Peo v. Faudoa

19CA0504 Peo v Faudoa 12-16-2021 COLORADO COURT OF APPEALS Court of Appeals No. 19CA0504 Weld County District Court No. 18CR958 Honorable Timothy G. Kerns, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Gabriel Faudoa, Defendant-Appellant. JUDGMENT AFFIRMED Division V Opinion by JUDGE GOMEZ Richman and Harris, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 16, 2021 Philip J. Weiser, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Elyse M. Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant 1 ¶ 1 Defendant, Gabriel Faudoa, appeal s the judgment of conviction entered after a jury fou nd him guilty of assault. We affirm. I. Background ¶ 2 Faudoa and his sister (the victim) lived in separate camper trailers in their mother’s backyard. ¶ 3 One night, the two siblings got int o an argument inside the victim’s trailer and continued arg uing outside the trailer with their mother present. At some point, t he victim told Faudoa he was “nothing but a low life piece of shit .” That angered Faudoa, as thei r mother reported based on the rea ction in his face and voice. Suddenly, the siblings were hitting each other. 1 Faudoa put his hands on the victim’s throat as the victim screamed. 2 Eventually, the mother intervened, and Faudo a left and went into his trailer. ¶ 4 The victim went into her mother’s home, called 911, and told the dispatcher that her “brother j ust choked [her] out and scratched 1 At trial, the siblings’ mother said she couldn’t tell which of them had started the hitting. However, other evidence at trial indicated she had previously said that Fau doa started it. 2 The siblings’ mother’s statements were also inconsistent as to how long Faudoa held the victim’s thro at. She told investigating officers it was one to two minutes but testif ied at trial it was only seconds. 2 [her].” The call disconnected, and the victim immediately called back and provided further details. ¶ 5 Responding officers testified that t he victim was clearly upset: “her emotions were elevated” and s he appeared to have been crying, as “[h]er face was red [and] her eye s were watery, bloodshot, [and] puffy.” The officers noted her diffic ulty speaking. For instance, they said “her voice was hoarse,” “ almost like she had laryngitis, where her voice was going in and out”; “her voice became very scratch[y] and high-pitched” and ev entually “[s]he was whispering” and could hardly be heard at all; and she was “coughing [and] wheezing.” They also testified to seeing red marks on her throat and on the side of her face. ¶ 6 The victim’s sister-in-law, whom the victim called shortly after calling the police, similarly reporte d that “[s]he was crying hysterically,” “[s]he was really ups et,” and “[h]er voice was hoarse, kind of like she had a cold, and lik e hard for her to talk . . . hard to push out the words, and the volume was like raspy.” ¶ 7 Photos of the victim revealed red m arks on her neck and an abrasion on her cheek. 3 ¶ 8 Faudoa was arrested and charged with second degree assault. He was also later charged with w itness tampering for statements he made to his mother while he was i n jail. ¶ 9 The victim didn’t testify at trial. The jury heard the evidence recounted above, as well as testim ony from an expert on strangulation. At the end of trial, the jury found Faudoa guilty of the assault charge but not guilty of the witness tampering charge. Faudoa now appeals. II. Analysis ¶ 10 Faudoa raises two contentions on appeal: (1) that the trial court improperly admitted portions of the victim’s 911 calls; and (2) that the prosecutor committed m isconduct during the trial. W e address each contention in turn. A. 911 Calls ¶ 11 Faudoa contends that the trial cour t erred in admitting portions of the victim’s 911 calls b ecause they (1) violated his right to confront the witnesses against him; (2) contained inadmissible hearsay; and (3) were inadmissible under CRE 403. We disagree. 4 1. Additional Facts ¶ 12 Before the trial, the prosecution filed a motion indicating that the victim was unavailable to testif y at trial, as she may have moved out of state and couldn’t be serve d with a subpoena, and asking the court to admit her statements from the two 911 calls. Defense counsel objected, arguing the stat ements were inadmissible under the Confrontation Clause, as hears ay, and under CRE 403. ¶ 13 The trial court addressed the issue at a pretrial hearing. The court ordered that the first call — which was about twenty seconds long and included only two statem ents by the victim, that “my brother just choked me out and sc ratched me” and her address — was admissible in its entirety beca use “the entirety of that 911 call was made for purposes of obtaining a police response.” ¶ 14 The court then analyzed each separate statement by the victim in the second call — which immedi ately followed the first and was over five minutes long (unredacte d). The court determined that some of the victim’s statements were a dmissible to describe the scene and her need for a police response, but others were not. In the end, the court admitted the foll owing statements: 5  “My brother just choked me out u ntil I couldn’t breathe and smacked me across the face.”  Faudoa was at that time in his t railer.  She didn’t need medical attention but needed the police there “as soon as possible.”  She was at that time in the house with her mother.  “Look at my neck” (apparently sai d to her mother, not to the dispatcher). 3 ¶ 15 The court excluded several other st atements by the victim, including, among others, statemen ts that Faudoa was drunk, that she hadn’t done anything to provo ke him, and that he had hit her across the face and choked her un til she couldn’t breathe. ¶ 16 The calls, redacted to exclude the p ortions of the second call that were held inadmissible, were played to the jury at trial. 3 The court also allowed the admissi on of statements indicating that no weapons were present and that officers had just arrived, but the redacted recording admitted at tria l didn’t include those statements. 6 2. Confrontation Clause ¶ 17 Faudoa argues that the admission of the victim’s statements from the 911 calls violated his righ ts under the Confrontation Clause. We disagree. ¶ 18 Defendants have a right under the Confrontation Clause in both the United States and the C olorado Constitutions to confront the witnesses against them. U .S. Const. amend. VI; Colo. Const. art. II, § 16; People v. Hernandez , 2021 CO 45 , ¶ 19. These constitutional provisions preclu de the introduction of testimonial hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. People v. Garcia , 2021 CO 7, ¶ 8 ; see also id. at ¶ 7 n.2 (the protections are equivalent and the analysis is the same under the federal and the state constitutions) . But nontestimonial hearsay isn’t similarly excluded and is only subject to the rules of evidence. People v. Draper , 2021 COA 120, ¶ 77 . ¶ 19 A statement is testimonial if, view ed objectively and in light of all the circumstances, its primary pu rpose at the time it was made was to be a substitute for trial testi mony. Garcia , ¶ 9; Draper , ¶ 78. Thus, for instance, when the circumst ances of an interrogation 7 objectively indicate that its prima ry purpose is “to elicit statements that establish or prove past events , or to elicit statements that are potentially relevant to a later crimi nal prosecution, the statements elicited are testimonial.” Raile v. P eople , 148 P.3d 126, 130 (Colo. 2006). By contrast, “statements made during an ongoing emergency to assist police officers i n their efforts to assess the present situation are nontestimoni al.” Id. ¶ 20 Likewise, “[a] 911 call, . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ som e past fact, but to describe current circumstances requiring p olice assistance” and thus is ordinarily nontestimonial. Da vis v. Washington , 547 U.S. 813, 827 (2006) (alteration in original) (citati on omitted). Ultimately, whether statements during a 911 call are t estimonial depends on whether they were made for the purpose of getting help or to provide information for investigative purposes. Id. at 827-28 (a statement during a 911 call identifying the defendant as the caller’s assailant was not testimonial because the cal ler was speaking about events as they were happening rather tha n describing past events, the caller was facing an ongoing eme rgency, the statements were 8 necessary to resolve the present em ergency rather than just to learn what had happened in the past, an d the interview was informal, with the caller’s answers “frantic” a nd “in an environment that was not tranquil”); People v. Cevallos-A costa , 140 P.3d 116, 128-29 (Colo. App. 2005) (a statement duri ng a 911 call identifying the defendant as the perpetrator of a crime was nontestimonial because “the caller was seeking immediate hel p for the victim; the circumstances were exigent; and t he statement . . . was neither elicited by nor made to anybody wit h authority”). ¶ 21 We review de novo whether the a dmission of evidence violated a defendant’s confrontation right. Garcia , ¶ 6. Similarly, we review de novo the legal question whethe r a statement is testimonial. People v. Trevizo , 181 P.3d 375 , 3 78 (Colo. App. 2007). ¶ 22 Faudoa argues that the admitted st atements were testimonial, and thus were improperly admitted , because they “describe[] the events as having taken place in the past,” using the past tense, rather than what was currently ha ppening; there was “no ongoing emergency or immediate danger”; and the victim “insiste[d] that she did not need medical attention but wanted the police to respond,” suggesting the focus was on later crimin al prosecution. 9 ¶ 23 We are not persuaded. Instead, we agree with the trial court’s assessment that the statements we re not testimonial. Viewing the statements objectively, their primar y purpose was to elicit a police response to what the victim percei ved as an ongoing emergency. Despite Faudoa’s description of t he emergency as having passed by then, the victim may have felt Fau doa was an ongoing threat since, according to her statements, the assa ult had “just” occurred and he was still in his trailer on the prope rty. And although the victim didn’t believe she needed medical c are, her demeanor on the calls was “frantic,” much like the caller i n Davis , 547 U.S. at 827 . ¶ 24 We conclude, then, that each of the admitted statements was nontestimonial. The victim’s state ments at the beginning of both calls saying her brother had “choked [her] out” and “scratched” or “smacked” her were, like most initial statements in a 911 call, made not to establish past facts but “to describe current circumstances requiring police assistance.” I d. The victim may have used the past tense, as she was speaking right af ter rather than during the choking, but that doesn’t negate the fact that she was explaining to the dispatcher why she needed police assistance. The statements about where Faudoa was, where t he victim was, who she was with, 10 and her need for police but not me dical assistance described what was then occurring and could ena ble authorities to adequately respond to the situation. And the comment to “[l]ook at my neck” was apparently made to the victim ’s mother, not to the dispatcher or for the purpose of establishing a fact at trial. See Ohio v. Clark , 576 U.S. 237, 249 (2015) (“Statement s made to someone who is not principally charged with uncoverin g and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforceme nt officers.”). 3. Hearsay ¶ 25 Faudoa next argues that the vict im’s statements in the 911 calls were hearsay statements that don’t fall under the excited utterance exception. Again, we disagree. ¶ 26 Hearsay statements, which are stat ements made by someone other than the declarant while test ifying at trial that are offered to prove the truth of the matter asse rted, are generally inadmissible unless they fall within an excepti on. CRE 801(c), CRE 802. ¶ 27 One such exception applies to an excited utterance, which is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or 11 condition.” CRE 803(2). To fall w ithin this exception, a statement must (1) relate to an event that is sufficiently startling to render inoperative normal reflective thoug ht processes of the observer; (2) be a spontaneous reaction to th e occurrence; and (3) be supported by evidence that the declarant observed the event. People v. Vanderpauye , 2021 COA 121, ¶ 31 . ¶ 28 In determining whether a statem ent was spontaneous, courts may consider such factors as the lapse of time after the startling event, whether the statement was made in response to an inquiry, whether it was accompanied by o utward signs of excitement or emotional distress, and the choic e of words used. People v. Abdulla , 2020 COA 109M , ¶ 65. Statement s made in response to questioning can be excited utteranc es. Id. at ¶ 72. ¶ 29 A trial court is best positioned to d etermine whether a statement was an excited utterance . Id. at ¶ 65. Thus, we review its decision for an abuse of disc retion. Vanderpauye , ¶ 16. A cou rt abuses its discretion when its deci sion is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. Id. ¶ 30 While defense counsel raised this objection in her pretrial filing, the court didn’t rule on it at the hearing. And when counsel 12 objected to admission of the 911 c alls at trial, she raised only other issues but not hearsay. Nonethel ess, we will treat this objection a s preserved and assume the trial court implicitly overruled the objection. See People v. Butler , 20 17 COA 117 , ¶ 47. ¶ 31 We perceive no abuse of discretion in allowing the statements into evidence as excited utterance s. It’s clear from both calls that the victim was reacting to a startli ng event she had experienced; that she was crying, breathing hea vily, and still under the stress of that event; and that her words w ere more of a spontaneous reaction to the event than the operation of a normal reflective thought process. See Vanderpauye , ¶ 31; Abdulla , ¶ 65. ¶ 32 We reject Faudoa’s arguments to th e contrary. Although the prosecution didn’t establish exactl y how much time passed between the assault and the victim’s 911 c alls, other evidence supported that the calls were made very soon after the assault and while the victim was still acting under the stress of the assault. For instance, the victim said her brother had “ju st” choked her, and she was crying, breathing heavily, and spe aking frantically during the calls. See Compan v. People , 121 P.3d 87 6, 883 (Colo. 2005) (evidence that the victim was upset, crying, and talking excitedly during two 13 calls to a friend following an assaul t indicated that the calls were made “in near temporal proximity to the startling event”), overruled on other grounds by Nicholls v. Peo ple , 2017 CO 71 . And the responding officers and sister-in-la w who spoke to the victim shortly after the calls reported that “her emotions were elevated,” “[s]he was really upset,” and “[s]he was crying hysterically.” See People v. Martinez , 18 P.3d 831, 835 (Colo. App. 2000) (descriptions of the victim as being distressed, e motional, and upset supported findings that her assault was startli ng and that her statements were made under the stress caused by the assault). ¶ 33 Nor is application of the exception undermined by the fact that the victim had moved a short dist ance away from the location of the assault before calling 911. It is enough that the evidence from the calls and from other witnesses s uggests she was still under the stress of the assault. See Compa n , 121 P.3d at 883 (evidence of the victim’s emotional distress support ed application of the exception to statements she made to a friend aft er she had removed herself from the immediate vicinity of an assaul t); People v. King , 121 P.3d 234, 238 (Colo. App. 2005) (evidence of the victim’s emotional distress supported application of the excep tion to statements she made an 14 unknown period of time after she was assaulted and stabbed and after she had reached a place of sa fety). 4. CRE 403 ¶ 34 Faudoa also argues that the victim’s statements in the 911 calls should’ve been excluded un der CRE 403 because they were “emotionally charged” yet had mini mal probative value because they didn’t provide context for the incid ent. We disagree. ¶ 35 Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” CRE 403. “Evidence is unfairly prejudici al if it has an ‘undue tendency to suggest a decision on an impro per basis . . . such as sympathy, hatred, contempt, retribution, or h orror.’” People v. Clark , 2015 COA 44, ¶ 18 (alteration in original ) (quoting People v. James , 117 P.3d 91, 93-94 (Colo. App. 2004)). In reviewing the court’s ruling, we assume the maximum probativ e value a reasonable fact finder might give the evidence and the mi nimum unfair prejudice to be reasonably expected. Id. ¶ 36 The trial court rejected defense co unsel’s CRE 403 objection at trial, finding that the “probative val ue [of the evidence] is not substantially outweighed by any asserted prejudice.” We review 15 this ruling for an abuse of discreti on. See Vanderpauye , ¶ 16. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. Id. ¶ 37 We discern no abuse of discretion in admitting the statements. The statements were probative in s etting the scene of the crime and establishing what had happened. I n particular, the victim’s statement that her brother had “ch oked [her] out until [she] couldn’t breathe” made it more like ly than not that Faudoa had applied sufficient pressure to im pede or restrict the victim’s breathing — a fact that was hot ly contested at trial and was relevant to establishing one of the elements of second degree assault. See § 18-3-203(1)(i), C.R. S. 2021. ¶ 38 The statements also were not ove rly emotional or otherwise unfairly prejudicial. And to the ext ent that the statements that were admitted didn’t provide furth er context, it was because Faudoa had successfully prevented the admissi on of other statements during the call about what may ha ve led to the incident. B. Prosecutorial Misconduct ¶ 39 Faudoa argues that the prosecutor committed misconduct by (1) making statements regarding t he victim’s absence at trial that 16 suggested the case had been presc reened, presented the prosecutor’s personal opinion of F audoa’s guilt, and implied personal knowledge of evidence n ot presented to the jury; and (2) inflaming the jury’s passion. We disagree. ¶ 40 We apply a two-step analysis in eva luating claims of prosecutorial misconduct. Peop le v. Curtis , 2021 COA 103, ¶ 49 . First, we determine whether the pr osecutor’s statements were improper based on the totality of the circumstances. Id. Then, if the statements were improper, we dete rmine whether the conduct warrants reversal under the applic able standard — harmless error if the defendant objected in the t rial court (and the error is not of a constitutional dimension) and plai n error if the defendant did not. Id. at ¶¶ 49-50; People v. Sauser , 2020 COA 174, ¶ 80 . ¶ 41 Faudoa preserved some of his objec tions but failed to preserve others. For those that are preserv ed, reversal is required under the harmless error standard only if an error substantially influenced the verdict or affected the fairness of the trial. Sauser , ¶ 80. For those that are not preserved, revers al is required under the plain error standard only if an error was obvious and was substantial, meaning that it so undermined the fundamental fairness of the trial 17 as to cast serious doubt on the reli ability of the judgment of conviction. People v. Maloy , 2020 CO A 71, ¶ 11. ¶ 42 The trial court has discretion to det ermine whether a prosecutor has committed miscon duct. People v. Snider , 2021 COA 19, ¶ 31. Accordingly, we won’t disturb the court’s rulings on claims of misconduct absent a gro ss abuse of discretion resulting in prejudice and a denial of justice. Sauser , ¶ 78. 1. Statements Related to the Victim’ s Absence ¶ 43 Faudoa argues that in an effort t o explain why the victim wasn’t appearing at trial and why the prosecution was proceeding in her absence, the prosecutor ma de various statements improperly suggesting that the case had been prescreened, that she personally believed Faudoa was guilty, and that she was aware of evidence not presented to the jury. We are not pe rsuaded. ¶ 44 Faudoa challenges statements ma de at three separate times at trial. First, he points to the prosec utor’s statements during voir dire. At one point, the prosecut or said, [Y]ou will not hear from the victim in this case. She will not come in, testify against her brother. I wanted to talk about whet her or not the District Attorney’s office and la w enforcement should continue in cases -- 18 ¶ 45 Defense counsel objected that thi s was a “stake-out” question, and the court overruled the objecti on. The prosecutor went on to ask the prospective jurors to consi der why someone might not want to testify against a family membe r and whether they would be concerned about the victim’s abse nce at trial. She then stated, In a scenario where a person feel s uncomfortable, feels pressure from her family, feels like maybe it would be worse i f she came to court, is that something you can imagine as a reason why someone would not want to come to court and testify? ¶ 46 Defense counsel objected. The court sustained the objection; struck that statement; and instr ucted the jury that it wasn’t to speculate as to why the prosecutio n “may or may not present certain evidence” but was to “weigh the evidence that is in the record” and, as appropriate, “consi der the lack of evidence.” ¶ 47 Faudoa next points to the following remarks by the prosecutor during opening statement: The first thing you’re going to hear about is the fact that [the victim] will not be t estifying. You already heard about that. How a m I going to prove this case without [the victim] ? You are not going to hear from her on the s tand, but you are going to hear from her withi n the rules of evidence. I am going to provide you with everything I can, all the statement s that I can. 19 ¶ 48 Defense counsel objected on the b asis that the prosecutor was testifying. The court overruled the objection. ¶ 49 Finally, Faudoa points to these sta tements in the prosecutor’s closing argument: PROSECUTOR: [T]his is a difficult c ase. It’s challenging. I made no surprise, no mystery about it when I talked to you durin g jury selection. But every single one of you told me that if the evidence was there, law enforcement should investigate, the District Att orney should pursue. DEFENSE COUNSEL: Objection. Using office status to convey credibility based on charges. THE COURT: I’m going to sustain. This is as to evidence, not charging decision. PROSECUTOR: All of you said if t he evidence was there, you thought it was okay , and, in fact, you thought it was right f or charges to be brought -- DEFENSE COUNSEL: Objection. PROSECUTION: -- if that was appropriate. THE COURT: Overruled. ¶ 50 Prosecutors have wide latitude to make arguments based on the facts in evidence and reasonab le inferences that may be drawn from those facts. People v. Stroc k , 252 P.3d 1148 , 1153 (Colo. App. 2010). Nonetheless, prosecutors m ust not use improper methods 20 calculated to produce a wrongful convict ion. People v. Fortson , 2018 COA 46M , ¶ 13. Thus, for ins tance, they may not refer to a screening process that a case was sufficient to pass through, Domingo-Gomez v. People , 125 P.3d 1043, 1052 (Colo. 2005); express a personal opinion as to t he defendant’s guilt, People v. Rhea , 2014 COA 60, ¶ 75 ; or sugg est they have personal knowledge of evidence unknown to the jury, F ortson , ¶ 48. ¶ 51 The statements challenged in t his case did not run afoul of these rules. First, the prosecutor d idn’t suggest the case had been screened or even allude to a screen ing process. Cf. Domingo-Gomez , 125 P.3d at 1052 (prosecutor exp ressly referenced “a screening process for charging cases,” which the prosecutor said “takes the type of evidence that we have here” ). What she referred to instead was a choice to continue prosecuti ng the case without assistance from the victim. That reference, u nlike a statement about screening, doesn’t “convey that t he prosecution had additional inculpatory evidence unknown to t he jury.” Id. And the apparent point of the prosecutor’s statement s was not to improperly bolster the decision to prosecute the case but, instead, to elicit jurors’ reactions to a criminal case procee ding without a testifying victim 21 and to argue that the evidence coul d support a conviction even without the victim’s testimony. ¶ 52 Second, the prosecutor didn’t expre ss a personal belief in Faudoa’s guilt. None of her challen ged statements referred to her own beliefs about Faudoa’s guilt. Instead, they focused on the absence of the victim and the evide nce supporting a finding of guilt. Cf. People v. Vialpando , 2020 COA 42, ¶ 57 (prosecutor told the jury, among other things, “I thi nk you’ll agree with me at the end of testimony, that the defendant is guilt y of the charges”) ( cert. granted Oct. 12, 2020). ¶ 53 And third, the prosecutor didn’t suggest that she was aware of evidence unknown to the jury that would support a guilty verdict. Her statement that she was going to offer all the evidence she could under the rules of evidence was va gue and didn’t necessarily imply that she was aware of additional ev idence she couldn’t present to the jury — particularly given that she made this statement in the context of proceeding in the absen ce of testimony from the victim. Nor did her statement give any in dication, if there was any other evidence, what that evidence might be. Cf. Fortson , ¶¶ 47-48 22 (prosecutor said the defendant had committed instances of sexual assault in addition to those charge d). ¶ 54 At most, some of the prosecutor’s statements may have been inartful. See People v. Samson , 2012 COA 167, ¶ 30 (“[B]ecause arguments delivered in the heat of trial are not always perfectly scripted, reviewing courts accor d prosecutors the benefit of the doubt when their remarks are ambi guous or simply inartful.”). But they did not cross the line into pro secutorial misconduct. ¶ 55 And, to the extent that any of the prosecutor’s statements were objectionable, they were brief and isolated, were cured by the trial court’s rulings sustaining so me of the objections and striking one of the statements, and didn’t substantially influence the verdict, affect the fairness of the trial, or so undermine the fundamental fairness of the trial a s to cast serious doubt on the reliability of the judgment of convi ction. See Sauser , ¶ 80; Maloy , ¶ 11. 2. Inflaming the Jury’s Passion ¶ 56 Lastly, Faudoa argues that the pro secutor improperly used arguments calculated to inflame t he jury’s passion by saying the 23 victim was traumatized and felt like she was going to die. Again, we are not persuaded. ¶ 57 Faudoa again challenges statement s made at different times during the trial. Those statement s include:  In opening statements: “[Y]ou’re . . . going to hear about how [the victim] sounded when she was saying those things [on the 911 calls] . . . . Crying and hysterical, screaming and traumatized.” (The court overruled defense counsel’s objection to the w ord “traumatized.”)  In opening statements: “You’re g oing to hear what it feels like to have had someone’s hand ar ound your neck, to feel like you couldn’t breathe, to fe el like you might die. You’re going to hear what that soun ds like.” (The court didn’t rule on defense counsel’s ob jection but let the prosecutor rephrase the statement .)  In opening statements: “[Y]ou’re g oing to hear from a woman who has clearly gone throug h trauma.” (No objection was made to this stateme nt.)  In closing argument: “[W]hat you h eard [the victim’s sister-in-law] say is exactly what you guys heard on the 24 911 call, which is someone that [h as] experienced trauma.” (The court overruled def ense counsel’s objection.)  In rebuttal closing: “[Faudoa] does n’t get to strangle someone when she says bad thing s to him. He doesn’t get to make her feel like she is going to die.” (No objection was made to this stateme nt.) ¶ 58 Prosecutors may use rhetorical de vices and oratorical embellishments in opening statem ents and closing arguments. People v. Manyik , 2016 COA 42, ¶ 27 ; Strock , 252 P.3d at 1153. But such embellishments become improper if they induce the jury to determine guilt on the basis of passion or prejudice. Manyik , ¶ 27; Strock , 252 P.3d at 1153. ¶ 59 The evidence in this case — partic ularly the victim’s demeanor and statements during her 911 call s, the other witnesses’ testimony about her emotional state and he r difficulty speaking shortly after she had made the calls, and the ph otos showing marks on her neck and face — supports an inference t hat the victim was traumatized when Faudoa choked her. That sa me evidence, along with the 25 expert evidence on strangulation, also supports an inference that she may have felt she was going to die. ¶ 60 Thus, it was not improper for the prosecutor to make references to the victim’s trauma. See Maloy , ¶ 65 (prosecutor’s reference to the victim’s trauma wa sn’t improper because, “[w]hile there was no direct evidence that [the victim] suffered trauma, reasonable jurors could have infer red that [she] would have experienced trauma based on the evid ence presented”). Instead, as the trial court properly concluded, these were the type of oratorical embellishments that are allowed at trial. See Manyik , ¶ 27; Stroc k , 252 P.3d at 1153. III. Conclusion ¶ 61 The judgment is affirmed. JUDGE RICHMAN and JUDGE HA RRIS concur.