People v. Terrence Kenneth Eugene

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 1, 2022
2022COA99No. 19CA2267, People v. Eugene — Constitutional Law — Fifth
Amendment; Criminal Law — Custodial Interrogation —
Miranda
A division of the court of appeals considers whether the trial
court violated the defendant’s Fifth Amendment rights by admitting
his statements made during an interrogation that were not
preceded by a Miranda warning. The majority concludes that the
defendant was in custody for the last part of the interrogation based
on the totality of the circumstances. Because admitting these
custodial statements violated the defendant’s Fifth Amendment
rights and were not harmless beyond a reasonable doubt, the
majority reverses.
The dissent disagrees, concluding the defendant was never in
custody during the interrogation. The dissent therefore concludes
that the trial court properly admitted the defendant’s statements
made during the interrogation and would affirm.
COLORADO COURT OF APPEALS 2022COA99Court of Appeals No. 19CA2267
Arapahoe County District Court No. 18CR1224
Honorable Ben L. Leutwyler, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Terrence Kenneth Eugene,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE PAWAR
Kuhn, J., concurs
Bernard*, J., dissents
Announced September 1, 2022
Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
¶1 Defendant, Terrence Kenneth Eugene, appeals the judgment of
conviction entered on jury verdicts finding him guilty of second and
third degree assault arising out of a road rage incident. We reverse
his convictions and remand for retrial because we conclude that
admitting a portion of his interrogation by police violated his Fifth
Amendment rights.
I. Background
¶2 The undisputed facts at trial established that Eugene was
driving with his wife and got into a road rage incident with two men
in another vehicle. Eventually, all four individuals got out of their
vehicles and Eugene had a physical altercation with the other
driver. There was conflicting evidence about who initiated the fight.
Both men sustained injuries, though the other driver’s injuries were
more severe, including cuts to his face and back. When the fight
ended, Eugene and his wife got back into their car and left. The two
men from the other vehicle remained, called 911, and relayed
Eugene’s license plate number to the authorities.
¶3 Two days later, two police officers arrived at Eugene’s
apartment and knocked on the door. They asked Eugene if he
would step outside and talk to them, and Eugene agreed. What
1
followed was a twenty-seven-minute interrogation that was
captured on the body-worn camera of Officer Christopher Thivierge,
the interrogating officer. The officers never advised Eugene of his
Fifth Amendment rights in accordance with Miranda v. Arizona, 384
U.S. 436 (1966). During the interrogation, Officer Thivierge
separated Eugene and his wife to interrogate each alone, suggested
falsely that he had camera footage of the fight, and denied Eugene’s
request to go back inside and use the bathroom.
¶4 Before trial, Eugene moved to suppress the video of the
interrogation, arguing that he was in custody for purposes of
Miranda and the lack of a Miranda advisement rendered his
statements during the interrogation inadmissible. The trial court
held a suppression hearing and ruled that Eugene was never in
custody for Miranda purposes. The entirety of Eugene’s interaction
with the interrogating officer was subsequently admitted at trial
(save Eugene’s references to being on probation, which were
redacted and are irrelevant to this appeal).
¶5 The jury found Eugene guilty of second degree assault
(reckless) and third degree assault (knowing). The trial court
sentenced him to eight years in prison.
2
¶6 On appeal, Eugene argues that the trial court erred by failing
to suppress the statements he made during the interrogation. He
also argues that the court erred by refusing to give several self-
defense instructions, allowing the prosecutor to engage in improper
argument, admitting a medical expert’s testimony, and failing to
merge his convictions. We agree with Eugene that the trial court
erred by failing to suppress some of his statements from the
interrogation. We further conclude that this error requires reversal
and therefore need not address his remaining arguments.
II. The Trial Court Should Have Suppressed Some of Eugene’s
Statements from the Interrogation
¶7 Whether an interrogation was custodial, thus requiring a
preceding Miranda advisement, presents a mixed question of fact
and law. See People v. Sampson, 2017 CO 100, ¶ 16. We defer to
the trial court’s factual findings if they are supported by the record.
Id. But we review the court’s custody determination de novo. Id.¶8 At the suppression hearing, the only evidence was Officer
Thivierge’s body-worn camera footage and brief testimony from the
second officer, which aligned with the footage. The trial court ruled
that Eugene was not in custody and denied the motion to suppress.
3
In so doing, the court found that the officers maintained a distance
of four to five feet from Eugene, Eugene had a cigarette during the
conversation, no weapons were drawn, and although Officer
Thivierge used “assertive mannerisms or language,” there was no
detectable yelling, threatening, or coercion.
¶9 At the hearing, there was no conflicting evidence, nor was the
trial court required to make any credibility determinations. We
therefore base our analysis on our own review of the body-worn
camera footage, mindful that we are in just as good a position as
the trial court to determine whether, based on that footage, Eugene
was in custody. See id. (reviewing court may consider undisputed
facts evident in the record).
A. Governing Law on Custody for Miranda Purposes
¶ 10 Before being subjected to custodial interrogation by law
enforcement, a suspect must be advised of his Fifth Amendment
rights, including the right to remain silent to avoid self-
incrimination. Miranda, 384 U.S. at 444. A suspect’s statements
during custodial interrogation that were not preceded by a Miranda
advisement are not admissible in the prosecution’s case-in-chief
(unless the suspect voluntarily, knowingly, and intelligently waives
4
his rights, an issue not relevant to this appeal). See Sanchez v.
People, 2014 CO 56, ¶ 11.
¶ 11 The prosecution concedes, and we agree, that the entire
interaction was an interrogation. The question therefore becomes
whether all or part of that interrogation was custodial.
¶ 12 To answer that question, we apply an objective test. We ask
whether a reasonable person in Eugene’s position would have
believed that his freedom of action had been curtailed to a degree
associated with a formal arrest. Id. at ¶ 18. Our supreme court
has made clear that we are to holistically analyze the totality of the
circumstances in each particular case. Id. No single fact or factor
is determinative. See People v. Matheny, 46 P.3d 453, 466 (Colo.
2002). That said, our supreme court has identified a nonexhaustive
list of factors that courts should consider. Id. They are
(1) the time, place, and purpose of the
encounter; (2) the persons present during the
interrogation; (3) the words spoken by the
officer to the defendant; (4) the officer’s tone of
voice and general demeanor; (5) the length and
mood of the interrogation; (6) whether any
limitation of movement or other form of
restraint was placed on the defendant during
the interrogation; (7) the officer’s response to
any questions asked by the defendant; (8)
whether directions were given to the defendant
5
during the interrogation; and (9) the
defendant’s verbal or nonverbal response to
such directions.
Id. at 465-66 (quoting People v. Trujillo, 938 P.2d 117, 124 (Colo.
1997)).
B. The Last Part of Eugene’s Interrogation was Custodial
¶ 13 With the above law to guide us, we now review de novo
whether the totality of the circumstances rendered Eugene’s
interrogation custodial at any point. We conclude that although the
interrogation was not custodial at the beginning, it became
custodial toward the end.
¶ 14 The interrogation began with two officers knocking on the door
of Eugene’s apartment in the middle of the day. Eugene came to
the door, Officer Thivierge asked if he wanted to come talk outside,
and Eugene said “sure.” Eugene’s wife followed Eugene and the
officers outside the building, and they began to talk in front of the
building’s door.
¶ 15 The interrogation unfolded in three distinct phases: first,
Officer Thivierge spoke to Eugene and his wife, and then Eugene
alone, outside; second, Officer Thivierge went inside and spoke to
Eugene’s wife while Eugene remained outside accompanied by
6
another officer; and third, Officer Thivierge spoke to Eugene outside
again with other officers present.
¶ 16 The entire interaction lasted over twenty-seven minutes.
Eugene was never physically restrained. Nevertheless, based on the
totality of the circumstances, we conclude that at the beginning of
the third phase of the interrogation, a reasonable person in
Eugene’s position would have believed that his freedom of action
was curtailed to a degree associated with a formal arrest.
¶ 17 Officer Thivierge’s tone throughout the interrogation was
accusatory and confrontational. He raised his voice on more than
one occasion, though he did not yell at any point. At the beginning,
Officer Thivierge asked Eugene and his wife whether they had been
in a road rage incident two days earlier. Eugene’s wife started to
answer, but Officer Thivierge cut her off, extended his hand
outward gesturing her to stop, and talked over her, saying “stop”
repeatedly and “before you start making up stories . . . how do you
think we found you and [Eugene]?” Minutes later, Officer Thivierge
asked Eugene’s wife to go inside so he could speak to her and
Eugene separately. For the remainder of this first phase of the
7
interrogation, the second officer stood between Eugene and the door
to the apartment building, keeping his hand on the door handle.
¶ 18 After Eugene’s wife went inside, Eugene recounted his version
of the fight. Officer Thivierge told him, “I don’t believe you.” Officer
Thivierge also falsely and repeatedly suggested that there was video
footage of the fight, saying “[W]hat if I were to tell you that there
was a camera that caught the incident and in that incident,
somebody had a knife and cut the driver of that car enough to
cause serious bodily injury to his body, what if I were to tell you
that?” Officer Thivierge later asked, “[W]hat if that camera caught
you doing it, what would you say to that?” And then, “[W]hat if I
also told you that you were driving that car because cameras
showed you getting in the driver’s seat of that car and driving
away?” Eugene maintained that he did not have a weapon, the
other driver swung first, and he did not punch the other driver.
¶ 19 At the end of the first phase, Officer Thivierge told Eugene he
was going inside to speak to his wife. Eugene asked to go inside
and use the bathroom. Officer Thivierge denied that request, saying
“[I]n a second, I’m just gonna go talk to her real quick.” As a result,
8
Eugene stayed outside with the second officer for fourteen minutes
while Officer Thivierge went inside and spoke to Eugene’s wife.
¶ 20 By the time Officer Thivierge returned outside, a third officer
had arrived and was standing with Eugene and the second officer.
The third phase of the interrogation began, with the second officer
again standing between Eugene and the door of his apartment
building. Officer Thivierge listed some of his perceived
inconsistencies in Eugene’s version of the incident and asked,
“[W]hy do you keep lying?” Eventually, Eugene admitted to having
punched the other driver but insisted that the other driver swung
first.
¶ 21 We agree with the trial court that during the first phase of the
interrogation, Eugene was not in custody for Miranda purposes.
But when Officer Thivierge returned outside and the third phase
began, the interrogation became custodial. See People v. Horn, 790
P.2d 816, 818 (Colo. 1990) (initial voluntariness of a person’s
presence does not preclude the determination that his presence is
thereafter custodial in nature). At that point, Eugene had been
outside with officers for over twenty-two minutes. See People v.
Cleburn, 782 P.2d 784, 786 (Colo. 1989) (concluding the defendant
9
was in custody relying, in part, on a finding that the twenty-to-
thirty-minute interrogation was “relatively long”). The officers had
directed — and then maintained — Eugene’s separation from his
wife. Cf. Effland v. People, 240 P.3d 868, 875 (Colo. 2010)
(excluding daughter from interrogation included among several
factors in favor of finding custodial interrogation). While calm,
Officer Thivierge had spoken to him accusatorily and
confrontationally throughout. See People v. Minjarez, 81 P.3d 348,
357 (Colo. 2003) (interrogation was custodial where the defendant
was subject to repeated accusations and the mood in the room was
tense and confrontational). Officer Thivierge had repeatedly
misrepresented that video footage of the incident existed and had
told Eugene, “I don’t believe you.” Cf. Matheny, 46 P.3d at 467
(interrogation was not custodial because officers “were completely
honest with Defendant”); Minjarez, 81 P.3d at 357 (interrogation
was custodial where questions were coercive and intended to force
agreement from the defendant). The second officer had been
positioned between Eugene and the door to the building with his
hand on the door, and a third officer had arrived. See People v.
Alemayehu, 2021 COA 69, ¶ 78 (considering number of officers
10
present as relevant to custody determination). And Officer Thivierge
had denied Eugene’s request to go inside his own home and use the
bathroom. Cf. People v. Davis, 2019 CO 84, ¶ 31 (no custody in
part because the defendant was permitted to return to his bedroom
to retrieve his glasses and phone). At this point, a reasonable
person in Eugene’s position would feel that his freedom of action
was curtailed to a degree associated with a formal arrest.
¶ 22 We therefore conclude that, based on the totality of the
circumstances, Eugene was in custody for Miranda purposes during
the third phase of the interrogation.
¶ 23 The dissent supports its contrary conclusion by identifying
numerous individual facts that were present in cases where the
suspect was in custody and noting the absence of those facts here
(for example, the use of physical restraints, the drawing of a
weapon, and a detention lasting an hour or more). It also identifies
things the officers could have done but did not (e.g., they did not
show up at night, they did not conduct a search beyond a pat-down
of Eugene, and they did not crowd or surround Eugene). While not
inappropriate, we find this analysis unpersuasive. The legal
standard we must apply does not focus on the presence or absence
11
of individual factors standing alone. Instead, the legal standard
requires us to focus on the combined effect of the inherently unique
facts of a given case.
¶ 24 The facts here were that at the beginning of the third phase of
the interrogation, the interaction had already lasted at least twenty-
two minutes;1 Officer Thivierge consistently spoke to Eugene in a
confrontational and accusatory tone throughout the interrogation;
Officer Thivierge had directed and maintained Eugene’s separation
from his wife; Officer Thivierge had denied Eugene’s request to go
inside his apartment to use the bathroom; Officer Thivierge had lied
about the existence of video footage and asked Eugene why he was
lying; and a third officer had arrived. We conclude that Eugene was
in custody during the third phase of the interrogation based on this
1 The dissent states that Eugene was only interrogated for a total of
“about eleven minutes and forty-five seconds.” Infra ¶ 61.
Technically, this is true. Officer Thivierge actively interrogated
Eugene for a total of eleven minutes and forty-five seconds. But we
cannot ignore the fact that in between the first and third phases of
the interrogation, after Officer Thivierge denied Eugene’s request to
go inside his own home and use the bathroom, Eugene was made to
stand outside with the non-interrogating officer (and eventually a
third officer) for over fourteen minutes. This additional fourteen
minutes of detention is certainly part of the totality of the
circumstances we must consider when making a custody
determination.
12
inherently unique combination of facts and circumstances. See
People v. Marko, 2015 COA 139, ¶ 56 (custody determination for
purposes of Miranda must be made on a case by case basis).
¶ 25 Officers failed to give Eugene a Miranda advisement before the
third phase. The trial court therefore violated Eugene’s Fifth
Amendment rights by failing to suppress Eugene’s statements from
this third phase.2 Based on this conclusion, we now turn to
whether this constitutional error requires reversal.
C. Reversal is Required
¶ 26 A constitutional error requires reversal unless it was harmless
beyond a reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11.
Under this standard, we must reverse if there is any reasonable
possibility that the error might have contributed to the conviction.
Id. Once constitutional error has been found, the prosecution has
the burden to prove that the error does not require reversal under
this standard. Id.2 We emphasize that officers are free to use confrontational and
coercive techniques that amount to custodial interrogation — as
long as they advise the suspect of his Fifth Amendment rights
before doing so.
13
¶ 27 Having determined that there was constitutional error, we
conclude that the prosecution has failed to carry its burden to show
that reversal is unnecessary. The prosecution’s entire argument on
this issue in the briefs is a single sentence: “Nonetheless, the
admission of the statements would be harmless beyond a
reasonable doubt in light of the overwhelming evidence
demonstrating that the Defendant was the initial aggressor.” The
prosecution does not explain what constitutes overwhelming
evidence in general, nor does it identify the specific evidence that is
supposedly overwhelming here. Although the prosecution followed
its single sentence of argument with a record citation, more is
required to develop an argument to the point that we will address it
as sufficiently raised on appeal, let alone to the point that it
satisfies the prosecution’s heavy burden to disprove the necessity of
reversal. See People v. Leverton, 2017 COA 34, ¶ 65 (rejecting a
constitutional argument because “it was not sufficiently developed
and we do not address skeletal arguments”); People v. Mendenhall,
2015 COA 107M, ¶ 49 (describing the prosecution’s burden to prove
harmlessness beyond a reasonable doubt as “heavy”); People v.
Simpson, 93 P.3d 551, 555 (Colo. App. 2003) (declining to consider
14
“a bald legal proposition presented without argument or
development”).
III. Conclusion
¶ 28 The judgment of conviction is reversed, and the case is
remanded for retrial in accordance with this opinion.
JUDGE KUHN concurs.
JUDGE BERNARD dissents.
15
JUDGE BERNARD, dissenting.
¶ 29 The majority concludes that defendant was in custody at the
end of the encounter in this case when he made incriminating
statements to the investigating officer. The majority continues that
the officer was, therefore, obligated to inform defendant of his
Miranda rights before questioning him further. As a result, the
majority finishes up, those statements should not have been
admitted at defendant’s trial, and, because they were, his conviction
must be reversed. I disagree because I conclude that defendant was
not in custody at any time during the interrogation, so the officer
was not required to inform him of his Miranda rights. I therefore
respectfully dissent.
I. Defendant Was Not in Custody When the Investigating Officer
Interrogated Him
A. The Interrogation
¶ 30 The video of the interrogation came from a body camera that
the investigating officer was wearing. It is about twenty-seven
minutes long. Its first minute and forty seconds consist of the
investigating officer, who was accompanied by a second officer,
knocking on the door of defendant’s apartment and then waiting for
16
defendant’s wife to bring defendant to the door. (The second officer
said very little during the entire video.)
¶ 31 In a conversation in the hallway outside the apartment that
lasted only a few seconds, the investigating officer asked defendant
to go outside to talk. Defendant agreed. The tone of this short
conversation was calm and friendly.
¶ 32 The two officers and defendant went outside into the daylight,
and they stood by a door to the apartment building. The
investigating officer asked defendant whether he was carrying any
weapons. Defendant said “no,” and the officer told defendant that
he was going to “pat [defendant] down real quick.” He did so, and
did not find any weapons.
¶ 33 As the investigating officer began to ask defendant questions,
defendant’s wife came outside. The officer wanted to know if either
of them had driven their car on the day of the road rage incident
that led to the charges in this case. When the officer asked
defendant’s wife whether she and defendant had been involved in
that incident, she said “no.” The officer immediately raised his
voice some — he was not yelling — and interrupted defendant’s
17
wife, assertively telling her, “Stop. Before you go making up stories,
how do you think we found you and [defendant]?”
¶ 34 Defendant’s wife then admitted that they had been involved in
the incident, although she portrayed the victim as the aggressor.
¶ 35 The officer then asked defendant some questions while
defendant smoked a cigarette. The officer’s tone during this
questioning was calm and matter of fact. After about three and a
half minutes, the officer asked defendant’s wife to “do him a favor,”
adding that he wanted to talk with defendant alone and that he
would speak with her separately. She went back inside.
¶ 36 The investigating officer made more inquiries of defendant,
again in a calm and matter-of-fact tone of voice. About a minute
into them, the officer asked, “What if I were to tell you that there
was a camera that caught the incident, and, in that incident,
somebody had a knife and cut the driver of that car enough to
cause serious bodily injury to his body? What if I were to tell you
that?” (The record does not contain any indication that there was
such a camera. It is therefore reasonable to suppose that the officer
made this up.) Defendant denied having a knife or cutting anyone.
At one point, the officer told defendant that he did not believe him
18
when defendant said that “nothing else happened.” Defendant
denied doing anything more than pushing the victim.
¶ 37 Defendant asked the officer if he could “run in” and use the
bathroom. The officer replied, “In a second. I’m just going to go
talk to [defendant’s wife] really quick, okay?”
¶ 38 This part of the interrogation — between when defendant’s
wife left and when the investigating officer went inside — lasted
about four and three-quarter minutes. So, up to this point, the
investigating officer had questioned defendant outside the
apartment for about eight minutes and fifteen seconds.
¶ 39 The investigating officer then went inside for about thirteen
minutes and forty-five seconds, and he spoke with defendant’s wife
in the hallway outside defendant’s apartment for most of this time.
During this interrogation, a third officer showed up. The
investigating officer directed the third officer to remain outside with
defendant and the second officer. (Like the second officer, the third
officer said little that was captured by the investigating officer’s
body camera.)
¶ 40 Although defendant’s wife denied that defendant had been
armed with a knife during the incident or that he had cut the victim
19
with it, she admitted for the first time that defendant had punched
the victim.
¶ 41 While the investigating officer questioned defendant’s wife
inside the apartment building, defendant was outside of the
apartment with the other two officers. The building’s door was
closed, and the video from the investigating officer’s body camera
does not show what anyone was doing outside, and it did not
capture what anyone outside may have said.
¶ 42 When the investigating officer went back outside, he spoke to
defendant in a matter-of-fact, calm way. Defendant was leaning
against a car, talking with the other officers. The investigating
officer asked defendant, “Do you see how this looks right now?” and
“Why do you keep lying?” He confronted defendant with the
inconsistencies in defendant’s story, explaining that defendant’s
wife said that defendant had punched the victim. Defendant then
admitted, for the first time, that he had punched the victim. But he
continued to deny that he had been armed with, or had used, a
knife. The officer then told defendant that “[i]t looks so bad right
now” because the victim had stayed at the scene and called the
20
police while defendant and his wife had left. At that point, the
officer again raised his voice, but he was not yelling.
¶ 43 The officer told defendant that he was going to call the
detective who was handling the case, and he began to walk to his
car. The video ended.
¶ 44 This last part of the interrogation lasted about three minutes.
The investigating officer’s entire interrogation of defendant lasted
approximately eleven and one-quarter minutes.
¶ 45 There is no indication in the record, including in the video
from the investigating officer’s body camera, that any of the officers
told defendant that he could not leave or that defendant expressed
any desire to leave. The officers did not yell at him or at his wife;
they did not call him or his wife any names; and they did not
threaten him or his wife. They did not arrest defendant after the
interrogation. That came later.
B. The Law
¶ 46 “Miranda sought to address the problem of how the Fifth
Amendment privilege against compelled self-incrimination could be
protected from ‘the coercive pressures that can be brought to bear
upon a suspect in the context of custodial interrogation.’” People v.
21
Davis, 2019 CO 84, ¶ 16 (quoting Berkemer v. McCarty, 468 U.S.
420, 428 (1984)). “Given the Fifth Amendment concerns that
animated the decision, Miranda warnings are required only ‘when a
suspect is subject to both custody and interrogation.’” Id. (quoting
Effland v. People, 240 P.3d 868, 873 (Colo. 2010)). There is no
question in this case that the investigating officer interrogated
defendant; the central question is whether defendant was in
custody for purposes of Miranda during any part of the
interrogation.
¶ 47 “Custody for [the purposes of Miranda v. Arizona, 384 U.S.
436, 444 (1966),] under the Fifth Amendment is determined under
a different analysis from that applied to determine whether there
has been a seizure under the Fourth Amendment.” People v.
Stephenson, 159 P.3d 617, 620 (Colo. 2007). “A seizure results
under the Fourth Amendment where the police conduct in question
‘would have communicated to a reasonable person that the person
was not free to decline the officers’ requests or otherwise terminate
the encounter.’” Id. (quoting People v. Jackson, 39 P.3d 1174, 1182
(Colo. 2002)).
22
¶ 48 Under the Fifth Amendment, “the safeguards prescribed by
Miranda become applicable as soon as a suspect’s freedom of action
is curtailed to ‘a degree associated with formal arrest.’” Berkemer,
468 U.S. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983)).
Under Berkemer, the question [of whether a
defendant is in custody for the purposes of
Miranda] is not whether a reasonable person
would believe he was not free to leave, but
rather whether such a person would believe he
was in police custody of the degree associated
with a formal arrest.
People v. Polander, 41 P.3d 698, 705 (Colo. 2001).
¶ 49 The distinction between custody and arrest, on the one hand,
and a brief investigatory detention, on the other hand, is significant.
“Mere detention does not deprive a person of his freedom to the
degree associated with a formal arrest.” Davis, ¶ 20. “[A]lthough
relevant to the analysis, detention alone is not dispositive of a
custody determination.” Id. While “an investigatory detention
constitutes a ‘seizure’ for purposes of the Fourth Amendment, such
detention does not necessarily mean that the suspect is ‘in custody’
for purposes of Miranda.” Id. “In the Miranda context, ‘“custody” is
a term of art that specifies circumstances that are thought generally
23
to present a serious danger of coercion.’” Id. at ¶ 17 (quoting
Howes v. Fields, 565 U.S. 499, 508-09 (2012)).
¶ 50 “This is not to say that Miranda can never be implicated
during a valid investigatory detention. A court must examine the
facts and circumstances of the encounter to determine whether
Miranda applies.” Id. at ¶ 21. “If a person detained pursuant to an
investigatory stop ‘thereafter is subjected to treatment that renders
him “in custody” for practical purposes, he will be entitled to the
full panoply of protections prescribed by [Miranda].’” Id. (quoting
Berkemer, 468 U.S. at 440).
¶ 51 What conduct during an investigatory stop triggers Miranda’s
protections? For example, “Miranda rights are . . . implicated when
police detain a suspect using a degree of force more traditionally
associated with concepts of ‘custody’ and ‘arrest’ than with a brief
investigatory detention.” Polander, 41 P.3d at 705.
¶ 52 What is the degree of force traditionally associated with
concepts of custody and arrest? If, for example, a “police officer
uses physical restraint on the suspect, or draws a gun[, the
encounter] is more likely to be deemed custodial.” People v.
Breidenbach, 875 P.2d 879, 886 (Colo. 1994)(quoting People v.
24
Herdan, 116 Cal. Rptr. 641, 645 n.11 (Ct. App. 1974)). Physical
restraint includes handcuffing, holding a suspect by the arm, or
placing the suspect in a police car. People v. Holt, 233 P.3d 1194,
1197-98 (Colo. 2010). “[T]he lack of physical restraint suggests . . .
that [a defendant] [is] not in custody.” People v. Cowart, 244 P.3d
1199, 1204 (Colo. 2010). And an officer’s statement that a suspect
will not be released after an interrogation is also indicative of an
arrest. People v. Figueroa-Ortega, 2012 CO 51, ¶ 8.
¶ 53 To decide whether the police have placed a person in custody
for the purposes of Miranda, a court considers the totality of the
circumstances. Cowart, 244 P.3d at 1203. This is an objective test.
Id. As part of that consideration, Cowart, among other decisions
from our supreme court, including the one cited by the majority,
directs trial courts to consider a series of nine nonexclusive factors.
Id. None of these factors alone is determinative. People v. Barraza,
2013 CO 20, ¶ 17. The majority has listed these factors in
paragraph 12 of its opinion.
C. Analysis
¶ 54 I think that a reasonable argument could be made that
defendant was not detained at all and that the encounter with the
25
officers was consensual. For example, there is no indication that
any officer told defendant that he had to talk with them, that he
had to go outside with them, that he had to remain with them
outside, that he could not just walk away from the interrogation, or
that he was under arrest. But, for the purposes of this dissent, I
will assume that defendant was not free to leave during the police
interrogation and that he was, therefore, the subject of an
investigatory detention.
¶ 55 I base this assumption on the following facts from the
interrogation: (1) the investigating officer asked defendant to go
outside; (2) the officer patted defendant down once they got outside;
(3) after speaking with defendant and his wife together, the officer
asked defendant’s wife to leave so that the officer could ask
defendant questions; (4) the officer told defendant to wait a “second”
to go to the bathroom because the officer wanted to interview
defendant’s wife; (5) the officer raised his voice, although he did not
yell, when speaking with defendant’s wife in defendant’s presence
and when talking with defendant near the end of the interrogation;
(6) the officer told defendant that he did not believe defendant, and
he confronted defendant with new information that he had learned
26
from defendant’s wife; (7) the officer told defendant that a camera
had recorded the road rage incident, which apparently was not true;
and, (8) for almost the entire encounter, there were two police
officers with defendant, and, at the end, three.
¶ 56 Even making this assumption, I nonetheless conclude, for the
following reasons, that, based on the totality of the circumstances,
the officers did not do anything to escalate the investigatory
detention into the level of custody that would require the
investigating officer to read defendant his Miranda rights before
questioning him. See Davis, ¶¶ 20-21.
¶ 57 First, the investigatory detention that I assume occurred did
not automatically equal custody for Miranda’s purposes because
such a “mere detention” did not deprive defendant of his freedom to
the degree associated with a formal arrest. See id. at ¶ 20; see also
People v. Begay, 2014 CO 41, ¶ 20 (“Is . . . a suspect [detained
during an investigatory stop] seized under the Fourth Amendment?
Typically, yes. Does that mean he is in custody under the Fifth
Amendment? Not necessarily — investigatory detention of this sort
may occur without the degree of restraint associated with a formal
arrest.”). And defendant’s putative detention would not be
27
“dispositive of a custody determination” for purposes of Miranda.
See Davis, ¶ 20.
¶ 58 Second, the test for custody “is not whether a reasonable
person would believe he was not free to leave.” Polander, 41 P.3d at
705; see also Begay, ¶ 16 (A “trial court errs by applying the ‘free to
leave’ standard in evaluating whether a suspect is in custody under
the Miranda doctrine.”). So, even if defendant reasonably felt that
he was not free to leave, that, by itself, was not enough to establish
that defendant was in custody under Miranda.
¶ 59 Third, defendant’s putative detention was more “typical of an
investigatory stop” than of an arrest. See Begay, ¶ 20; Figueroa-
Ortega, ¶ 8. An investigatory detention is an intermediate “level of
police response or limited seizure, and it may be proper in ‘narrowly
defined circumstances upon less than probable cause.’” People v.
Garcia, 11 P.3d 449, 453 (Colo. 2000)(quoting People v. Archuleta,
980 P.2d 509, 512 (Colo. 1999)). It must be brief, limited in scope,
and narrow in purpose, and, to justify such a detention, the police
“must have an articulable and specific basis in fact to believe that
an individual is committing, has committed, or is about to commit a
crime.” Id. In this case, the detention was brief, its scope was
28
limited to questioning defendant and his wife, and the investigating
officer clearly had an articulable and specific basis to believe that
defendant had been involved in the road rage incident.
¶ 60 There are no rigid time limitations on investigative detentions.
Davis, ¶ 36. “[W]hen determining whether a detention is too long in
duration,” which would turn an investigative detention into an
arrest for Fourth Amendment purposes, “it is appropriate to
examine whether police were diligent in pursuing a means of
investigation likely to resolve their suspicions quickly.” People v.
Lidgren, 739 P.2d 895, 896 (Colo. App. 1987).
¶ 61 In this case, the investigating officer only interrogated
defendant for about eleven minutes and forty-five seconds. And the
entire encounter lasted twenty-five and a half minutes. (Remember
that about the first minute and forty seconds were taken up by
knocking on the door to defendant’s apartment and asking for him.)
This was not an unreasonable time, particularly because the
encounter lasted only long enough for the investigating officer to
question defendant and his wife together and then apart. See id.;
see also United States v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995)(“We
decline to hold that a thirty minute detention based on reasonable
29
suspicion is, per se, too long.”); Davis, ¶ 36 (a detention that lasted
eighty-five minutes was not too long under the circumstances);
People v. Ortega, 34 P.3d 986, 993 (Colo. 2001)(a detention that
lasted between twenty and thirty minutes was not too long under
the circumstances).
¶ 62 Fourth, the police did not use force “more traditionally
associated with concepts of ‘custody’ and ‘arrest’ than with a brief
investigatory detention.” Polander, 41 P.3d at 705. The officers did
not point their weapons at defendant or at his wife, and they did
not otherwise display them. They did not place defendant in any
restraints, such as handcuffs. They did not grab him by the arm to
direct him, and they did not manhandle him in any way. They did
not question him in the police station behind a locked door or in a
police car. See People v. Pleshakov, 2013 CO 18, ¶ 32 (A suspect
was not in custody for Miranda purposes because, in part, the
police did not “brandish their weapons, use handcuffs, or otherwise
exhibit the type of force generally associated with arrest.”); Cowart,
244 P.3d at 1204; Breidenbach, 875 P.2d at 886. As a result, the
lack of physical restraint suggests that he was not in custody
during the interrogation. See Cowart, 244 P.3d at 1204.
30
¶ 63 The investigating officer never told defendant that he could not
leave or that he would not be released after the interrogation. See
Figueroa-Ortega, ¶ 8. And, even if I assume that the officer directed
defendant to talk with him outside, instead of defendant voluntarily
agreeing to do so, the officer’s direction does not suggest that
defendant was in custody. See Stephenson, 159 P.3d at 622
(“[R]equiring a defendant to exit her vehicle was not custody for
purposes of Miranda.”).
¶ 64 Although I think that the absence of these things from this
case has significant persuasive force, I recognize that their absence
does not automatically mean that defendant was not in custody
when the police questioned him. See Davis, ¶ 21. It is certainly
possible that, even in the absence of these things, a suspect might
reasonably believe that his or her freedom of action has been
curtailed to a degree associated with formal arrest. See id.
¶ 65 Fifth, the investigating officer interrogated defendant outside
his apartment building. “The location of the interaction is
significant.” People v. Cline, 2019 CO 33, ¶ 21 (listing cases in
which police-suspect encounters that occurred outside the
suspect’s home weighed against a determination that the suspect
31
was in custody). This is because “the Miranda warnings were
expressly developed as an added protection against
‘incommunicado interrogation of individuals in a police-dominated
atmosphere.’” Figueroa-Ortega, ¶ 7 (quoting Miranda, 384 U.S. at
445).
¶ 66 “When the interaction occurs at the person’s home or at a
familiar location, it weighs against a finding of custody.” People v.
Garcia, 2017 CO 106, ¶ 21. “[T]he area just outside a familiar
residence can be a neutral location.” Id. The interrogation in this
case therefore did not occur in a “police-dominated setting.” See
Davis, ¶ 29; Begay, ¶ 22 (Because traffic stops and “show-up”
identifications normally occur in public, “the potential that police
will use coercive tactics to compel a confession is diminished.”).
¶ 67 The officers did not show up at night or in the early morning
hours; they came to defendant’s apartment in the daytime. This,
too, weighs against a determination that defendant was in custody
during the interrogation. See Cline, ¶ 22; Pleshakov, ¶ 32 (A
suspect was not in custody for Miranda purposes, in part, when the
encounter occurred in “daylight . . . on a sidewalk, in plain view of
any person who might be passing by.”).
32
¶ 68 Sixth, beyond the initial pat-down search, the officers did not
search defendant, his wife, or his apartment, and they did not
otherwise discover any incriminating evidence. See People v.
Thomas, 839 P.2d 1174, 1178 (Colo. 1992)(a roadside encounter
after a traffic stop became custodial for the purposes of Miranda
when a search of the suspect’s person turned up incriminating
evidence in the form of a marijuana pipe).
¶ 69 Seventh, the presence of three officers “would not, in and of
itself, lead a reasonable person to believe that he or she had been
subjected to restraint akin to a formal arrest.” People v. Alemayehu,
2021 COA 69, ¶ 78. This conclusion is reinforced by the fact that,
on the body camera recording, there is no indication the officers
crowded or surrounded defendant or backed him up against a wall.
See id. at ¶ 78 n.11; Pleshakov, ¶ 32 (The suspect “was not confined
or encircled by police officers.”).
¶ 70 Eighth, it appears to me that the investigating officer tried to
persuade defendant to admit that he had participated in the road
rage incident and that he had cut the victim with a knife. But
“persuasion is not coercion, and the atmosphere and tone of the
interview . . . did not evince any attempt” by the officer to subjugate
33
defendant to his will. People v. Matheny, 46 P.3d 453, 467 (Colo.
2002). “The extent to which a police officer’s tone of voice and
demeanor can be characterized as confrontational and accusatory”
is more relevant to deciding whether the police have engaged in a
consensual encounter with a suspect or an investigatory stop, as
opposed to deciding whether a suspect was in custody for the
purposes of Miranda. Figueroa-Ortega, ¶ 10. “[M]erely confronting
a suspect with the evidence against him and threatening, no matter
how confidently, to charge him with a crime at some point in the
future does not, by itself,” infringe upon his or her liberty, much
less infringe upon it to the degree “associated with a formal arrest.”
Id. And “[a]ny interview of one suspected of a crime by a police
officer will have coercive aspects to it, simply by virtue of the fact
that the police officer is part of a law enforcement system which
may ultimately cause the suspect to be charged with a crime.”
Oregon v. Mathiason, 429 U.S. 492, 495 (1977). The body camera
footage does not show any officer screaming at defendant, calling
him names, belittling him, or threatening him or his wife.
¶ 71 Ninth, defendant did not appear to be cowed, and he did not
act like his will had been overborne. His responses to the
34
investigating officer’s questions were direct, he did not confess to
cutting the victim, and the footage from the body camera does not
suggest that defendant had succumbed to “any allegedly coercive
police influences.” See People v. Clark, 2020 CO 36, ¶ 34 (quoting
Garcia, ¶ 36). He consistently deflected the officer’s questions, and
he accused the victim of being the initial aggressor. See id.¶ 72 He responded to the investigating officer’s questions, many of
which were open-ended, in a narrative form rather than in “short-
form responses to directed questions.” See People v. Sampson,
2017 CO 100, ¶ 27. Although he was animated at times, he did not
appear to be distraught. He seemed calm, and he never told the
police that he wanted the interrogation to end. See People v. Travis,
2016 COA 88, ¶ 17, rev’d on other grounds, 2019 CO 15. He did
not tell the officers to leave, he did not say that he would not speak
with them, and he did not ask for an attorney. See People v.
Theander, 2013 CO 15, ¶ 34.
¶ 73 The officer’s misrepresentation that a camera had recorded the
road rage incident was not so compelling or coercive that, upon
hearing it, defendant confessed to cutting the victim with a knife.
“Ploys to mislead a suspect or lull him into a false sense of security
35
that do not rise to the level of compulsion or coercion to speak are
not within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292,
297 (1990); cf. Frazier v. Cupp, 394 U.S. 731, 739 (1969)(police
misrepresentations, although relevant, were not enough to turn an
otherwise voluntary confession into an involuntary one). “[T]rickery
is not automatically coercion. Indeed, the police commonly engage
in such ruses as suggesting to a suspect that a confederate has just
confessed or that police have or will secure physical evidence
against the suspect.” United States v. Byram, 145 F.3d 405, 408
(1st Cir. 1998).
¶ 74 At this point in my analysis, I am reminded that, while
discussing Fourth Amendment issues, Professor Wayne LaFave
once wrote about the importance of providing the police with clear
rules to “regulate . . . their day-to-day activities.” Wayne R. LaFave,
“Case-By-Case Adjudication” Versus “Standardized Procedures”: The
Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 141. While this is a
Fifth Amendment case involving the issue of whether defendant was
in custody for the purposes of Miranda, I think that Professor
LaFave’s admonition is equally pertinent because our Fifth
Amendment jurisprudence regulates the conduct of police officers
36
in the field when questioning suspects. Our guidance should,
therefore, “be expressed in terms that are readily applicable by the
police in the context of the law enforcement activities in which they
are necessarily engaged.” Id. “A highly sophisticated set of rules,
qualified by all sorts of ifs, ands, and buts and requiring the
drawing of subtle nuances” may be impossible for police officers to
apply. Id. Rather, a “single, familiar standard is essential to guide
police officers, who have only limited time and expertise to reflect on
and balance the social and individual interests involved in the
specific circumstances they confront.” Dunaway v. New York, 442
U.S. 200, 213-14 (1979); see People v. Hufnagel, 745 P.2d 242, 246
n.2 (Colo. 1987)(search and seizure case).
¶ 75 The United States Supreme Court has used this approach
when discussing Miranda. For example, in New York v. Quarles,
467 U.S. 649, 658 (1984), the Court “recognize[d] . . . the
importance of . . . workable rule[s].” And, in Yarborough v.
Alvarado, 541 U.S. 652, 668 (2004), the Court noted that “the
custody inquiry states an objective rule designed to give clear
guidance to the police.” Colorado’s supreme court quoted this
language approvingly in Cowart, 244 P.3d at 1204. Indeed,
37
Colorado’s test for deciding whether a suspect was in custody
during a police interrogation is the same as the United States
Supreme Court’s test. See Matheny, 46 P.3d at 467.
¶ 76 This test is the sort of workable, objective rule that can
reasonably guide the police. It avoids the “ifs, ands, and buts
and . . . the drawing of subtle nuances” that Professor LaFave
warned against because (1) it is an objective test, see Cowart, 244
P.3d at 1203; that (2) asks whether a reasonable person would
believe that he or she “was in police custody of the degree
associated with a formal arrest,” Polander, 41 P.3d at 705; and that
(3) focuses on whether the circumstances in question “are thought
generally to present a serious danger of coercion,” Davis, ¶ 17
(emphasis added)(quoting Howes, 565 U.S. at 508-09). So it is
critically important, when employing this multi-factor, totality-of-
the-circumstances test, to evaluate what the police and the suspect
did and said as well as what they did not do and what they did not
say.
¶ 77 Obviously, the custody test will be applied to an enormous
number of factually different scenarios. Change one fact in a
scenario, and the result could well change. And because the test
38
requires us to review the totality of the circumstances, it must be
flexible enough to recognize the potentially vast differences from
case to case.
¶ 78 There are, for example, cases in which it is abundantly clear
that a suspect was in custody when questioned. Everyone would
agree that, if several officers drew their weapons, forced a suspect
facedown on the ground, handcuffed her, transported her to the
police station in a patrol car, and interrogated her in a small,
windowless room while she was still handcuffed, then the suspect
was in custody.
¶ 79 On the other end of the spectrum, there are cases in which it
is equally evident that the suspect was not in custody when
questioned. Everyone would again agree that, if an officer
approached a suspect on the street, politely asked permission to
speak with him, spoke in a conversational tone of voice, never drew
a weapon, never put his hands on the suspect, never gave him any
orders, never limited his freedom of movement, and immediately
respected his request to terminate the encounter, then the suspect
was not in custody.
39
¶ 80 There are many cases that fall somewhere in between these
two hypotheticals. But, for me, this case is closer to the not-in-
custody end of the spectrum than the in-custody end.
¶ 81 After considering the nonexclusive factors, looking objectively
at the totality of the circumstances, see Cowart, 244 P.3d at 1203,
and recognizing that none of the nonexclusive factors alone is
determinative, see Barraza, ¶ 17, I conclude that a reasonable
person in defendant’s position would not have believed that he or
she was in police custody of the degree associated with formal
arrest, see Polander, 41 P.3d at 705.
¶ 82 When looking at the factors indicating that defendant was not
in custody, I note that the police did not draw their guns or any
other weapons. They did not handcuff him or otherwise restrain
him. Aside from the pat-down search, they did not touch him; they
were never physically aggressive.
¶ 83 The investigating officer interrogated defendant outside his
apartment complex in the daylight, where other people could see
the encounter. The officers did not surround him or stand
unreasonably close to him; they did not back him up against a wall.
40
They did not tell him that he was under arrest, that he was required
to speak with them, or that he could not leave.
¶ 84 The interrogation was mostly matter of fact, and it was not
unreasonably long. The officers did not threaten defendant, yell at
him, or berate him. Defendant did not seem overwhelmed by the
questioning, and, although he admitted punching the victim, he did
not admit that he had cut the victim with a knife. The officers did
not arrest him at the end of the interrogation. And, even if
defendant was not free to leave because he was the subject of an
investigatory detention, he was not restrained to the degree
associated with a formal arrest. See Davis, ¶ 20; Polander, 41 P.3d
at 705.
¶ 85 Turning to the factors that might indicate that defendant was
in custody, the investigating officer was occasionally confrontational
and accusatory when questioning defendant and his wife, twice
raising his voice. It appears from the record that the officer
misrepresented the status of the evidence. The officer first
separated defendant from his wife, then directed defendant to stay
outside while the officer questioned her, and, in doing so, told
defendant that he should wait “a second” before returning to his
41
apartment to use the bathroom. At least two, and, at the end, three
officers were with defendant during the entire encounter.
¶ 86 When considered as a whole, these factors indicate to me, at
the most, that defendant was the subject of an investigatory
detention, not that he was in custody for the purposes of Miranda.
All in all, I think that the factors indicating that defendant was not
in custody are much more persuasive than the factors indicating
that he was in custody, particularly because the latter factors were
not coercive.
¶ 87 I conclude that defendant was not in custody throughout the
entire interrogation and, therefore, that the officer was not required
to advise him of his Miranda rights. This means that I further
conclude that the trial court did not err when it allowed the
prosecution to introduce all the statements that defendant made
during the interrogation into evidence during his trial.
¶ 88 Because I reach these conclusions, I will briefly address the
other four issues that defendant raised in his opening brief.
II. Other Issues
A. Instructions
42
¶ 89 Defendant contends that the trial court should have read the
jury self-defense instructions that he had proposed: the first
concerned whether defendant had acted reasonably; the second
addressed apparent necessity; and the third explained the concept
of no duty to retreat. He then asserts that one reason why the
court should have given the jury the first two instructions was that
he had faced multiple assailants — the victim and a passenger in
the victim’s car — during the road rage incident. I disagree.
¶ 90 “[W]hether to give a particular instruction lies within the trial
court’s discretion, and [an appellate court] will not disturb the
court’s ruling absent a showing that the court abused its discretion
in rejecting a particular instruction.” People v. Gwinn, 2018 COA
130, ¶ 31. An appellate court reviews the question of whether a
trial court accurately instructed the jury on the law de novo.
Pettigrew v. People, 2022 CO 2, ¶ 32.
¶ 91 I conclude that the trial court did not err when it rejected
defendant’s proposed instructions concerning
 whether he had acted reasonably because the self-
defense instructions that the court gave the jury
repeatedly referred to defendant’s “reasonable belief”;
43
 apparent necessity because the self-defense instructions
that the court read to the jury tracked the self-defense
statute, thus incorporating the concept of apparent
necessity, see Beckett v. People, 800 P.2d 74, 78 (Colo.
1990); and
 no duty to retreat because the jury in this case was
instructed that defendant “was legally authorized to use
physical force upon another person without first
retreating” (emphasis added).
¶ 92 Turning to defendant’s contention that the court should have
read the first two instructions to the jury because he faced multiple
assailants, he did not raise it in the trial court. I therefore conclude
that any error that the court may have committed was not plain
because it was not obvious and because it did not so undermine the
trial’s fairness as to cast serious doubt on the fairness of his trial.
People v. Counterman, 2021 COA 97, ¶ 64. I further conclude that
defendant has not shown that the lack of these instructions
contributed to his conviction. Id. at ¶ 65.
¶ 93 The testimony in this case established that the passenger in
the victim’s car never threatened or assaulted either defendant or
44
his wife during the road rage incident. Rather, according to the
statement that defendant’s wife gave the investigating officer, the
passenger helped her to break up the fight. And, as I have observed
above, the court properly instructed the jury on self-defense, which
incorporated the concept of apparent necessity.
B. Prosecutorial Misconduct
¶ 94 Defendant next asserts that the trial court abused its
discretion because it allowed the prosecutor, during closing
argument, to misstate the law of self-defense, to comment on
defendant’s right not to testify, and to shift the burden of proof to
the defense.
¶ 95 I disagree because
 the prosecutor’s comments did not misstate the law
because they properly asked the jury to evaluate the
concept of initial aggressor in the context of the evidence
in the case;
 the prosecutor’s comments about what defendant did
and did not say focused solely on his interrogation by
the investigating officer; the prosecutor did not refer,
45
explicitly or implicitly, to the fact that defendant had not
testified during the trial;
 the prosecutor was entitled to comment on the lack of
evidence, including what defendant did and did not say
during the interrogation conducted by the investigating
officer, see People v. Welsh, 176 P.3d 781, 788 (Colo.
App. 2007); and
 the trial court properly instructed the jury on the
prosecution’s burden of proof, and the prosecutor did
not say that defendant bore any burden during the trial,
including the burden to prove that he had acted in self-
defense.
C. Expert Opinion
¶ 96 Defendant asserts that the trial court committed plain error
when, without any objection from defendant, it allowed a doctor to
testify that the stab wound to the victim’s face created a substantial
risk of serious, permanent disfigurement. Defendant further
submits that the doctor’s testimony usurped the jury’s role in
deciding whether the prosecution had proved, beyond a reasonable
doubt, that the victim had suffered serious bodily injury. This
46
occurred, defendant finishes up, because the doctor offered a legal
opinion about whether the prosecution had proved one of the
elements of second degree assault, with which defendant had been
charged, as opposed to providing a medical diagnosis.
¶ 97 I disagree because
 the doctor testified that his opinion was based on his
medical examination of the victim;
 “[w]hether an injury qualifies as a ‘serious bodily injury’
is a question of fact for the jury,” People v. Baker, 178
P.3d 1225, 1233 (Colo. App. 2007);
 the trial court properly instructed the jury that it could
accept or reject the doctor’s testimony, People v. Pahl,
169 P.3d 169, 182 (Colo. App. 2006); and
 the doctor did not say that defendant was guilty or that
he had caused the victim’s injuries, see People v. Rector,
248 P.3d 1196, 1203 (Colo. 2011).
D. Merger
¶ 98 Defendant contends that, based on the Double Jeopardy
Clause, his convictions for second and third degree assault should
merge because third degree assault is a lesser included offense of
47
second degree assault. The prosecution concedes this contention
because, under the facts of this case, there was only one victim and
only one criminal act. See People v. Baird, 66 P.3d 183, 193 (Colo.
App. 2002). After reviewing the record, I agree.
III. Conclusion
¶ 99 I would affirm defendant’s convictions for second and third
degree assault. I would remand this case to the trial court to merge
the conviction for third degree assault into the conviction for second
degree assault and to amend the mittimus to show that defendant
was only convicted of second degree assault.
48