Colo. R. Crim. P. 52
Colo. R. Crim. P. 52
Annotation I. General Consideration. Law reviews. For article, "United States Supreme Court Review of Tenth Circuit Decisions", which discusses attorney misconduct as harmless error, see 63 Den. U. L. Rev. 473 (1986). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a recent case relating to harmless error, see 15 Colo. Law. 1616 (1986). For article, "Standards of Appellate Review in State Versus Federal Courts", see 35 Colo. Law. 43 (April 2006). Applied in Ruark v. People, 164 Colo. 257, 434 P.2d 124 (1967), cert. denied, 390 U.S. 1044, 88 S. Ct. 1644, 20 L. Ed. 2d 306 (1968); Morehead v. People, 167 Colo. 287, 447 P.2d 215 (1968); Wiseman v. People, 179 Colo. 101, 498 P.2d 930 (1972); Scott v. People, 179 Colo. 126, 498 P.2d 940 (1972); People v. Baca, 179 Colo. 156, 499 P.2d 317 (1972); People v. Vigil, 180 Colo. 104, 502 P.2d 418 (1972); People v. Spinuzzi, 184 Colo. 412, 520 P.2d 1043 (1974); People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975); People v. McClure, 190 Colo. 250, 545 P.2d 1038 (1976); People v. LeFebre, 190 Colo. 307, 546 P.2d 952 (1976); People v. Bastardo, 191 Colo. 521, 554 P.2d 297 (1976); Chandler Trailer Convoy, Inc. v. Rocky Mt. Mobile Home Towing Servs., Inc., 37 Colo. App. 520, 552 P.2d 522 (1976); People v. Brionez, 39 Colo. App. 396, 570 P.2d 1296 (1977); People v. Thorpe, 40 Colo. App. 159, 570 P.2d 1311 (1977); People v. Stitt, 40 Colo. App. 355, 575 P.2d 446 (1978); People v. Taylor, 191 Colo. 161, 591 P.2d 1017 (1979); People v. Reyes, 42 Colo. App. 73, 589 P.2d 1385 (1979); People v. Am. Health Care, Inc., 42 Colo. App. 209, 591 P.2d 1343 (1979); People v. Davenport, 43 Colo. App. 41, 602 P.2d 871 (1979); People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980); People v. Smith, 620 P.2d 232 (Colo. 1980); People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980); People v. Massey, 649 P.2d 1112 (Colo. App. 1980), aff'd, 649 P.2d 1070 (Colo. 1982); People v. Nisted, 653 P.2d 60 (Colo. App. 1980); People v. Small, 631 P.2d 148 (Colo. 1981); People v. Christian, 632 P.2d 1031 (Colo. 1981); People v. Padilla, 638 P.2d 15 (Colo. 1981); People v. Swanson, 638 P.2d 45 (Colo. 1981); People v. Founds, 631 P.2d 1166 (Colo. App. 1981); People v. Dillon, 633 P.2d 504 (Colo. App. 1981); People v. Roark, 643 P.2d 756 (Colo. 1982); People v. Gallegos, 644 P.2d 920 (Colo. 1982); People v. Handy, 657 P.2d 963 (Colo. App. 1982); People v. Jones, 665 P.2d 127 (Colo. App. 1982); People v. Hart, 658 P.2d 857 (Colo. 1983); People v. Cisneros, 665 P.2d 145 (Colo. App. 1983); People v. Priest, 672 P.2d 539 (Colo. App. 1983); People v. Beasley, 683 P.2d 1210 (Colo. App. 1984); Callis v. People, 692 P.2d 1045 (Colo. 1984); People v. Armstrong, 704 P.2d 877 (Colo. App. 1985); Williams v. People, 724 P.2d 1279 (Colo. 1986); People v. Wieghard, 727 P.2d 383 (Colo. App. 1986); People v. Rivers, 727 P.2d 394 (Colo. App. 1986); People v. Galimanis, 765 P.2d 644 (Colo. App. 1988), cert. granted, 783 P.2d 838 (Colo. 1989), cert. denied, 805 P.2d 1116 (Colo. 1991); People v. Schuett, 833 P.2d 44 (Colo. 1992); People v. Corpening, 837 P.2d 249 (Colo. App. 1992); People v. Ornelas, 937 P.2d 867 (Colo. App. 1996); People v. Thompson, 950 P.2d 608 (Colo. App. 1997); People v. Gallegos, 950 P.2d 629 (Colo. App. 1997). II. Harmless Error. No reversal where insufficient error. Where there is no error of sufficient magnitude, reversal of judgment of conviction is not required. Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972). Harmless, constitutional error. The admission of an in-court identification without first determining that it is not tainted by an illegal lineup but is of independent origin may be constitutional error; but such error may be considered harmless even if there has been an illegal lineup confrontation, if the identification witness makes an in-court identification based on sufficient independent observations of the defendant, disassociated from the pretrial lineup. Espinoza v. People, 178 Colo. 391, 497 P.2d 994 (1972). Constitutional errors may be characterized as harmless only when the case against a defendant is so overwhelming that the constitutional violation is harmless beyond a reasonable doubt. People v. Matthews, 662 P.2d 1108 (Colo. App. 1983); People v. Jensen, 747 P.2d 1247 (Colo. 1987); Topping v. People, 793 P.2d 1168 (Colo. 1990); People v. Denton, 91 P.3d 388 (Colo. App. 2003); People v. Delgado-Elizarras, 131 P.3d 1110 (Colo. App. 2005). Before an error affecting a defendant's constitutional right to testify in his own behalf can be deemed harmless, an appellate court must determine beyond a reasonable doubt that the error did not contribute to the verdict. People v. Evans, 630 P.2d 94 (Colo. App. 1981); Crespin v. People, 721 P.2d 688 (Colo. 1986); Topping v. People, 793 P.2d 1168 (Colo. 1990). Absence of defense counsel at critical stage of proceedings, which is a constitutional error, can be harmless if the error is a "trial error" that can be quantitatively assessed on appellate review as opposed to "structural defect" that affects the framework within which the trial proceeds. Key v. People, 865 P.2d 822 (Colo. 1994). The standard for harmless error is the prosecution must show that the error did not contribute to a defendant's conviction. If there is reasonable probability from review of the entire record that a defendant could be prejudiced the error is not harmless. Key v. People, 865 P.2d 822 (Colo. 1994). An ex parte scheduling conference with jurors during deliberations occurred at a critical stage of the criminal proceedings and was not harmless error. Key v. People, 865 P.2d 822 (Colo. 1994). Markings from codefendant's trial on exhibits harmless. Fact that certain exhibits used in defendant's trial had court reporter's identification marks on them remaining from their use in the codefendant's trial, did not result in any prejudice and, at most, the marks constituted harmless error which is not ground for reversal. People v. Gallegos, 181 Colo. 264, 509 P.2d 596 (1973). As may be use of void prior convictions for impeachment. The error implicit in the use of void prior convictions for impeachment purposes need not necessarily require reversal, particularly where the error is found to be harmless beyond a reasonable doubt. People v. Neal, 187 Colo. 12, 528 P.2d 220 (1974). Or failure to properly instruct jury. Where jury instruction failed to include an essential part of the two-witness rule in prosecution for perjury, i.e., that the corroborating evidence must be deemed of equal weight to the testimony of another witness, this omission was harmless error inasmuch as there was direct testimony by three witnesses contradicting the defendant's grand jury testimony. People v. Mazza, 182 Colo. 166, 511 P.2d 885 (1973). Where the admissions of a defendant as either extrajudicial statements or a confession is not an issue of significance, the giving of an instruction on them is not grounds for relief. Yerby v. People, 176 Colo. 115, 489 P.2d 1308 (1971). Where one is benefited by an error in submitting or failing to submit an instruction, he cannot claim prejudicial error. Atwood v. People, 176 Colo. 183, 489 P.2d 1305 (1971). Where evidence of a petty offense by defendants is introduced during a felony trial, the trial judge should instruct the jury as to its limited purpose, but his failure to do so is harmless error, considering the nature of the petty offense as compared with the gravity of the charge against the defendants. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Where a court errs in giving an instruction that prejudices the state rather than the defendant in that it increases the state's burden beyond that required, no grounds for reversal are created. Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972). While it is unnecessary and poor practice to give the jury a separate instruction on the credibility of a defendant as a witness, the giving of such an instruction does not constitute reversible error. People v. Hankin, 179 Colo. 70, 498 P.2d 1116 (1972). Where there is overwhelming evidence of the defendant's deliberation in a first degree murder case, the use of an outmoded jury instruction on the law of deliberation is harmless error. People v. Key, 680 P.2d 1313 (Colo. App. 1984). Inclusion of allegation of aggravation in jury instruction for simple robbery charge which was basis of felony murder charge constituted harmless error as instruction inured to benefit of defendant. People v. Driggers, 812 P.2d 702 (Colo. App. 1991). Or admission of challenged statement. Where the defendant's substantial rights were not affected by the admission into evidence of a challenged statement, no reversible error occurs. People v. McKnight, 626 P.2d 678 (Colo. 1981). Or improper questioning concerning coconspirator's guilty plea. While a prosecutor should not elicit testimony concerning a coconspirator's guilty plea, when the evidence of a defendant's guilt is overwhelming, reference to the guilty plea is harmless error, especially when defense counsel questions the witness about this guilty plea in an effort to impeach his credibility. People v. Craig, 179 Colo. 115, 498 P.2d 942, cert. denied, 409 U.S. 1077, 93 S. Ct. 690, 34 L. Ed. 2d 666 (1972). Or error in admitting testimony of codefendant. Error, if any, in admitting testimony as to admissions which were made by codefendant who under prosecution theory was principal perpetrator of robbery and murder that constituted basis for first-degree murder charge of defendant as an accessory, which indicated that another person was present and the admission of which allegedly violated defendant's sixth amendment right of confrontation was harmless, where additional evidence consisting of testimony of three eyewitnesses also established that the robbery was committed by two men. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). It is not reversible error to admit evidence concerning a description of defendants just because it is testimony of a codefendant as to whom the severance has been granted, thereby operating so as either to deprive defendants of an opportunity to cross-examine or to require a waiver of the benefits of a severance to which they are entitled, where in view of the inconclusive nature of the identification, it cannot be said that there is any prejudice to the defendants from the admission of this evidence, although it would clearly be a better procedure to conceal the source of the extrajudicial identifications. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Failure to grant continuance or mistrial where witness fails to appear held harmless error. People v. Lee, 180 Colo. 376, 506 P.2d 136 (1973). Failure to provide definition of "custody" and "confinement" to the jury was harmless error under the circumstances portrayed by the record. A trial court is under an obligation to instruct the jury properly, and a failure to do so as to every element of a crime charged is error. However, the lack of instruction by the court as to the meanings of "custody" and "confinement" inured to the defendant's benefit and thus the instructional failure here constituted harmless error. People v. Atkins, 885 P.2d 243 (Colo. App. 1994). Failure to grant motion for mistrial not an abuse of discretion where trial court sustained defendant's objection to question suggesting prior criminal conduct, defendant did not request that a curative instruction be given to the jury and none was given, and no substantial prejudice to defendant was demonstrated. People v. Talley, 677 P.2d 394 (Colo. App. 1983). Improper admission of defendant's refusal to sign a written Miranda advisement held harmless error. People v. Mack, 638 P.2d 257 (Colo. 1981). Improper admission of evidence to which hearsay exceptions did not apply held harmless error since the admission did not contribute to defendant's conviction, nor did it prejudice the proceedings. People v. Blecha, 940 P.2d 1070 (Colo. App. 1996), aff'd, 962 P.2d 931 (Colo. 1998). When misstatements at trial do not require reversal. Where misstatements do not so inflict the trial as to require more than an admonition given to the jury by the trial judge in the exercise of his discretion and no motion for mistrial on these grounds is made at the time of the statements, there are not substantial grounds for reversal. Fernandez v. People, 176 Colo. 346, 490 P.2d 690 (1971). Nor improper argument by prosecutor. A prosecutor's argument is not prejudicial and does not require reversal when the trial judge tells the prosecution to terminate the line of argument and instructs the jury that argument is not evidence. People v. Motley, 179 Colo. 77, 498 P.2d 339 (1972). Attorney prohibited from characterizing a witness's testimony or his character for truthfulness with any form of the word "lie". A violation of this prohibition, although sanctionable in other ways, does not warrant reversal if it was harmless. Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005); Crider v. People, 186 P.3d 39 (Colo. 2008). Prosecutor prohibited from making generic tailoring arguments, which are improper because they are not based on reasonable inferences from evidence in the record. Martinez v. People, 244 P.3d 135 (Colo. 2010). Prosecutor's closing argument that defendant who testified at trial had an opportunity to listen to all of the testimony and tailor his testimony to fit that of other witnesses improper. Martinez v. People, 244 P.3d 135 (Colo. 2010). Prosecutor's generic tailoring comments harmless, however, because defendant commented on and expressly incorporated testimony of prior witnesses and because of substantial evidence calling into question defendant's credibility. No reasonable probability existed that prosecutor's generic tailoring argument, even though improper, influenced jury's determination of defendant's credibility or guilt. Martinez v. People, 244 P.3d 135 (Colo. 2010). Nor giving of stock instruction. The giving of a stock instruction on the presumption of innocence does not constitute reversible error just because of its historical use. Jorgensen v. People, 178 Colo. 8, 495 P.2d 1130 (1972). Nor failure to allow examination of grand jury testimony. The failure of a trial judge to grant a defendant and his counsel the right to examine grand jury testimony is not reversible error. Robles v. People, 178 Colo. 181, 496 P.2d 1003 (1972). Nor inclusion of hearsay. The admission of a death certificate containing the statement that the victim was "helping neighbor investigate burglary of neighbor's store and was shot by one of the burglars during this investigation" is not reversible error, particularly when the court later instructs the jury to ignore that portion of the certificate, although it would be much better practice to delete such included hearsay. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Even if extrajudicial identifications are inadmissible hearsay, when in light of the other material evidence relating defendants to the crime, such identification is clearly cumulative, and any error is harmless. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Nor verbal slip by judge. A defendant is not prejudiced by the trial judge's use of the word "offense" when the judge gives the jury a cautionary oral instruction at the time evidence of another transaction is introduced, and it is not reversible error. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972). Nor failure to administer an oath or affirmation of true translation to interpreter. People v. Avila, 797 P.2d 804 (Colo. App. 1990). Nor failure to conduct a hearing on the admissibility of scientific evidence. Where DNA evidence relates solely to similar transaction evidence, the admission of such evidence, absent a preliminary hearing on its admissibility, is harmless error. People v. Groves, 854 P.2d 1310 (Colo. App. 1992). Nor failure to swear jury prior to beginning of testimony where jury sworn before deliberations. People v. Clouse, 859 P.2d 228 (Colo. App. 1992). Nor where comment on defendant's failure to testify. A comment by the district attorney on defendant's failure to testify was not prejudicial enough to warrant reversal because the trial court properly instructed the jury that the defendant's failure to testify cannot be considered as evidence of guilt or innocence and it is generally accepted that defense counsel may by improper argumentative comment open the door to a response by the prosecuting attorney. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). When the prosecution calls oblique attention to the possible silence of the defendant, but does not make direct reference to the defendant's silence, there is error, but not reversible error. People v. Calise, 179 Colo. 162, 498 P.2d 1154 (1972). Nor admission of defendant's mug shot. Where the evidence of guilt is substantial, the sole error of admitting the defendant's mug shot does not, in and of itself, constitute reversible error. People v. Bugarin, 181 Colo. 57, 507 P.2d 879 (1973). If testimony accompanying introduction of a mug shot does not imply that defendant has a past criminal history, the introduction of the mug shot does not necessitate the granting of a mistrial. People v. Borghesi, 40 P.3d 15 (Colo. App. 2001), aff'd in part and rev'd in part on other grounds, 66 P.3d 93 (Colo. 2003). Nor where material witness functions as officer of court. Where the court, over defendants' objection, allowed the sheriff, who was a material witness for the state, to take part in the conduct of the trial by daily calling the court to order as well as select a few prospective jurors on open venire and the court also refused to give an instruction to the effect that no particular weight was to be attached to the sheriff's testimony by reason of his court functions, but he was not placed in charge of the jury at any time, then reversible error was not committed, although it is a better practice not to permit a material witness to function as an officer of the court. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972). Nor limitation of cross-examination of defendant's coconspirator by refusing to allow inquiry into coconspirator's subjective understanding of his plea arrangement is not reversible error. People v. McCall, 43 Colo. App. 117, 603 P.2d 950 (1979), rev'd on other grounds, 623 P.2d 397 (Colo. 1981). Variance between charge and proof held not fatal. People v. Incerto, 180 Colo. 366, 505 P.2d 1309 (1973). Where transaction charged and the one proved are substantially the same, although not all those allegedly involved in conspiracy are found to have participated, and the object of conspiracy is proved as laid, variance is not reversible error as substantial rights of defendant are not affected. People v. Incerto, 180 Colo. 366, 505 P.2d 1309 (1973). Witness' statement that defendant had been in jail several times held not prejudicial. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972). Failure to record final arguments in a trial to the court is not prejudicial error. People in Interest of B.L.M. v. B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972). Despite defendant's contention that unauthorized persons were allowed in grand jury room and proceedings were not kept secret, the alleged violations did not affect defendant's substantial rights. Petit jury's subsequent guilty verdict made alleged error in grand jury proceeding harmless beyond a reasonable doubt. People v. Cerrone, 867 P.2d 143 (Colo. App. 1993); aff'd on other grounds, 900 P.2d 45 (Colo. 1995). Prejudicial opening statement made in bad faith reversible. Error cannot be predicated upon opening statement of attorney as to what he expects to prove, although his statement is not completely supported by evidence adduced at trial, unless unsupported portion of statement was made in bad faith and was manifestly prejudicial. People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Trial judge to determine effect of potentially prejudicial evidence on jury. The trial judge is in preeminent position to determine potential effects of allegedly prejudicial statements on jurors, and his judgment will only be overturned upon an abuse of discretion. People v. Jacobs, 179 Colo. 182, 499 P.2d 615 (1972). Where the judge examines the jury as to the effect certain knowledge would have upon their ability to render a fair and impartial verdict in a criminal proceeding and is satisfied that their ability would not be impaired, his denial of motion for mistrial is not an abuse of discretion and will not be disturbed on review. Atwood v. People, 176 Colo. 183, 489 P.2d 1305 (1971). Error may be rendered harmless and therefore become not reversible by subsequent proceedings in the case or by the result thereof. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971). A harmless error argument does not apply when the trial court erroneously disqualifies a defendant's retained counsel of choice. Anaya v. People, 764 P.2d 779 (Colo. 1988). Since testimony implicated another person and not defendant, the testimony was not prejudicial to defendant. Any error in the admission of such testimony is harmless. People v. Mapps, 231 P.3d 5 (Colo. App. 2009). Admission of testimony was harmless since it did not substantially influence the verdict or impair the fairness of defendant's trial. People v. Mapps, 231 P.3d 5 (Colo. App. 2009). III. Plain Error. Authority of appellate court to consider plain error. Section (b) permits an appellate court to consider an alleged error which was not brought to the attention of the trial court, if the error affects the substantial rights of the defendant and it is "plain error". Vigil v. People, 196 Colo. 522, 587 P.2d 1196 (1978). A trial error to which no objection is made is forfeited and, therefore, not reviewable. However, such errors can be reviewed for plain error, which means an error must be plain and must affect a substantial right of a party. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005). If no contemporaneous objection to alleged prosecutorial misconduct is made at trial, subsection (b) limits appellate review to a determination of plain error. People v. Fell, 832 P.2d 1015 (Colo. App. 1991). Appellate court cannot correct an error pursuant to section (b) unless the error is clear under current law. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005). If the law is unsettled at the time of trial, the plain error analysis will be conducted using the status of the law at the time of trial. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005). "Plain error" means error both obvious and substantial and those grave errors which seriously affect substantial rights of the accused. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972); People v. Koon, 724 P.2d 1367 (Colo. App. 1986); People v. Roberts, 738 P.2d 380 (Colo. App. 1986). "Plain" is synonymous with "clear" or, equivalently, "obvious". People v. O'Connell, 134 P.3d 460 (Colo. App. 2005). A plain error is an error seriously affecting substantial rights of the accused. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977); People v. Constant, 44 Colo. App. 544, 623 P.2d 63 (1980), rev'd on other grounds, 645 P.2d 843 (Colo. 1982); People v. Green, 759 P.2d 814 (Colo. App. 1988); Harris v. People, 888 P.2d 259 (Colo. 1995). Only error which is obvious and grave can rise to the status of plain error. People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1976); People v. Vialpando, 804 P.2d 219 (Colo. App. 1990). Plain error is error which is "obvious and grave". People v. Peterson, 656 P.2d 1301 (Colo. 1983); People v. Vialpando, 804 P.2d 219 (Colo. App. 1990). The proper inquiry in determining a harmless error question is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings. People v. Quintana, 665 P.2d 605 (Colo. 1983). Plain error occurs when, after review of entire record, the error so undermined trial's fundamental fairness as to cast serious doubt on reliability of conviction. People v. Kruse, 839 P.2d 1 (Colo. 1992); People v. Hampton, 857 P.2d 441 (Colo. App. 1992), aff'd, 876 P.2d 1236 (Colo. 1994); People v. Herr, 868 P.2d 1121 (Colo. App. 1993); Harris v. People, 888 P.2d 259 (Colo. 1995); People v. Kerber, 64 P.3d 930 (Colo. App. 2002); People v. Mullins, 104 P.3d 299 (Colo. App. 2004). A plain error analysis requires a consideration of various factors including the strength of the evidence against the defendant, the posture of the defense, and any persistent, improper remarks by the defendant. People v. Mullins, 104 P.3d 299 (Colo. App. 2004). To meet the burden of plain error, there must be a reasonable possibility that the alleged error contributed to the defendant's conviction. People v. Valdez, 725 P.2d 29 (Colo. App. 1986), aff'd, 789 P.2d 406 (Colo. 1990). No definition of plain error will fit every case, and each case must be resolved on the particular facts or laws which are in issue. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). Each case must be resolved on the particular facts and law at issue. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977). Each case in which it is argued that plain error has been committed must be resolved in light of its particular facts and the law that applies to those facts. People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1976); People v. Peterson, 656 P.2d 1301 (Colo. 1983). And reviewing court to determine existence of plain error. It is incumbent upon a reviewing court, from its own reading of the record, to determine whether "plain error" occurred. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). Even though raised for first time on appeal. Where plain error affecting substantial rights appears, an appellate court, in the interest of justice, may, and should, deal with it, even though it is raised for the first time on appeal. People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972); People v. Meller, 185 Colo. 389, 524 P.2d 1366 (1974); People v. Bridges, 620 P.2d 1 (Colo. 1980). Issues not properly preserved at trial can serve as a basis for reversal only if they involve plain error. People v. Mattas, 44 Colo. App. 139, 618 P.2d 675 (1980), aff'd, 645 P.2d 254 (Colo. 1982). An error in trial proceedings to which the accused fails to make a contemporaneous objection will not support reversal unless it casts serious doubt upon the basic fairness of the trial. Wilson v. People, 743 P.2d 415 (Colo. 1987); People v. Winters, 765 P.2d 1010 (Colo. 1988); People v. Lybarger, 790 P.2d 855 (Colo. App. 1989); Woertman v. People, 804 P.2d 188 (Colo. 1991); People v. Schuett, 833 P.2d 44 (Colo. 1992). Where defendant did not object to use of photocopy, its use did not so undermine the fundamental fairness of trial as to cast serious doubt on the reliability of conviction. People v. Chavez, 764 P.2d 371 (Colo. App. 1988). Because defendant did not object to a jury instruction at trial the court's action is reviewed pursuant to (b) under a plain error standard, with a finding of error only if review of the entire record demonstrates a reasonable possibility that the improper instruction contributed to the defendant's conviction. People v. Blecha, 940 P.2d 1070 (Colo. App. 1996), aff'd, 962 P.2d 931 (Colo. 1998). The court committed harmless error in failing to give the jury cautionary hearsay instructions after each hearsay witnesses' testimony. Three hearsay witnesses testified in sequence, the court gave the cautionary instruction following the testimony of the last hearsay witness and during the general charge to the jury, and the hearsay testimony corroborated the testimony of other witnesses. People v. Valdez, 874 P.2d 415 (Colo. App. 1994.) If a defendant does not object to statements he feels are prejudicial, a plain error standard of review applies. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991); People v. Mendez, 897 P.2d 868 (Colo. App. 1995); People v. Kerber, 64 P.3d 930 (Colo. App. 2002). No error where witness stated defendant was out of prison and that defendant had previously threatened him, where statements were part of the total picture surrounding the offense, the witness's description of defendant's threats were mentioned during defendant's cross-examination of witness, and defendant made no objections or mistrial motions. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991). As long as a fundamental or substantial right has purportedly been violated. Although defendant's trial counsel did not make any contemporaneous objections nor raise the issue in his post-trial motion, an appellate court will consider, nevertheless, alleged error where it involves a fundamental right which has purportedly been violated. Hines v. People, 179 Colo. 4, 497 P.2d 1258 (1972). Even though defendant's counsel neither tendered an instruction on the presumption of innocence nor objected to the court's failure to instruct the jury on the presumption of innocence, because the failure to instruct on the presumption of innocence affects such a substantial right, the supreme court may take cognizance of the error pursuant to section (b). People v. Hill, 182 Colo. 253, 512 P.2d 257 (1973). To constitute reversible error, the introduction of the statement of aggravating factors which was not objected to at trial must affect the substantial rights of a defendant. People v. McKnight, 626 P.2d 678 (Colo. 1981). Whether a defendant has received effective assistance of counsel is a question concerning a fundamental right. Armstrong v. People, 701 P.2d 17 (Colo. 1985). Which is prejudicial. An appellate court will consider issues not raised below where serious prejudicial error was made and justice requires the consideration. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972). Effect of failure to object at trial. Where instructions used by the trial court failed to define the statutory terms, failure to object to the tendered instructions or raise any constitutional objection to the statute at the trial court level raises the standard of review to one of "plain error". People v. Cardenas, 42 Colo. App. 61, 592 P.2d 1348 (1979); People v. Campbell, 678 P.2d 1035 (Colo. App. 1983). Where the issue is raised for the first time on appeal, review is confined to a consideration of whether the error falls within the definition of plain error. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). Where a defendant failed to object to the adequacy of the jury instructions in his motion for a new trial, a judgment will not be reversed unless plain error occurred. People v. Frysig, 628 P.2d 1004 (Colo. 1981). Failure to make timely and sufficient objection at trial prevents consideration of issue on appeal unless it involves plain error. People v. Kruse, 839 P.2d 1 (Colo. 1992). Unless a prosecutor's misconduct is "glaringly or tremendously" improper, it is not plain error under section (b) where no objection to the behavior was raised. People v. Jensen, 55 P.3d 135 (Colo. App. 2001). And review limited when issue not cited in motion for new trial. Where defense counsel objected to the admission of certain evidence, but failed to cite its admission in his motion for a new trial, it may not be considered on appeal unless the introduction of that evidence constituted plain error. People v. Abbott, 638 P.2d 781 (Colo. 1981). Reversal justified where error contributed to conviction. Only when there is at least a reasonable possibility that the action claimed to be plain error contributed to the defendant's conviction can it justify reversal. People v. Aragon, 186 Colo. 91, 525 P.2d 1134 (1974); People v. Mills, 192 Colo. 260, 557 P.2d 1192 (1976). Unless there is a reasonable possibility that the alleged error contributed to defendant's conviction, reversal of the proceedings below is not required. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977). Where the minds of an average jury would not have found the prosecution's case significantly less persuasive by the elimination of the error and the evidence of guilt of the defendant is overwhelming, a defendant is not entitled to reversal based on plain error. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). In order for the court to find plain error, there must be a reasonable possibility that an alleged erroneous instruction contributed to the defendant's conviction. The existence of this possibility must be determined by an examination of the particular facts of the case. People v. Dillon, 655 P.2d 841 (Colo. 1982). Plain error affects substantial rights of the accused, and the record must demonstrate a reasonable possibility that the alleged erroneous instruction contributed to defendant's conviction. People v. Cowden, 735 P.2d 199 (Colo. 1987); People v. Lybarger, 790 P.2d 855 (Colo. App. 1989). Plain error is present only if an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Fell, 832 P.2d 1015 (Colo. App. 1991). Deprivation of affirmative defense deemed plain error. The contention that a defendant has been deprived of an affirmative defense, if meritorious, is plain error. People v. Beebe, 38 Colo. App. 80, 557 P.2d 840 (1976). Improper testimony regarding the procedure for obtaining an arrest warrant and the prosecutor's mistaken statements that only defendant could claim self-defense sufficiently undermined confidence in the reliability of the judgment of conviction. These errors constituted plain error entitling defendant to a new trial. People v. Mullins, 104 P.3d 299 (Colo. App. 2004). To allege insufficiency of evidence as to indispensable element of a crime is to assert plain error. People v. Harris, 633 P.2d 1095 (Colo. App. 1981). Trial court's failure to submit instruction to defense counsel for review prior to reading the instruction to the jury is not plain error. People v. Martin, 670 P.2d 22 (Colo. App. 1983). Prosecutor's argument did not result in plain error. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003); People v. Kendall, 174 P.3d 791 (Colo. App. 2007). "Plain error" rule must be read in harmony with Crim. P. 30, which provides that no party may assign as error the giving of an instruction to which he has not objected before the instructions are submitted to the jury. People v. Green, 178 Colo. 77, 495 P.2d 549 (1972); People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972); People v. Aragon, 186 Colo. 91, 525 P.2d 1134 (1974). Unless manifest prejudice or plain error. Where defendant does not object to the instruction given or tender any alternate instruction which might more adequately set forth the law, an assignment of error is not valid unless there is manifest prejudice amounting to plain error. People v. Bercillio, 179 Colo. 383, 500 P.2d 975 (1972). Because a defendant must make all objections he has to instructions prior to their submission to the jury, where the defendant failed to make any such objection prior to submission of the instructions, absent plain error, the court would not consider the defendant's arguments on review. People v. Tilley, 184 Colo. 424, 520 P.2d 1046 (1974). Where no specific objection was made prior to submission of instructions to the jury as required by Crim. P. 30, absent plain error, reviewing court will not consider these arguments on appeal. People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974). Where defendant only made a general objection to jury instructions, and failed to make a timely specific objection, supreme court on appeal will not consider argument by defendant that instructions were in error absent plain error. People v. O'Donnell, 184 Colo. 104, 518 P.2d 945 (1974). No prejudicial error if jury is adequately informed. Where the defendant objected to various instructions given to the jury by the trial court, but under the instructions as a whole the jury is adequately informed as to the law, there is no prejudicial error. People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973). Where instruction on trespass was given to jury in statutory language and instructions were, as a whole, adequate to inform jury of the law on these issues and defendant did not request or tender proposed instruction to define term "unlawfully", failure to instruct on that term did not rise to the level of plain error. People v. Wortham, 690 P.2d 876 (Colo. App. 1984). Prosecutor's comment that evidence of prior similar transactions between the sexual assault victim and the defendant, her father, explained the victim's response to two assaults and her failure to report them earlier is not improper considering the testimony of the victim and the limiting instructions given by the trial court regarding the proper use of the similar transaction evidence. People v. Fell, 832 P.2d 1015 (Colo. App. 1991). Doctrine of invited error precludes defendant from challenging jury instruction as prejudicial error since defendant approved and submitted comparable instruction to court. People v. Driggers, 812 P.2d 702 (Colo. App. 1991). Although failure to instruct on essential elements constitutes plain error. The trial court has a duty to properly instruct the jury on every issue presented, and the failure to do so with respect to the essential elements of the crime charged constitutes plain error. People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972); People v. Hardin, 199 Colo. 229, 607 P.2d 1291 (1980); People v. Mattas, 645 P.2d 254 (Colo. 1982); People v. Williams, 707 P.2d 1023 (Colo. App. 1985). As does erroneous instruction. Where a given instruction permits the jury to convict without proof of essential element of the crime, there is plain error, and reversal is required. People v. Butcher, 180 Colo. 429, 506 P.2d 362 (1973). The giving of an instruction which allows the jury to find the defendant guilty upon a lesser degree of culpability than that required by the statute constitutes plain error. People v. Etchells, 646 P.2d 950 (Colo. App. 1982). Or inadequate instruction. Where a general instruction on specific intent does not particularly direct the jury's attention to defendant's theory that he could not have possessed the requisite specific intent, it is the duty of the court either to correct the tendered instruction or to give the substance of it in an instruction drafted by the court, and a court's refusal to give such an adequate instruction is error. Nora v. People, 176 Colo. 454, 491 P.2d 62 (1971). Under some circumstances, a court's failure to instruct sua sponte on intoxication may result in reversible error. People v. Mattas, 645 P.2d 254 (Colo. 1982). But not failure to instruct on lesser included offense. Failure of the court to instruct on a lesser included offense does not affect the substantial rights of defendant and is therefore not cognizable as plain error. People v. Chavez, 179 Colo. 316, 500 P.2d 365 (1972); People v. Sharpe, 183 Colo. 64, 514 P.2d 1138 (1973); People v. Brown, 677 P.2d 406 (Colo. App. 1983). Failure to instruct on element of "knowingly". The trial court's failure to include the element of "knowingly" in a second-degree kidnapping instruction is plain error. People v. Clark, 662 P.2d 1100 (Colo. App. 1982). It was not plain error for trial court to submit to the jury the "result" factor and omit the "conduct-and-circumstance" factor in the definitional instruction of "knowingly" in a first degree criminal trespass case because the instruction could neither mislead nor confuse the jury. People v. Wortham, 690 P.2d 876 (Colo. App. 1984). Failure to give definition of "attempt". The trial court's failure to include the definition of attempt found in the criminal attempt statute in instructions for the pertinent provisions of the second degree assault statute was not plain error. People v. Weller, 679 P.2d 1077 (Colo. 1984). Jury instruction on aggravated robbery did not constitute plain error as defendant was given notice by language in the information that he was being charged with both methods of committing crime even though instruction differed from language in the information. People v. Driggers, 812 P.2d 702 (Colo. App. 1991). Failure to give definition of "without lawful justification". Where this phrase appeared in second-degree kidnapping statute without further definition, and defendant made no claim of legal authority to transport nonconsenting victim, trial court's instruction to jury to give phrase "the common meaning that the words imply" was not plain error. People v. Schuett, 833 P.2d 44 (Colo. 1992). Trial court's failure to ascertain reasons for defendant's waiver of right to testify not plain error where defendant did not raise issue in his motion for a new trial and did not allege or present evidence that the waiver was not knowing, intelligent, or voluntary. People v. Wortham, 690 P.2d 876 (Colo. App. 1984). Failure to issue a contemporaneous limiting instruction. Failure of the court to issue a limiting instruction contemporaneously with the history of arrest testimony, which testimony related to a crime separate and unrelated to the crime for which defendant was being tried, did not constitute plain error. People v. White, 680 P.2d 1318 (Colo. App. 1984). Failure to instruct the jury on gender bias was not a "structural defect" or plain error requiring reversal of third degree sexual assault conviction where gender bias was not raised during the trial and the jury was instructed sympathy or prejudice should not influence its decision. People v. Johnson, 870 P.2d 571 (Colo. App. 1993). Although the general rule is that there may be no appellate review of issues not raised in a new trial motion, there is an exception for claims that the trial court committed plain error. People v. Ullerich, 680 P.2d 1306 (Colo. App. 1983). Where court presented the jury with irreconcilable statements about the requisite culpability for a securities fraud violation, a conviction cannot be permitted to rest on such an equivocal direction to the jury on one of the basic elements of the crime. People v. Riley, 708 P.2d 1359 (Colo. 1985). The cumulative effect of a proper jury instruction with improper jury instructions that contained erroneous statements of law which relegated to the jury the function of determining whether an affirmative defense was available in a case and which had the effect of relieving the prosecution of its burden of proof in regard to the affirmative defense was insufficient to dispel the potential harm created by the erroneous jury instructions and was, therefore, plain error. Lybarger v. People, 807 P.2d 570 (Colo. 1991). Joint operation instruction does not remove case from plain error rule. When the jury was told that specific intent applies to every element of aggravated robbery, that specific intent applies only to the intention to kill, maim, or wound, and that "knowingly" applies if the intent was to put the victim in fear of death or bodily injury, jury could not be expected to know what, if any, culpable mental state applied. People v. Pickering, 725 P.2d 5 (Colo. App. 1985). Error of constitutional dimension. Ordinarily, plain error requires reversal only if there is a reasonable possibility that it contributed to the defendant's conviction. However, if the asserted error is of constitutional dimension, reversal is required unless the court is convinced that the error was harmless beyond a reasonable doubt. Graham v. People, 705 P.2d 505 (Colo. 1985). An error in the admission of evidence, even if of constitutional dimension, does not require reversal of a criminal conviction if the error was harmless beyond a reasonable doubt. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003). But admission of uncounseled statements by defendant may not be plain error. Fact that defendant's attorney was not notified that questioning of his client was going to take place did not make the admission of statements made by defendant during such questioning plain error since the record did not show that the interrogator knew that the defendant had an attorney, and the defendant took the stand and repeated his statements. People v. Pool, 185 Colo. 131, 522 P.2d 102 (1974). Trial court's actions cannot be considered as harmless error where the court's removal of the determination of the authority of a defendant charged with theft to borrow the victim's money from the province of the jury violated the defendant's sixth amendment right to a jury trial. People v. Gracey, 940 P.2d 1050 (Colo. App. 1996). In determining whether prosecutorial impropriety mandates a new trial, appellate courts are obliged to evaluate the severity and frequency of the misconduct, any curative measures taken to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to defendant's conviction. People v. Jones, 832 P.2d 1036 (Colo. App. 1991). Reversible error exists if there are grounds for believing that the jury was substantially prejudiced by improper conduct. Where the prosecutor's ill-advised and improper comments were so numerous and highly prejudicial, the defendant was deprived of a fair trial requiring that the judgment of conviction be reversed. People v. Jones, 832 P.2d 1036 (Colo. App. 1991). Prosecution's comments during closing argument did not rise to the level of reversible error where comments were small part of lengthy closing; prosecutor fairly summarized the evidence; prosecutor emphasized the jury's prerogative to make an independent determination of the facts; and trial court sustained defense counsel's objections and prosecutor withdrew her comments. People v. Griffith, 58 P.3d 1111 (Colo. App. 2002). Prosecutor's use of Burke quotation was an improper attempt to persuade jurors; however, the error was harmless as it was an isolated incident in an otherwise proper closing argument in which the prosecutor repeatedly urged the jury to apply the rules of law to the evidence adduced at trial. People v. Clemons, 89 P.3d 479 (Colo. App. 2003). The determination of whether a prosecutor's statements constitute inappropriate prosecutorial argument is generally a matter for the exercise of trial court discretion; however, if an appellate court concludes that prejudice created by a prosecutor's conduct was so great as to result in a miscarriage of justice, a new trial may be granted notwithstanding the trial court's failure to impose such sanction. Harris v. People, 888 P.2d 259 (Colo. 1995). A new trial is the appropriate remedy for the deprivation of the defendant's right to a fair trial where, in view of the prosecutor's repeated remarks, the temporal context of the trial, and the critical role of witness credibility in the case, there was substantial likelihood that the prosecutor's improper comments impermissibly prejudiced the defendant's right to have his guilt determined by an impartial jury applying applicable legal standards to facts found on an objective evaluation of the evidence. Harris v. People, 888 P.2d 259 (Colo. 1995). The sufficiency of evidence presented at trial will be considered on appeal when evaluating claims of prosecutorial misconduct. The conclusion that the prosecutor's comments, repeated over the course of the entire closing argument, were substantially prejudicial was compelled when the conflicting and inconclusive nature of the evidence presented at trial was taken into consideration. Harris v. People, 888 P.2d 259 (Colo. 1995). In determining whether prosecutor's improper statements so prejudiced the jury as to affect the fundamental fairness of the trial, the court shall consider the language used, the context in which the statements were made, and the strength of the evidence supporting the conviction. Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005); Crider v. People, 186 P.3d 39 (Colo. 2008). In light of evidence demonstrating defendant's guilt, prosecutor's conduct was not flagrant or tremendously improper. Although prosecutor made improper statements implying that defendant had a bad character, evidence of the defendant's guilt was strong, defense counsel made no contemporaneous objections to the statements, and the statements were infrequent and a small part of prosecutor's argument. Therefore, the statements did not so undermine the trial's fundamental fairness as to cast doubt on the reliability of the judgment of conviction. People v. Cordova, __ P.3d __ (Colo. App. 2011). It is prosecutorial misconduct for an attorney to characterize a witness's testimony or his character for truthfulness with any form of the word "lie". A violation of this prohibition, although sanctionable in other ways, does not warrant reversal if it was harmless. Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005); Crider v. People, 186 P.3d 39 (Colo. 2008). Review of jury instruction for constitutional error where such instruction was submitted by the defendant is barred by application of invited error doctrine. People v. Zapata, 779 P.2d 1307 (Colo. 1989). Failure to instruct jury as to presumption of innocence is plain error. People v. Aragon, 665 P.2d 137 (Colo. App. 1982). Instructions held not to constitute "plain error". People v. Otwell, 179 Colo. 119, 498 P.2d 956 (1972); People v. Majors, 179 Colo. 204, 499 P.2d 1200 (1972); People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); People v. Eades, 187 Colo. 74, 528 P.2d 382 (1974). Instruction to the jury on the credibility of the witnesses, where the words "including the defendant" were crossed out but were not totally obliterated and could be deciphered by the jury, did not constitute plain error. People v. Miller, 37 Colo. App. 294, 549 P.2d 1092 (1976), aff'd, 193 Colo. 415, 566 P.2d 1059 (1977). Where the defendant is charged with aggravated robbery and conspiracy to commit aggravated robbery, and is not entitled to an instruction on theft, an error in a theft instruction is harmless. Graham v. People, 199 Colo. 439, 610 P.2d 494 (1980). Trial court's failure to instruct the jury that voluntary intoxication may apply to sexual assault on a child does not constitute plain error for there is doubt whether the issue is yet settled. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005). Challenges to interpreter must be made. When an interpreter is necessary for the court to translate testimony and the defense makes no challenge to the interpreter's qualifications or competency, the doctrine of plain error may not be applied in motion for new trial. People v. Bercillio, 179 Colo. 383, 500 P.2d 975 (1972). As must challenge of medical expert, unless plain error. Where defendant failed to interpose a timely objection to the trial court's qualification of a prosecution witness as a medical expert, any error in this regard did not rise to the level of plain error and thus was not recognized on appeal. People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976). As well as objections to admonishment of defense counsel. Where the trial court recesses in the middle of the cross-examination and admonishes defense counsel in the presence of the jury to the effect that counsel should change his attitude, and defendant's counsel does not object to the recess or the admonishment, it is not of a level to be "plain error". People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973). Determination of whether the misconduct at trial was plain error turns not on the nature of the misconduct but on the impact of the misconduct upon the result. People v. Constant, 44 Colo. App. 544, 623 P.2d 63 (1980), rev'd on other grounds, 645 P.2d 843 (Colo. 1982). Prosecutorial misconduct provides a basis for reversal because of plain error only where there is a substantial likelihood that it affected the verdict or deprived a defendant of a fair and impartial trial. People v. Constant, 645 P.2d 843 (Colo. 1982). Prosecutor's statement in closing argument held not to be plain error as comment in context was not calculated or intended to direct attention to defendant's failure to testify in his own behalf. People v. Wieghard, 727 P.2d 383 (Colo. App. 1986). Prosecutor's remark not plain error where remark may have been invited by defense counsel, remark was tangential and could not have prejudiced defendant, and there was overwhelming evidence of defendant's guilt. People v. Joyce, 68 P.3d 521 (Colo. App. 2002). Although prosecutor's remark during summation that the defendant had lied during his testimony and allusions to defendant's friends' cocaine habit was inappropriate, it did not constitute plain error. The improper comments were isolated ones included in a lengthy summation and could not have affected the verdict. People v. Herr, 868 P.2d 1121 (Colo. App. 1993). The scope of final arguments rests in the sound discretion of the trial court and its ruling will not be disturbed on appeal in the absence of gross abuse of discretion resulting in prejudice and a denial of justice. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991). Prosecutorial misconduct must be flagrantly improper to be classified as plain error. Prosecutor's comment that the evidence of similar transactions between the victim and her father explained the victim's response to the assaults and her failure to report them earlier was not error considering the testimony of the victim and the limiting instructions given by the trial court regarding the proper use of similar transactions evidence. People v. Fell, 832 P.2d 1015 (Colo. App. 1991). Prosecutor's characterization of defendant's statement held "plain error". The prosecutor's characterization in his summation of defendant's written pretrial statement as "riddled with lies" constituted plain error affecting defendant's substantial rights. People v. Trujillo, 624 P.2d 924 (Colo. App. 1980). As is exposure of handcuffed defendant. A denial of a fair trial occurs where a defendant appears before a jury in handcuffs when the exposure was unnecessary and prejudicial. People v. Rael, 199 Colo. 201, 612 P.2d 1095 (1980). As is improper admission of evidence of other offenses. Admission into evidence of offenses not alleged as basis of habitual criminality during the second phase of a bifurcated trial constitutes reversible error. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980). The giving of a "time-fuse" instruction (which grants the jury a time limit to finish its deliberations, at the end of which the jury will be dismissed) constitutes plain error and requires reversal. Allen v. People, 660 P.2d 896 (Colo. 1983). Failure to provide transcript of prior mistrial is of such magnitude that it requires a new trial. People v. St. John, 668 P.2d 988 (Colo. App. 1983). Where enhancement of sentence for crime of violence is plain error. Where a defendant is convicted of first-degree murder, and the mittimus reads that he was found to have committed a "crime of violence", but the jury was not instructed on the elements of crime of violence nor given a separate verdict form or interrogatory as required, enhancement of sentence for having committed a crime of violence would be plain error. The cause must be remanded for correction of the mittimus to show conviction of first-degree murder only, and for imposition of sentence on that crime only. People v. Thrower, 670 P.2d 1251 (Colo. App. 1983). Fact that testimony of hospital employee regarding defendant's statements made while confined for sanity examination used to rebut defendant's self-defense theory was given in prosecution's case-in-chief rather than as rebuttal testimony did not constitute plain error. People v. Kruse, 839 P.2d 1 (Colo. 1992). Because the trial record contained significant evidence of defendant's guilt, any error by the trial court in admitting certain testimony was not plain error. People v. Mapps, 231 P.3d 5 (Colo. App. 2009). Testimony by the victim and police officer describing the robber does not constitute plain error. The evidence corroborated other properly admitted evidence and although arguably cumulative, did not have a tendency to confuse or inflame the jury's passions or undermine the fairness of the trial. People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993). Allowing a jury unsupervised access to videotape and transcript of a drug transaction between the defendant and a police informant was not plain error. People v. Aponte, 867 P.2d 183 (Colo. App. 1993). Prejudicial error found. People v. Snook, 729 P.2d 1026 (Colo. App. 1986), aff'd, 745 P.2d 647 (Colo. 1987). Allowing defendant to stand trial in orange jump suit, which defendant described as prison garb, was not plain error. People v. Green, 759 P.2d 814 (Colo. App. 1988). Declaration of mistrial to correct error at trial. Zamora v. People, 175 Colo. 340, 487 P.2d 1116 (1971); Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972); People v. Medina, 185 Colo. 101, 521 P.2d 1257 (1974); People v. Lankford, 185 Colo. 445, 524 P.2d 1382 (1974); People v. Goff, 187 Colo. 103, 530 P.2d 514 (1974); People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974); People v. Becker, 187 Colo. 344, 531 P.2d 386 (1975).