Opinion by
Defendant, Robert C. Salyer, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possessing marijuana with the intent to distribute it, a class four felony. We affirm.
Defendant was eighteen years, nine months of age when, on February 14, 2000, two high school students were murdered at a store where he had been earlier that evening and at where he had previously worked. The next day, defendant was interviewed by law enforcement authorities, who suspected that the murders were drug related. During the interview, defendant admitted that he had sold marijuana for the past six months at the store. However, he said that after hearing about the murders, he removed a half pound of marijuana and a scale from his truck and “stashed” them in a field near an elementary school. He led the sheriffs officers to those items, telling them that because of the murders, he no longer planned to sell marijuana.
Defendant was interviewed again three days lаter by the sheriffs officers. He was subsequently arrested after refusing to participate in an undercover drug operation and alerting his source of drugs about the direction of the homicide investigation.
At trial, defendant argued that, although he possessed the half pound of marijuana, he did not intend to sell it and that it would, in any event, be unfair to convict him after he had been led to believe that, because of his cooperation in the homicide investigation, hе would not be prosecuted for drug offenses.
The jury found defendant guilty of both possessing marijuana and possessing marijuana with the intent to distribute it. The trial court merged the verdicts and sentenced him to eighteen months probation on the greater crime.
I. Information
Initially, defendant contends that the information was insufficient to invoke the jurisdiction of the trial court. We disagree. As pertinent here, to invoke the jurisdiction of the trial court, an information must: (1) contain information from which it сan be understood that the offense was committed within the jurisdiction of the court or is triable therein; and (2) provide adequate notice of the charge, as well as the factual circumstances surrounding the offense, so that the defendant can adequately defend himself or herself and the trial court can pronounce judgment upon a conviction.
See
§ 16-5-202(l)(e), (d), C.R.S.2002;
People v. Williams,
Relying on
Bustamante v. District Court,
In
Bustamante,
the defendant was charged with committing a crime between two specific dates, one of which was beyond the applicable statute of limitations for the crime charged. The supreme court concluded that where the charging document “avers two dates, one of which is so remote as to be barred by the statute of limitations, it is defective” and beyond the jurisdiction of the court.
Bustamante v. District Court, supra,
Here, the information does not reference two dates, one of which would necessarily be beyond the jurisdiction of the trial court. Instead, it references but one date, February 14, 2000. Because that date fell nine months after defendant became an adult, and because the allegation stated “on and before” that date, we conclude that the information was sufficient to invoke the trial court’s jurisdiction over criminal cases. See Colo. Const, art. VI, § 9 (district courts have original jurisdiction in criminal cases, except as provided by law); § 19-2-104(7); C.R.S.2002 (juvenile court lacks jurisdiction “over a person *835 for any offense committed after the person attains the age of eighteen years”).
Defendant also argues that the time allegation in the information was not sufficient to provide him with adequate notice of the charged offense. We disagree.
Ordinarily, an information need only answer the questions of “who, what, where, and how.”
See People v. Steiner,
Because a specific date is not an element of the crime of possessing marijuana with intent to distribute it,
see
§ 18 — 18— 406(8)(b)(I), C.R.S.2002, here any indefiniteness regarding time was a matter of form, which did not deprive the court of jurisdiction and would not warrant reversal absent substantial prejudice to the defendant.
■See People v. Williams, supra,
We discern no such prejudice in this case. Defendant neither complained in the trial court of an insufficiency in the information nor requested a bill of particulars, for good reason: the “on and before February 14, 2000” allegation was sufficient to apprise him that the charge related only to the marijuana recovered by sheriffs officers on February 15, 2000. His claim of surprise, raised for the first time on аppeal, based on an alleged inability to defend against charges of prior acts, is unavailing: those acts were not the basis of the charge, and the record does'not reflect that he was unprepared for or surprised by evidence of the prior acts.
Defendant’s reliance on
People v. Thimmes,
Thus, we conclude the information was sufficient.
II. Voluntary Statements
Defendant contends that the trial court erroneously admitted statements that the sheriffs officers had involuntarily extracted from him by: (a) deliberately exploiting his , emotional vulnerability over the deaths of friends; and (b) assuring him, near the beginning of his February 15, 2000, interview, that they were interested in solving a murder and npt in his drug activity. We find no basis for reversal.
In the trial courts defendant grounded his motion to suppress only on evidence and argument concerning sheriffs officers’ statements made to him and his father following the conclusion of the interview "and the recovery of the marijuana. During the suppression hearing, he never asserted that psychological intimidation or earlier assurances by the authorities rendered his statements involuntary.
Inasmuch as the grounds upon which defendant now relies for relief were not raised in the trial court, we decline to consider them.
See People v. White,
III. Videotape Evidence Procedures
Defendant contends that reversal is required by certain irregularities surrounding the jury’s viewing of his videotaped statements during the trial. According to defendant: (1) the court’s comments to the jurors concerning the videotape evidence improperly diminished the dignity and seriousness of the trial and the role of the jury and also were made in the absence of defense counsel; and (2) the judge’s absence during the playing of the videotapes was structural error. We are not persuaded that reversal is required.
*836 A. Court’s Comments
The trial court met with the jurors for a few minutes to discuss the procedure for viewing defendant’s videotaped statements. From the record, it appears that this meeting was conducted without defense counsel being present.
At this meeting, the court informed the jurors that it would take longer than originally anticipated to view evidence of defendant’s videotaped statemеnts and that, instead of finishing the case as expected on that day, the jurors would spend most of the day watching videotapes on television. The court mentioned that, in contrast to the situation where live witness testimony was being presented, it would permit jurors to have candy, drinks, and lunch in the courtroom while the videotapes were played. The goal, the court said, was to make the jurors comfortable while watching the videotapes.
Read in context, thе remark about watching television conveyed nothing more than appropriate information about the medium by which the videotape evidence would be presented; and the remarks about allowing candy, drinks, and lunch — or even the remark about renting a movie theater made in response to one juror’s quip about getting couches — did not convey a sense that the jurors need not be attentive or that this evidence was less important than other evidence in the case. Rather, the court’s remarks were an attempt to preserve the attentiveness of the jury by making them comfortable about the prospect of viewing videotape evidence over a prolonged time.
However, relying on
Key v. People,
Defense counsel, who was immediately informed of the substance of the trial court’s discussion with the jury, did not request any precautionary or curative measures. The court’s discussion with the jury is a matter of record, and we perceive no prejudice to defendant arising therefrom.
Cf. Key v. People, supra,
B. Judge’s Absence from Courtroom
With the parties’ consent, the judge was absent during part of the time the videotapes were played.
The videotapes were approximately seven hours in length. From the record, we cannot tell how much time the judge was absent or present in the courtroom; his plan was to rotate the supervision of the viewing among himself and two members of his staff.
We recognize that, because there is ordinarily little that trial judges can do or expect to do during the reception of videotape evidence, they may well be tempted to find more productive uses of their time than simply sitting through the presentation of videotape evidence.
See State v. Patterson,
Nonetheless, a trial judge’s presence during a criminal trial is an integral component of a defendant’s constitutional rights to a jury trial and a fair trial.
See, e.g., Riley v. Deeds,
'Consequently, as the supreme court recognized in
People v. Garcia,
Here, we cannot tell from the record whether the judge, while absent from the bench, remained within hearing and sight of counsel and the jury at all times during the presentation of the videotape evidence. And, we cannot prеsume that he did. Consequently, in accord with Garcia and the other authorities cited above, we conclude that constitutional error occurred when the judge left the courtroom during the playing of the videotape evidence.
Constitutional error ordinarily falls into one of two of categories: trial or structural.
Griego v. People,
Trial errors are those that may be quantitatively assessed in the context of other evidence presented and are therefore subject tо harmless and plain error analyses. Structural errors are the consequences of a defect in the trial that is necessarily unquantifiable and indeterminate, rendering the entire trial fundamentally unfair and warranting automatic reversal.
People v. Geisendorfer,
Courts around the country have split over whether a judge’s absence from the courtroom during a critical stage of a criminal case qualifies as structural error. In those eases where structural error has not been found, “thеre has been either a finding of express or implied waiver of the right to the judge’s presence, or a determination that the judge, while technically absent, remained in ‘effective control’ of the proceedings.”
Riley v. Deeds, supra,
Indeed, in
United States v. Mortimer,
In
People v. Garcia, supra,
Because the constitutional error here is not structural in nature, it is subject to harmless or plain error analysis.
See Griego v. People, supra,
We reject defendant’s assertion that the judge’s absence was not harmless because, not having viewed all the videotape evidence, he was not in a position to properly rule on a motion for judgment of acquittal. Defendant does not direct our attention to any exculpаtory material in the videotapes, and the trial court otherwise had ample evidence before it, in the form of live witness testimony, to - deny defendant’s motion for acquittal.
*838 We wish to emphasize that it is error of constitutional magnitude for a judge, even with the parties’ consent, to absent himself or herself from the courtroom during the presentation of evidence to a jury. In this case, the error happened to be harmless beyond a reasonable doubt; in other cases, it might well require reversal on appeal.
IV. Other Bad Acts
Defendant contends that reversal is required because the trial court improperly admitted other bad acts evidence and allowed prosecutorial misconduct, related to this evidence, to occur during closing argument. We are not persuaded.
A. Evidence
Initially, defendant argues that the trial court erred in admitting evidence indicating that he had been a suspect in the homicide investigation, stolen money from the store, and dealt drugs in the past. We disagree.
Inasmuch as the homicide investigation was the mechanism by which the sheriffs officers came into contact with and obtained critical evidence about this case from defendant, the jury could not be expected to understand how this case unfolded without receiving at least some information about it.
See People v. Quintana,
We reject defendant’s assertion that the jury should not have been told that he might have been, or might still be, a suspect in the homicide,' or that he stole money from the store where the murders were committed. In his opening statement and cross-examination of witnesses, defendant referred to his having been a homicide suspect; and references to the murder and the theft were otherwise admitted via his videotaped statements, which he insisted be shown in their entirety to permit the jury to understand and assess how he had been treated by the police. Because defendant chose, as a matter of strategy, to inject this evidence into the case, he cannot, under the invited error doctrine, now complain about it on appeal.
See, e.g., People v. Stewart,
With respect to evidence of other drug activity, the prosecution introduced defendant’s videotaped admissions and the testimony of three witnesses that defendant had previously sold marijuana to others. The court admitted this evidence without either conducting a hearing on its admissibility or providing the jury with a limiting instruction.
Defendant did not object to the admission of the evidence, the lack of a hearing, or the lack of a limiting instruction. Consequently, reversal is not warranted absent a showing of plain error.
See
Crim. P. 52(b);
People v. Kruse,
Plain error is error that is obvious, substantial, and grave. It exists when, after a review of the entire record, a court can conclude with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast seriоus doubt on the reliability of the judgment of conviction.
Moore v. People,
Plain error did not occur here. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show that he or she acted in conformity therewith. Such evidence is admissible, however, for other purposes, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404(b);
Masters v. People,
Here, evidencе of defendant’s prior drug dealing qualified for admission because it tended to show, apart from any prohibited inference of bad character, that defendant possessed the marijuana recovered by the sheriffs officers with intent to distribute it. The evidence was particularly appropriate in light of defendant’s argument that he did not intend to distribute the marijuana.
See also United States v. Vaughn,
Because no error was occasioned by the admission of the evidence, plain error did not arise from the lack of a hearing to determine its admissibility.
See People v. Thompson,
B. Argument
Defendаnt argues that the prosecutor unduly highlighted the shootings at Columbine High School, which defendant, a number of the witnesses testifying to defendant’s prior drug dealing, and the two homicide victims had attended. Defendant also asserts error based on the prosecution’s comments that defendant distributed drugs to and “doped up” twelve-year-olds and “essentially cheat[ed] his employer and [sold] drugs at the same time.” However, inasmuch as defendant objected to none of these rеmarks, reversal is not warranted absent a showing of plain error.
See People v. Kenny,
To qualify as plain error, prosecuto-rial misconduct not only must be flagrant or glaringly or tremendously improper, but also must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.
People v. Gordon,
Claims of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury.
People v. Kerber,
Here, the prosecutor’s comments were grounded in the evidence and largely responsive to defense arguments that were intended to elicit sympathy from the jury, specifically, arguments about the devastating impact of the Columbine shootings and the unfairness of prosеcuting defendant after he cooperated with law enforcement.
We do not condone all of the prosecutor’s remarks. Yet, when viewed in context and particularly in light of the Columbine comments and the fairness argument made by defense counsel, they were not so egregious and prejudicial as to constitute plain error.
See People v. Gordon, supra,
V. Jury Unanimity
Finally, defendant contends that the trial court deprived him of a unanimous jury verdict. We disagree.
When evidence of many acts is presented, any one of which could constitute the offense charged, and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, the trial court must take one of two actions to ensure jury unanimity. The court must either require the prosecution to elect the transaction on which it .relies for conviction, or instruct the jury that to convict the defendant it must unanimously agree that the defendant committed thе same act or committed all the acts included with the period charged.
The requirement of an election or a modified unanimity instruction assures that a conviction does not result from some members of the jury finding the defendant guilty of one act, while others convict based on a different act.
People v. Rivera,
Here, the trial court neither required an election between or among acts nor provided the jury with a modified unanimity instruction. However, because defendant rеquested neither action by the trial court, reversal is not warranted in the absence of plain error.
See People v. Rivera, supra,
In
Rivera, supra,
Here, in contrаst, there were but two types of illegal transactions: the first involving the marijuana recovered by the sheriffs officers on February 15, 2000, and the second involving the prior sales or gifts to others of purported marijuana.
The parties referenced both types in their closing arguments. However, both sides focused on the marijuana recovered by the sheriffs officers. At several points in the short closing argument, the prosecution applied the elements instruction to the recovered marijuana; and, in his closing argument, defendant chose, as a tactical matter, to acknowledge his guilt of only a lesser included offense in connection with the same transaction.
Given the parties’ arguments, we find no reasonable likelihood that the jury’s verdict could have been based on an act or acts other than that involving the recovered marijuana. Consequently, reversal is not warranted on this ground.
See People v. Lawrence,
Accordingly, the judgment is affirmed.