23CA1175 Peo v Doctor 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1175 Montezuma County District Court No. 22CR162 Honorable Todd Jay Plewe, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Gabrielle D. Juan Doctor,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Benjamin B. Currier, Deputy State Public Defender, Mallory Taub, Deputy State Public Defender, Durango, Colorado, for Defendant-Appellant ¶1 Defendant, Gabrielle D. Juan Doctor, appeals the judgment of
conviction entered after a jury found him guilty of multiple criminal
charges stemming from a car and motorcycle collision resulting in
death. We affirm.
I. Background
¶2 While driving his car, Doctor struck the victim motorcyclist,
Travis Beeson, who later died from his injuries. When police
arrived at the scene, Doctor told them he was turning left into
oncoming traffic, the sun was in his eyes, and he did not see the
motorcycle until it was too late. Doctor was driving with his
nephew and his six-year-old niece, who was unrestrained, in the
backseat, and he admitted that he did not have insurance and was
not wearing the corrective lenses required by his driver’s license.
¶3 After administering horizontal gaze nystagmus (HGN) tests,1
law enforcement arrested Doctor under suspicion of driving while
ability impaired (DWAI). A blood toxicology test taken two hours
after the collision reflected that Doctor’s blood alcohol content (BAC)
was .057 g/100 mL and his THC level was 4.2 ng/mL. Doctor told
1 An HGN test seeks to detect an involuntary jerking of the eyes
associated with impairment.
1 police he had been drinking the night before and into the morning
of the accident. Police found several empty alcohol containers in
his car, as well as a makeshift pipe with burnt marijuana residue in
his driver’s side door.
¶4 The prosecution charged Doctor with vehicular homicide
(DWAI); criminally negligent homicide; DWAI; child abuse
(negligence, no injury); careless driving resulting in death;
compulsory insurance; failure to yield right of way; and no child
restraint. A jury acquitted him of vehicular homicide and criminally
negligent homicide but found him guilty of the remaining charges.
¶5 Doctor appeals, arguing that the trial court erred by
(1) denying his motion to suppress evidence obtained during a
roadside sobriety test and (2) allowing the prosecution to display an
in-life photograph of the decedent at trial. Doctor also claims the
prosecutor engaged in misconduct during closing argument.
II. Motion to Suppress
A. Applicable Law
¶6 Appellate review of a trial court’s order on a motion to
suppress presents mixed questions of law and fact. People v.
Kessler, 2018 COA 60, ¶ 16. We review the trial court’s factual
2 findings for clear error, but we review de novo the court’s legal
conclusions. Id.
¶7 A roadside sobriety test is a full search in the constitutional
sense and, as relevant here, can be administered when the driver
voluntarily consents to perform the test. People v. Young, 2024
COA 1, ¶ 11. To assess whether a person’s consent was voluntary,
we consider the totality of the circumstances and apply an objective
test to determine whether the defendant could reasonably have
construed the police conduct to be coercive. Id. at ¶ 12. Consent is
involuntary when it results from duress, coercion, or any other form
of undue influence exercised by the police against the defendant.
Id. at ¶ 13.
¶8 Police officers are entitled to conduct an investigatory stop of a
motorist if they have reasonable suspicion that the motorist has
committed or is about to commit a crime. People v. Ramos, 13 P.3d
295, 297 (Colo. 2000). However, “once the purpose of an initially
valid investigatory stop has been satisfied, any further detention or
questioning of the driver of a vehicle constitutes unreasonable and
therefore unlawful detention prohibited by the Fourth Amendment.”
People v. Redinger, 906 P.2d 81, 85 (Colo. 1995).
3 B. Additional Facts
¶9 Officer Sharp and Sergeant Edwards responded to the scene of
the accident. Sharp was new to the force, while Edwards had years
of experience. Edwards smelled alcohol while standing with Doctor
and his family and directed Sharp to proceed with a DUI
investigation.
¶ 10 Sharp asked Doctor if he would be willing to perform voluntary
roadside sobriety maneuvers. Doctor declined to perform the walk-
and-turn and one-leg stand test due to a knee injury, but consented
to a HGN test. Sharp did not see any signs of impairment from the
test.
¶ 11 Edwards, unsure about Sharp’s assessment, asked Doctor if
he could look at his eyes “real fast.” Doctor agreed, and after
administering a second HGN test, Edwards observed four out of six
clues showing impairment.
C. Discussion
¶ 12 Doctor argues the trial court erred by concluding that his
consent to the second HGN test was knowing and voluntary. He
further argues that because the police’s reasonable suspicion of
him dissipated after he satisfactorily completed the first HGN test,
4 the second HGN test exceeded the bounds of a permissible
investigatory stop. We are not persuaded.
¶ 13 Doctor concedes that he consented to the first HGN test
administered by Sharp. But he argues that his consent to the
second HGN was not knowing because he did not know Edwards
was asking to conduct further sobriety examinations. Rather, he
says he understood Edwards’ request to look in his eyes as a
request to observe him, not to subject him to additional testing.
That is, he does not disagree that he uttered words of consent, but
he argues that he did not consent to testing.
¶ 14 The trial court disagreed, finding that “[i]n the context of the
situation, any reasonable person would have understood that []
Edwards was asking to repeat the HGN test that [] Sharp had
performed.” The record supports this finding. The trial court
considered testimony from both officers and reviewed footage
obtained from body cameras they wore during their interactions
with Doctor. It noted that Doctor was present when Edwards asked
Sharp if he could double check the results of the first HGN, and
Doctor “should have heard this interaction.” Also, Edwards’ request
to look at Doctor’s eyes a second time came immediately after Sharp
5 completed the first HGN test.2 We agree with the trial court that
this context should have indicated to Doctor that Edwards sought
to continue the roadside sobriety test that was already in progress.
Accordingly, we conclude Doctor’s consent to the second HGN test
was voluntary.
¶ 15 Doctor next asserts that the second HGN test exceeded the
bounds of a permissible investigatory stop because, after Sharp saw
no signs of impairment, the police no longer had reasonable
suspicion to conduct their investigation. We disagree.
¶ 16 As an initial matter, as we just discussed, Doctor consented to
the second test, thereby making it a consensual interaction. That
is, the police had permission to detain Doctor via his consent.
¶ 17 In any event, based on the undisputed body camera
recordings, the trial court found that “[a]lmost directly after Officer
Sharp completed the HGN test, Sgt[.] Edwards first asked Officer
Sharp what result he got from the HGN and when Officer Sharp
said ‘good,’ Sgt. Edwards asked if Officer Sharp minded if he
2 Doctor does not dispute the trial court’s summary of the body
camera recordings. Because the recordings are omitted from the record on appeal, we must assume they support the trial court’s findings. See People v. Schupper, 2014 COA 80M, ¶ 31 n.3.
6 checked.” The court credited Edwards’ testimony that he doubted
Sharp’s initial conclusion, noting that “Edwards was acting in a
training role for a much less experienced officer,” and “[i]t is not
unreasonable to believe that [he] was more attuned to perceiving
evidence” than Sharp.
¶ 18 Based on this record, we conclude the second HGN test was
part of a reasonable investigatory stop. Sharp’s statement to
Edwards that the first HGN test was “good” was part of their
ongoing investigation, not a statement to Doctor that the
investigation had ended. Viewed in that context, even after the first
HGN test, the police continued to have reasonable suspicion that
Doctor had committed a crime. See Ramos, 13 P.3d at 297.
Because the purpose of the investigatory stop was ongoing, we
conclude the second HGN test was part of a reasonable detention.
See Redinger, 906 P.2d at 85.
III. Admission of In-Life Photograph
¶ 19 Generally, evidence is admissible if it is relevant — that is, if it
tends to make the existence of any consequential fact more or less
probable than it would be without the evidence. CRE 401; CRE
7 402; Rojas v. People, 2022 CO 8, ¶ 25. But relevant evidence must
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. CRE 403. Before admitting “in-life”
photographs of homicide victims, the trial court must apply CRE
403’s balancing test.
¶ 20 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. McClelland, 2015 COA 1, ¶ 40. An abuse of
discretion occurs when a trial court’s ruling is manifestly arbitrary,
unreasonable, or unfair. Id. We review nonconstitutional errors
that were preserved by objection for harmless error. Hagos v.
People, 2012 CO 63, ¶ 12. Under this standard, an erroneous
evidentiary ruling does not require reversal unless it substantially
influenced the verdict or affected the fairness of the trial
proceedings. Id.
B. Additional Facts
¶ 21 The victim’s father testified at trial. During his testimony, and
over defense counsel’s objection, the trial court allowed the
prosecution to display for the jury a photograph of the victim as he
appeared months before the accident — smiling with Christmas
lights behind him. The court concluded that because the jury had
8 already seen a picture of the injured victim at the accident, the in-
life photograph was probative “to see what he looked like before
that.”
¶ 22 Following the testimony, defense counsel moved for a mistrial
because two jurors were crying after the photograph was displayed.
The trial court denied the motion. It also allowed the prosecutor to
display the in-life photograph during closing argument, again over
defense counsel’s objection.
¶ 23 As noted, CRE 403 requires a court to conduct a balancing
test to weigh the probative value of evidence against the risk of
unfair prejudice. While the trial court identified some probative
value for the evidence (beyond that argued by the prosecution), it
did not explicitly address the danger of unfair prejudice. But even if
we assume without deciding that the photograph’s risk of unfair
prejudice outweighed its probative value, we conclude the error was
harmless.
¶ 24 Recall that the jury acquitted Doctor of vehicular homicide and
criminally negligent homicide. “While a split verdict does not
conclusively decide the harmlessness question, it is ‘an indication
9 that the jurors exercised some discretion in their deliberations’ and
that the error did not cause them to ‘blindly convict the defendant.’”
Washington v. People, 2024 CO 26, ¶ 35 (citation omitted).
¶ 25 Doctor points to McClelland to urge us to reach a different
conclusion. There, the division concluded that the court’s error in
admitting in-life photographs under CRE 403 was not harmless,
despite the jury’s split verdict, because the photographs may have
persuaded the jury to convict McClelland of a different offense
(reckless manslaughter). See McClelland, ¶ 56 n.4. But even the
McClelland division recognized that unfair prejudice may be limited
when there is a split verdict, and it found reversible error based on
the photographs’ influence “along with” a plainly erroneous self-
defense jury instruction. Id. We have found no similarly reversible
error here, and we see no similar risk of unfair prejudice because
Doctor’s convictions were for counts wholly different from the
homicide counts and supported by independently strong evidence.
For example:
• Undisputed evidence established that Doctor turned left
into oncoming traffic, did not have insurance, and did
not have his child in a booster seat, supporting his
10 convictions for failure to yield, compulsory insurance, no
child restraint, child abuse. In fact, during closing
argument, defense counsel made no attempt to argue
that Doctor was not guilty of these offenses.
• Substantial undisputed evidence also supported the
careless driving resulting in death conviction. That the
collision caused the victim’s death was undisputed, and
the jury heard evidence that Doctor drove without
wearing his prescription lenses, turned into oncoming
traffic while the sun was in his eyes, and failed to block
the sun with his hand so he could see. It also heard that
Doctor reported he had been drinking the night before
and into the morning of the collision. Indeed, defense
counsel acknowledged during closing argument that
Doctor made some mistakes on the day of the accident,
including by failing to shield his eyes from the sun.
• Substantial evidence likewise supported the DWAI
conviction. A person commits DWAI if they “drive[] a
motor vehicle or vehicle while impaired by alcohol or by
one or more drugs, or by a combination of alcohol and
11 one or more drugs.” § 42-4-1301(1)(b), C.R.S. 2024. Two
hours after the accident, Doctor’s BAC was .057 and he
had THC in his system. An expert testified that it was
possible this degree of impairment would prevent safe
operation of a motor vehicle and that the effects of THC
and alcohol increase one another. The jury was also
instructed to presume that Doctor was not under the
influence of alcohol if, at the time of the accident, he had
.05 or less grams of alcohol per one hundred milliliters of
blood.
¶ 26 Considering the jury’s split verdict in combination with the
strong evidence of Doctor’s guilt for the nonhomicide offenses, we
conclude that there is no reasonable probability the jury’s sympathy
for the victim substantially influenced the verdict or affected the
fairness of Doctor’s trial. See Hagos, ¶ 12.
IV. Prosecutorial Misconduct
¶ 27 A prosecutor has wide latitude during closing argument to
argue all reasonable inferences that may be drawn from evidence in
the record. People v. Rhea, 2014 COA 60, ¶ 46. However, a
12 prosecutor may not make comments that amount to expert
testimony, refer to facts not in evidence, or make arguments that
are calculated to appeal to the jury’s prejudices. See Domingo-
Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005); People v. Davis,
280 P.3d 51, 54 (Colo. App. 2011).
¶ 28 We review a claim of prosecutorial misconduct in two steps.
Rhea, ¶ 40. We first determine whether misconduct occurred based
on the totality of the circumstances. Id. If we conclude it did, we
determine whether it warrants reversal according to the proper
standard of review. Id.
¶ 29 We review a preserved claim of prosecutorial misconduct for
an abuse of discretion, People v. Monroe, 2018 COA 110, ¶ 11, aff’d,
2020 CO 67, and “will only reverse if there is a reasonable
probability that the error contributed to the defendant’s conviction.”
Id.
B. Discussion
¶ 30 Doctor argues he is entitled to a new trial because, during
closing argument, the prosecutor held himself out as an expert in
retrograde extrapolation (a method of determining a person’s BAC
at a point in time earlier than the draw) by opining that Doctor’s
13 likely BAC at the time of the accident was between .077 and .107.
He also argues the prosecutor argued facts not in evidence by
arguing that Doctor used marijuana while children were in the
vehicle. And he asserts the prosecutor attempted to inflame the
jury’s passions by displaying the in-life photograph of the victim
and arguing that the victim “lost more than his life. His parents
lost the ability to see him get married, have kids, have a successful
life.”
¶ 31 At the outset, we disagree that the prosecutor’s argument
regarding the likely range of Doctor’s BAC at the time of the
accident amounted to improper expert testimony. These comments
were explicitly based on an expert toxicologist’s testimony that
Doctor had a BAC of .057 g/100 mL two hours after the accident,
and the body consumes alcohol at a rate of .01 to .025 g/100 mL
per hour. Multiplying each end of the range of rate of consumption
by two (because Doctor’s blood was drawn two hours after the
accident), results in the precise range argued by the prosecutor:
14 .077 to .107 g/100 mL.3 Therefore, these comments were
reasonable inferences drawn from the evidence. See Rhea, ¶ 46.
¶ 32 We agree with Doctor that the prosecutor’s other comments
were improper. After Doctor’s initial objection to the prosecutor’s
statement that Doctor chose “to use marijuana while he has his
family in the vehicle,” the trial court ruled there was no evidence
that Doctor used marijuana while driving. Despite this ruling, the
prosecutor argued again during rebuttal closing that Doctor decided
“to get behind the wheel of that car to begin with and to put
children into the car and then to use drugs.” This was an improper
reference to facts not in evidence.4 See Davis, 280 P.3d at 52.
¶ 33 Likewise, the prosecutor’s references to the victim’s missed
opportunities in life improperly suggested that the jury should
3 Low end of the range: .01 x 2 (hours) = .02 + .057 = .077
g/100mL. High end of the range: .025 x 2 (hours) = .05 + .057 = .107 g/100mL. 4 The parties disagree as to whether Doctor preserved his objection
to the prosecutor’s second misstatement of the evidence. But we need not decide this issue, because we conclude the prosecutor’s comment was ultimately harmless, so it cannot have been plain. See Hagos v. People, 2012 CO 63, ¶ 14 (plain error must impair the reliability of the judgment of conviction to a greater degree than under harmless error to warrant reversal).
15 reach its verdict out of sympathy for the victim, rather than based
on the evidence. See People v. McBride, 228 P.3d 216, 223 (Colo.
App. 2009) (prosecutors may not suggest that guilty verdicts are
necessary to do justice for a sympathetic victim). As already
discussed, the impropriety of these comments was further
exacerbated by the prosecutor’s display of the victim’s in-life
photograph during closing argument.
¶ 34 Nevertheless, we cannot conclude these comments warrant
reversal. As described above, the evidence that Doctor failed to
yield, lacked insurance, failed to use a child restraint, and engaged
in negligent child abuse was undisputed, and the evidence of
careless driving resulting in death and DWAI was strong. The
prosecutor’s improper comments were relatively brief and isolated,
and the jury’s split verdict indicates that it was able to fairly
consider the evidence despite them. See Washington, ¶ 35.
¶ 35 Moreover, the trial court properly instructed the jury that
there was no evidence that Doctor used marijuana with children in
the vehicle, and it told the prosecutor to move on from his
references to the victim’s missed opportunities. See People v.
Tillery, 231 P.3d 36, 43 (Colo. App. 2009) (we presume the jury
16 followed the court’s curative instructions), aff’d sub nom. People v.
Simon, 266 P.3d 1099 (Colo. 2011). The trial court also instructed
the jury that “[s]ympathy and prejudice have no place in a criminal
trial,” and “[t]his case must be decided only on the evidence
presented.” Viewing the prosecutor’s improper comments in the
context of the record as a whole, we discern no reasonable
probability that prosecutorial misconduct contributed to Doctor’s
convictions. See Monroe, ¶ 11.
V. Disposition
¶ 36 The judgment is affirmed.
JUDGE HARRIS and JUDGE GROVE concur.