People v. Dinapoli, 369 P.3d 680

Defendant Joann Dinapoli was convicted by a jury of one count of second-degree assault after an altercation following a fight between the parties' dogs; complainant K.M. testified Dinapoli struck her with a large tree branch, dislocating an arm.
Defense theory: K.M. swung a leash with a metal clip and Dinapoli hit once to protect herself and her dog; jury acquitted Dinapoli of harassment and two other assault counts.
During deliberations the jury asked what would happen if they could not agree on one count; the trial court gave a modified-Allen supplemental instruction and did not tell jurors a mistrial was possible.
Pretrial, the court had told parties not to refer to K.M. as "the victim," but at trial the prosecutor and a police witness repeatedly used that term; Dinapoli did not object at trial to those references.
On appeal Dinapoli argued (1) the court should have advised jurors a mistrial was possible if unanimity could not be reached, and (2) prosecutorial misconduct occurred when K.M. was called "the victim."
The court affirmed the conviction, rejecting both claims: the modified-Allen charge was permissible without a mistrial advisement and the references to "victim" did not constitute plain error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by giving a modified-Allen instruction without advising jurors a mistrial could be declared	Prosecution: Supplemental modified-Allen was appropriate to encourage further deliberation; mistrial advisement not required	Dinapoli: Court should have told jurors a mistrial was possible if they could not reach unanimity	Court: No error or abuse of discretion; Gibbons permits giving a modified-Allen without mandatory mistrial advisement and the instruction was not coercive
Whether prosecutor/witness referring to the complainant as "the victim" was prosecutorial misconduct requiring reversal	Prosecution: References were fair comment on evidence and did not overbear jury instructions on presumption of innocence	Dinapoli: Term "victim" assumes commission of a crime and undermines presumption of innocence; pretrial order barred the term	Court: Dinapoli failed to contemporaneously object so issue reviewed for plain error; references were not obvious error and did not substantially prejudice verdict; conviction stands

Gibbons v. People, 328 P.3d 95 (Colo. 2014) (trial courts have discretion to give a modified-Allen instruction and are not required to supplement it with a mistrial advisement)
Fain v. People, 329 P.3d 270 (Colo. 2014) (modified-Allen instruction is not coercive)
People v. Cordova, 293 P.3d 114 (Colo. App. 2011) (preservation rule: objections must alert trial court to particular issue)
United States v. Fonseca, 744 F.3d 674 (10th Cir. 2014) (when a party violates a pretrial order, an opposing contemporaneous objection is required to preserve the claim)
Hagos v. People, 288 P.3d 116 (Colo. 2012) (plain-error standard requires error be obvious and substantial)