I want to talk about domestic violence though itself.

So who here has anyone that they know that's a close family member, or maybe themselves, or a close friend that was involved in a domestic violence relationship?

B. Closing Argument

¶ 39 While presenting its case, the prosecution called a witness who saw Sampson and the victim at a gas station during the August Assault. She testified that she saw a fist fight between two men; one man was inside a car, and the other was standing outside of it. She also testified that she noticed a woman sitting in the back seat of the man's car. While the two men were fighting, the woman — who was bleeding and appeared to have been punched in the face — exited the car and climbed into the witness's car. Once the men stopped fighting, the man inside the car got out, walked over to the witness's car, and ordered the woman to get out. When the woman refused to do so, the man punched her through the open window before he eventually opened the door and pulled her out. The witness testified that the woman did not try to fight back or run, and the man pulled her back to his car and put her in the back seat. Other witness testimony, such as from the victim and her daughter, identified these men as Sampson and the victim's daughter's boyfriend and the woman as the victim in this case.

¶ 40 During his closing argument, Sampson described this witness as having “no stake in this. No motive. No bias whatsoever.” And Sampson went on to point out discrepancies between this witness's testimony and the victim's testimony.

¶ 41 In rebuttal, the prosecutor highlighted that everyone agreed that this witness had “no bias, no prejudice,” and then she characterized the witness's testimony as “a great example of the totality of the relationship between [the victim] and ․ Sampson.” The prosecutor recounted parts of the witness's testimony that were either consistent with the victim's account of the events or that tended to show that Sampson was the initial aggressor (undercutting his self-defense affirmative defense) during the August Assault. And she summed the witness's testimony up as this:

She then sees him actually try to pull [the victim] out of her window. Again, the aggressor being aggressive. She talks about the fact that he opens her door and grabs [the victim] and pulls her out. You heard all [the] testimony and evidence that [the victim] was being meek. Not once did she yell at him. Not once did she raise her hand toward him. Not once did she try to fight back. And that was their relationship in a nutshell.

C. Standard of Review

¶ 42 When a defendant raises a claim of prosecutorial misconduct, we engage in a two-step analysis. People v. Robinson, 2019 CO 102, ¶ 18 (citing Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). “First, we must determine whether the prosecutor's conduct was improper ‘based on the totality of the circumstances.’ ” Id. (quoting Wend, 235 P.3d at 1096). And second, if the conduct was improper, we must decide “whether such actions warrant reversal according to the proper standard of review.” Id. Each step is analytically independent of the other. Id.

¶ 43 “The propriety of questions to potential jurors on voir dire is within the discretion of the trial court, and its ruling thereon will not be disturbed on appeal unless an abuse of that discretion is shown.” People v. Collins, 730 P.2d 293, 300 (Colo. 1986); accord People v. Wilson, 2013 COA 75, ¶ 11.

¶ 44 Statements of personal opinion or inflammatory comments made by the prosecution and objected to by the defendant are subject to review under the harmless error standard. Crider v. People, 186 P.3d 39, 42 (Colo. 2008); see People v. Griffith, 58 P.3d 1111, 1113 (Colo. App. 2002) (“[E]rrors that do not substantially influence the verdict or affect the fairness of the proceedings may be deemed harmless.”).

D. Analysis

¶ 45 Sampson contends that the prosecutor's question during voir dire improperly suggested to the jury that there was additional uncharged evidence of domestic violence permeating his relationship with the victim. He argues that this improper voir dire question was compounded by the prosecutor characterizing testimony about the August Assault as “the totality of their relationship” and “their relationship in a nutshell.” We disagree that allowing these comments was reversible error for five reasons.

¶ 46 First, while it is improper for the prosecutor to intentionally use voir dire to argue her case to the jury, see People v. Krueger, 2012 COA 80, ¶ 50, during voir dire, a prosecutor may generally conduct questioning to determine a juror's “willingness ‘to accept the basic principles of criminal law’ ” and to follow the trial court's instructions, Wilson, ¶¶ 14, 17 (citation omitted). The prosecutor may not misstate the law, present factual matters known to be inadmissible, or instruct the jury on her theory of the case. People v. Carter, 2015 COA 24M-2, ¶ 71. And we conclude that the prosecutor did none of those things here.

¶ 47 It was undisputed that the case against Sampson included crimes charged as acts of domestic violence. And we afford “prosecutors the benefit of [the] doubt where remarks are ‘ambiguous,’ or simply ‘inartful.’ ” People v. McBride, 228 P.3d 216, 221 (Colo. App. 2009) (citations omitted). The question was probative of the panel's potential bias. See Wilson, ¶ 12 (The purposes of voir dire are to allow counsel “to determine whether any potential jurors possessed any beliefs that would bias them.” (quoting People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996))). And the question could assist in the intelligent exercise of challenges for cause and peremptory challenges. People v. Rudnick, 878 P.2d 16, 20-21 (Colo. App. 1993). Accordingly, we discern no abuse of discretion by the trial court overruling Sampson's objection to the voir dire question. See Collins, 730 P.2d at 300.

¶ 48 Second, a “prosecutor has considerable latitude in choosing what language and rhetorical style to employ during argument to the jury,” so long as the prosecutor does not “misstate the evidence or the law, attempt to inflame the jurors’ passions or prejudices, or offer a personal opinion as to the defendant's guilt.” Krueger, ¶ 50; see Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005); People v. Samson, 2012 COA 167, ¶ 32. We evaluate a claim of prosecutorial misconduct by looking at the “context of the argument as a whole and in light of the evidence before the jury.” Carter, ¶ 63 (quoting Samson, ¶ 30). In making closing arguments, a prosecutor may ordinarily “employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance.” Id. at ¶ 70 (quoting People v. Collins, 250 P.3d 668, 678 (Colo. App. 2010)).

¶ 49 The prosecutor did not make a misstatement of the law or “attempt to inflame the jurors’ passions or prejudices.” Krueger, ¶ 50. Nor did she misstate the facts or introduce facts outside of evidence. See id.; Samson, ¶ 32. So we conclude that the prosecutor's argument that the witness's testimony was “a great example of the totality of” Sampson's “relationship [with the victim]” and “was their relationship in a nutshell” was a rhetorical device commenting on the evidence presented. See Carter, ¶¶ 63, 70.

¶ 50 Third, the portions of closing argument Sampson challenges were passing comments made by the prosecutor in rebuttal. These comments came after Sampson argued that his affirmative self-defense should apply. “A prosecutor is afforded considerable latitude in replying to an argument by opposing counsel.” People v. Dunlap, 124 P.3d 780, 809 (Colo. App. 2004).

¶ 51 Fourth, near the beginning of closing arguments, the trial court instructed the jury as follows: “The attorneys may comment on the rules that I just read to you. What the attorneys say is not evidence. It's not the law. What I say is the law. What you heard is the evidence. This is just argument.” The court reemphasized this instruction multiple times during closing arguments. And in its final instructions, the court instructed the jury that “[t]he evidence in this case consists of the sworn testimony of all the witnesses and all exhibits which have been received into evidence. You are to consider only the evidence in this case and reasonable inferences therefrom.” Thus, the trial court instructed the jury that closing arguments were not evidence and that its verdict must be based on the evidence presented at trial. And we assume the jury followed these instructions. See Lahr, ¶ 25; see also People v. Santana, 255 P.3d 1126, 1136 (Colo. 2011) (holding that the court's instruction “neutralized” the prosecutor's improper arguments).

¶ 52 Fifth, the jury acquitted Sampson on various counts, suggesting that the jury was able to consider the evidence and law applicable to each offense separately and reach a verdict based on each count alone. See Martin v. People, 738 P.2d 789, 795-96 (Colo. 1987) (holding that a split verdict is an indication that a trial error did not contribute to the jury's verdict); accord People v. Daley, 2021 COA 85, ¶ 97.

¶ 53 We therefore conclude that any possible error by the court in allowing these comments, either individually or in combination, is harmless because “[t]hese statements were a very brief part, and not the focus, of the overall voir dire and argument. [And] [d]uring closing argument, the court instructed the jurors that attorney arguments were not evidence.” Carter, ¶ 73 (citation omitted); see Griffith, 58 P.3d at 1113.

V. 18CR1574 Plea Sentence Mittimus

¶ 54 Pursuant to a plea agreement in case number 18CR1574, the court sentenced Sampson to sixteen years in the custody of the DOC to run concurrently to his aggregate eighteen-year sentence in 18CR1726. The court went on to determine that Sampson was entitled to PSCC of 726 days on case 18CR1726. And the parties agreed that he should receive 417 days of PSCC toward his sentence in 18CR1574. But because the court decided that it would be simpler to enter one mittimus combining the sentences in both cases, with 726 days of PSCC, the court made no final determination on how much PSCC Sampson should receive toward his sentence in 18CR1574.

¶ 55 Without explanation, the court did not enter one combined mittimus for both cases. Instead, the court entered a separate mittimus for each case and the mittimus for 18CR1574 did not apply any PSCC toward Sampson's plea sentence.

¶ 56 “We review de novo whether the mittimus accurately reflects the sentence imposed at the sentencing hearing.” People v. Mendenhall, 2015 COA 107M, ¶ 84.

¶ 57 Sampson contends, the People concede, and we agree that the court erred by omitting PSCC from its sentence in 18CR1574. See § 18-1.3-405, C.R.S. 2022 (“A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of [their] sentence for the entire period of such confinement.”).

¶ 58 In the context of PSCC, “when a court sentences an offender to [the] DOC, the court's only role is to calculate the amount of presentence confinement.” People v. Smith, 2014 CO 10, ¶ 14. “The court has no discretion to grant or deny the offender PSCC when the offender is sentenced to the DOC ․” Id.; see Edwards v. People, 196 P.3d 1138, 1144 (Colo. 2008) (sentencing court must note the amount of PSCC on the mittimus). Because the court did not ultimately make a finding on how much PSCC Sampson is entitled to on his sentence in 18CR1574, we reverse on this issue and remand the case with directions for the trial court to determine the appropriate amount of PSCC and correct the mittimus accordingly.

VI. Conclusion

¶ 59 The judgment is affirmed in part and reversed in part, and the case is remanded with directions for the trial court to determine the appropriate amount of PSCC in 18CR1574 and correct the mittimus.

Opinion by JUDGE FURMAN

Tow and Johnson, JJ., concur JUDGE TOW and JUDGE JOHNSON concur.