23CA0517 Peo v Lorenz 04-30-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0517 El Paso County District Court No. 21CR3965 Honorable Chad Miller, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Keith Allen Lorenz,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE LIPINSKY Welling and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 30, 2026
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Keith Allen Lorenz appeals his convictions for vehicular
homicide, driving under the influence (DUI), and DUI per se. We
affirm in part and reverse in part.
I. Background
¶2 A jury could have reasonably found the following facts from
the evidence introduced at trial.
¶3 A truck drove off a highway and rolled over multiple times.
The two individuals in the truck were ejected, and one died at the
scene. Several people witnessed the crash, although they did not
see who had been driving. Witnesses observed evidence of alcohol
at the scene.
¶4 At the crash site, state troopers found the survivor of the
crash injured and “impaired.” The troopers also found several
bottles of alcohol and two marijuana cigarettes near and inside the
truck, and they detected “a strong odor of alcohol coming from
within the [truck].”
¶5 The survivor was transported to a hospital, where Trooper
Alvaro Acuna questioned him after identifying him as Lorenz.
Trooper Acuna asked Lorenz who had been driving the truck when
it crashed. Lorenz at first said that he and the victim “were both
1 driving.” He gave varying answers to Trooper Acuna’s further
questions intended to determine who had been behind the wheel:
• He’d “be lying if that [was] something [he] could tell
[Trooper Acuna].”
• He was “in the passenger seat most of the time.”
• He would not tell Trooper Acuna who had been driving.
• He did not want “to incriminate [him]self.”
¶6 Lorenz finally admitted that he had been driving at the time of
the crash.
¶7 In addition, Trooper Acuna noticed “signs of impairment”
when he spoke with Lorenz, including that Lorenz’s eyes were
“incredibly watery and bloodshot,” his speech was “slurred and at
many times inaudible,” and his breath had “an odor of an unknown
alcoholic beverage.” In response to Trooper Acuna’s questions
about whether he had been drinking, Lorenz said that he had
drunk “a [thirty-two] ounce beer” containing “25% [alcohol]” and
that, over the past twenty-four hours, “he had about one case of
alcohol.”
¶8 Trooper Acuna also noticed that Lorenz’s left shoulder had a
rectangular bruise, which Trooper Acuna recognized as “consistent
2 with injuries sustained after wearing a seat belt [during] a crash.”
Lorenz said he had been wearing a seatbelt at the time.
¶9 After Lorenz admitted that he had been driving at the time of
the crash, he became “emotional” and asked if the victim had died.
Trooper Acuna told Lorenz the victim had died and advised him of
his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478-79
(1966).
¶ 10 After Lorenz waived his Miranda rights, he became
“increasingly emotional” and told Trooper Acuna he had “picked up
[the victim] way beyond the legal limit,” that he “was not right while
he was driving,” and that marijuana and cocaine would be found in
his system. In addition, while at the hospital, Lorenz failed a
horizontal gaze nystagmus test, a standardized field sobriety test.
¶ 11 After Lorenz said he had been driving, Trooper Acuna arrested
him and obtained blood samples.
¶ 12 The blood samples tested positive for marijuana, but not
cocaine, and showed that his blood alcohol content (BAC) was
0.188 grams per 100 milliliters.
¶ 13 In the meantime, Trooper Joshua Yoder visited the liquor store
at which Lorenz and the victim had purchased alcoholic beverages
3 about an hour before the crash. Surveillance video from the store
shows Lorenz and the victim leaving, and the victim entering the
truck on the passenger side. The video shows Lorenz walking
toward the driver’s side door before the truck drives off.
¶ 14 Lorenz was charged with one count of vehicular homicide, one
count of DUI, and one count of DUI per se.
¶ 15 The only contested issue at trial was whether Lorenz had been
driving at the time of the crash.
¶ 16 The prosecution presented the following evidence to prove that
Lorenz had been driving at the time:
• his statements at the hospital;
• the bruise on his left shoulder;
• Lorenz’s injuries, which were primarily on the left side of
his body, correlated with evidence that the truck rolled
onto the driver’s side;
• the injuries on the right side of the victim’s body;
• the placement of the truck’s seats, which were consistent
with the height differential between Lorenz and the taller
victim; and
• the liquor store surveillance video.
4 ¶ 17 The jury convicted Lorenz as charged. The trial court imposed
a controlling sentence of ten years in the custody of the Department
of Corrections.
¶ 18 On appeal, Lorenz first contends that his statements at the
hospital were inadmissible because the totality of the circumstances
shows that (1) a reasonable person in Lorenz’s position would have
understood he was in custody for Miranda purposes before Trooper
Acuna gave Lorenz the Miranda advisement; (2) the officers coerced
Lorenz into incriminating himself; (3) Lorenz’s Miranda waiver was
involuntary; (4) Lorenz’s statements following his Miranda
advisement were the product of an unlawful two-step interrogation;
and (5) Lorenz clearly invoked his right to remain silent. Second,
Lorenz contends that, because his statement that he did not want
to incriminate himself was inadmissible, the prosecutor committed
misconduct by referring to it during closing argument. Third,
Lorenz contends that the trial court abused its discretion by
excluding information regarding the victim’s three prior DUI or
driving while ability impaired (DWAI) convictions, which Lorenz
asserts were admissible alternate suspect evidence. And fourth,
5 Lorenz contends that his DUI and DUI per se convictions must
merge with his vehicular homicide conviction.
II. Analysis
A. Lorenz’s Statements at the Hospital
¶ 19 “To protect a suspect’s Fifth Amendment right against self-
incrimination, Miranda prohibits the prosecution from introducing
in its case-in-chief any statement, whether inculpatory or
exculpatory, procured by custodial interrogation, unless the police
precede their interrogation with certain warnings.” Mumford v.
People, 2012 CO 2, ¶ 12, 270 P.3d 953, 956 (quoting People v.
Matheny, 46 P.3d 453, 462 (Colo. 2002)). “Miranda protections
apply only where ‘a suspect is subject to both custody and
interrogation.’” Id. (quoting Effland v. People, 240 P.3d 868, 873
(Colo. 2010)). There is no dispute that Lorenz was interrogated at
the hospital.
1. Additional Facts
¶ 20 Defense counsel filed a pretrial motion to suppress Lorenz’s
statements at the hospital. Defense counsel argued, as relevant
here, that (1) Trooper Acuna did not timely advise Lorenz of his
6 Miranda rights; (2) Lorenz’s statements at the hospital were
involuntary; and (3) he did not voluntarily waive his Miranda rights.
¶ 21 The court heard argument on the motion at a suppression
hearing. At the hearing, Trooper Acuna testified as follows.
¶ 22 He arrived at the hospital with Sergeant Dan Brusuelas. Both
Sergeant Brusuelas and Trooper Acuna were wearing their Colorado
State Patrol uniforms and had their handguns and tasers holstered.
Once at the hospital, the officers waited about thirty to forty-five
minutes to speak with Lorenz while medical professionals treated
him.
¶ 23 When the officers met with Lorenz, he was lying in a hospital
bed, connected to medical equipment, and wearing a neck brace.
Although Trooper Acuna observed that Lorenz was in “some type of
visible pain,” he was “conscious,” “alert,” and able to “effectively
communicate.”
¶ 24 Trooper Acuna questioned Lorenz while Sergeant Brusuelas
observed and searched Lorenz’s belongings for evidence. Sergeant
Brusuelas did not ask Lorenz any questions and was not in the
hospital room for some of the time that Trooper Acuna spoke with
Lorenz.
7 ¶ 25 Because Lorenz was lying in a room that was only fifteen feet
wide by approximately twenty-five feet long, Trooper Acuna stood
“right by” Lorenz’s right or left shoulder while speaking with him.
When Sergeant Brusuelas was in the room, he stood near the door,
which remained open while Trooper Acuna spoke to Lorenz,
although a curtain over the door remained closed for Lorenz’s
privacy.
¶ 26 Trooper Acuna was in Lorenz’s hospital room for about two
hours. He did not continuously question Lorenz during that time;
the medical staff moved Lorenz for treatment and then returned
him to the room. Neither Trooper Acuna nor Sergeant Brusuelas
followed Lorenz when the medical staff moved him.
¶ 27 Trooper Acuna testified that, while questioning Lorenz, he did
not (1) threaten Lorenz; (2) restrain Lorenz; (3) make a gesture
toward his handgun; or (4) confront Lorenz with evidence that
contradicted his statements. Trooper Acuna said he spoke to
Lorenz in a “soft and calm tone.” At no time did Lorenz say he
(1) did not want to talk to Trooper Acuna; (2) did not want Trooper
Acuna in the hospital room; or (3) wanted to consult with an
attorney.
8 ¶ 28 Defense counsel pointed to the following facts in support of his
argument that Lorenz had been in custody for Miranda purposes
when Trooper Acuna questioned him:
• the hospital room was small;
• Trooper Acuna and Sergeant Brusuelas stood between
Lorenz and the hospital room door;
• the curtain that covered the door remained closed;
• Lorenz was attached to medical equipment;
• he was immobile;
• he was “visibly upset”;
• Trooper Acuna never told Lorenz he was free to leave;
• Trooper Acuna challenged Lorenz’s memory; and
• Trooper Acuna asked him leading questions concerning
whether he had been driving at the time of the crash.
¶ 29 In addition, defense counsel argued that all of Lorenz’s
statements at the hospital had been involuntary because of his
physical condition and that Lorenz’s later waiver of his Miranda
rights was invalid.
¶ 30 The trial court denied Lorenz’s motion.
9 2. Lorenz’s Preserved Contentions
a. Standard of Review
¶ 31 Lorenz preserved his contentions that he was in custody
before Trooper Acuna gave him his Miranda advisement and that
the officers coerced him into incriminating himself. Contrary to the
People’s argument, Lorenz also preserved his contention regarding
the voluntariness of his Miranda waiver because he raised a general
challenge to its validity in a written pretrial motion, he developed
that challenge at a suppression hearing, and the trial court ruled on
whether his waiver was involuntary. See People v. Dinapoli, 2015
COA 9, ¶ 20, 369 P.3d 680, 683 (“A pretrial motion may preserve an
evidentiary objection for appellate review if the moving party fairly
presents the issue to the court and the court issues a definitive
ruling.”). Further, contrary to the People’s argument, Lorenz
preserved his argument that the officers allegedly used an
impermissible two-step investigation method.
¶ 32 Although Lorenz did not refer the trial court to Verigan v.
People, 2018 CO 53, 420 P.3d 247, the case establishing Colorado’s
legal standard for determining whether an officer used this type of
investigation method, he nonetheless argued that the officers’
10 violation of his constitutional rights in eliciting his pre-Miranda
statements tainted his post-Miranda statements, in violation of
Missouri v. Seibert, 542 U.S. 600 (2004). See People v. Melendez,
102 P.3d 315, 322 (Colo. 2004) (“We do not require that parties use
‘talismanic language’ to preserve particular arguments for
appeal . . . .” (quoting People v. Syrie, 101 P.3d 219, 223 n.7 (Colo.
2004))).
¶ 33 “The trial court’s ruling on [a] motion to suppress presents a
mixed question of law and fact.” People v. Webb, 2014 CO 36, ¶ 9,
325 P.3d 566, 569. Under this standard, we defer to “the trial
court’s findings of fact if they are supported by competent evidence
in the record,” but we review de novo “the trial court’s legal
conclusions.” Id.
¶ 34 In addition, whether Lorenz’s Miranda waiver and statements
at the hospital were voluntary is “a legal question and is reviewed
de novo.” Effland, 240 P.3d at 878.
b. Lorenz Was Not in Custody When He Made His Pre-Miranda Statements
¶ 35 “A person is in custody for Miranda purposes if [he] has been
formally arrested or if, under the totality of the circumstances, a
11 reasonable person in the suspect’s position would have felt that
[his] freedom of action had been curtailed to a degree associated
with formal arrest.” People v. Garcia, 2017 CO 106, ¶ 20, 409 P.3d
312, 317. A “custody assessment ‘depends on the objective
circumstances of the interrogation, not on the subjective views
harbored by either the interrogating officers or the person being
questioned.’” Mumford, ¶ 15, 270 P.3d at 957 (quoting Stansbury v.
California, 511 U.S. 318, 323 (1994)).
¶ 36 In contrast to a custodial detention, an investigative detention
occurs “when a reasonable person would not have felt ‘free to leave’
or otherwise terminate an encounter with law enforcement.” People
v. Barraza, 2013 CO 20, ¶ 17, 298 P.3d 922, 926 (quoting People v.
Stephenson, 159 P.3d 617, 620 (Colo. 2007)). “A ‘custodial’
detention entails a greater restriction on freedom than that
associated with investigative detentions under the Fourth
Amendment.” People v. Pleshakov, 2013 CO 18, ¶ 20, 298 P.3d
228, 233. “[A]lthough 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.” People v. Davis, 2019 CO 84, ¶ 20, 449 P.3d
12 732, 738 (quoting People v. Breidenbach, 875 P.2d 879, 885 (Colo.
1994)).
¶ 37 In People v. Sampson, a uniformed officer questioned and
confronted the defendant while he was hooked up to medical
equipment in a small hospital room in which the officer physically
blocked the door. 2017 CO 100, ¶¶ 27-30, 404 P.3d 273, 278-79.
The supreme court held that the defendant was not in custody for
Miranda purposes because the officer’s exchange with the defendant
remained noncoercive — the officer asked open-ended questions
that elicited answers in narrative form and did not make
accusations; the defendant was not upset; the officer never
restrained the defendant or referenced his weapon; the defendant
never sought to terminate the conversation; and medical staff freely
entered and left the room during the questioning. Id.
¶ 38 Similarly, in People v. Theander, the supreme court held that
the hospitalized defendant was not in custody for Miranda purposes
even though the officers questioned her while she was confined to a
hospital bed, they stood close to the bed, and they expressed their
disbelief at parts of her story. 2013 CO 15, ¶¶ 27-37, 295 P.3d
960, 968-69. The supreme court focused on the key facts that the
13 officers repeatedly told the defendant she was not in custody, wore
plain clothes, did not openly carry weapons, maintained a polite
and conversational tone, and asked open-ended questions. Id.
Further, the defendant’s limited mobility was attributable to her
medical condition, and the door to her hospital room remained open
while the defendant spoke with the officers. Id. The supreme court
concluded that the trial court erred by “placing considerable weight
on the fact that the officers subjectively believed that [the
defendant] was a suspect” because the defendant was “unaware” of
the officers’ “subjective thoughts and beliefs.” Id. at ¶ 23, 295 P.3d
at 967.
¶ 39 In contrast to Sampson and Theander, the supreme court held
that the hospitalized defendant in Effland was in custody for
Miranda purposes because the overall circumstances were
coercive — the defendant was handcuffed at the crime scene, was
accompanied to the hospital by an officer, saw a uniformed officer
stationed outside his room at all times, and was emotionally
distraught throughout the questioning. 240 P.3d at 871-76.
Moreover, the two interrogating officers excluded the defendant’s
daughter from the room, closed the door to the room, sat extremely
14 close to the defendant, positioned themselves between the
defendant and the only exit, structured their questioning so the
defendant would agree with their version of events, and repeatedly
ignored the defendant’s clear invocations of his right to remain
silent and to speak with an attorney. Id.
¶ 40 Finally, like the defendant in Effland, the defendant in People
v. Minjarez was in custody for Miranda purposes because the
officers escorted the defendant to a private hospital conference
room, a nurse closed the door to the room, the officers seated
themselves between the defendant and the only exit, the defendant
was visibly emotional and cried throughout the questioning, the
officers confronted the defendant with supposed evidence that
contradicted the defendant’s story, and the lead officer framed his
statements so the defendant merely agreed with the officer’s version
of events rather than give a narrative account. 81 P.3d 348, 350‑57
(Colo. 2003).
¶ 41 Consistent with the analyses in these cases, the following
factors indicate that Lorenz was not in custody before his Miranda
advisement:
• He was not handcuffed at the crash site.
15 • An officer did not accompany him during his
transportation to the hospital.
• At no point did officers sit outside Lorenz’s hospital room.
• The only restraints on Lorenz were medical equipment.
• Officers did not escort Lorenz to a private room for
questioning; instead, they questioned him in the hospital
room with the door open.
• Trooper Acuna spoke in a conversational tone and asked
open-ended questions concerning Lorenz’s identity and
the cause of the crash.
• The officers did not make any gestures toward their
weapons.
• Trooper Acuna did not confront Lorenz with evidence
challenging Lorenz’s denial that he had been driving —
he did not say he disbelieved Lorenz and did not point
out that Lorenz’s left shoulder bruise was consistent with
pressure from the driver’s side seatbelt — and he did not
frame his questions to force Lorenz to agree with his
statements.
16 • Trooper Acuna asked Lorenz direct questions, and the
tone of the conversation remained calm.
• Lorenz did not try to stop Trooper Acuna from asking
questions.
• Medical staff interrupted the questioning on multiple
occasions.
• Neither officer followed Lorenz out of the room when
medical staff moved him for treatment.
¶ 42 The factors supporting a determination that Lorenz was in
custody before Trooper Acuna provided the Miranda advisement are
the following:
• Two uniformed officers were in Lorenz’s room with their
weapons holstered.
• At times, Sergeant Brusuelas blocked the door while
Trooper Acuna stood close to Lorenz.
• The curtain covering the door remained closed.
• Trooper Acuna asked Lorenz direct questions regarding
whether he was the driver and how much he had had to
drink.
17 • Neither officer told Lorenz that he was not in custody or
that he could stop the questioning.
• The questioning lasted for about two hours.
¶ 43 But Sergeant Brusuelas was not present throughout Trooper
Acuna’s questioning, and Sergeant Brusuelas did not continuously
block the door. In addition, like the officer in Theander, Trooper
Acuna stood close to Lorenz only so he could easily communicate
with him. See Theander, ¶ 30, 295 P.3d at 968.
¶ 44 After considering these facts and the case law discussed
above, we conclude that any reasonable person in Lorenz’s position
would not have believed he was being arrested or detained to a
degree associated with a formal arrest when Trooper Acuna began
his questioning. Under the totality of the circumstances, any
reasonable person would have recognized that Trooper Acuna did
not have sufficient evidence at the time to believe that a crime had
been committed, much less that Lorenz was responsible for that
crime. See Garcia, ¶ 20, 409 P.3d at 317. The evidence shows that
Trooper Acuna was conducting a preliminary investigation into the
crash until Lorenz admitted he had been driving. As soon as Lorenz
made this admission, Trooper Acuna’s preliminary investigation
18 concluded, Lorenz became a suspect, and Trooper Acuna read
Lorenz his Miranda rights.
¶ 45 Therefore, we hold that the trial court did not err by
determining that Lorenz’s questioning was not custodial and,
therefore, his pre-Miranda statements were admissible.
c. The Officers Did Not Coerce Lorenz into Incriminating Himself
¶ 46 For the same reasons, there is no evidence that the officers
coerced Lorenz into incriminating himself. “A confession or
inculpatory statement is involuntary if coercive governmental
conduct played a significant role in inducing the statement.” People
v. Gennings, 808 P.2d 839, 843 (Colo. 1991). “Coercion includes
physical abuse, threats, and exploitation of a person’s weakness by
psychological intimidation.” People v. Zadra, 2013 COA 140, ¶ 31,
396 P.3d 34, 44, aff’d, 2017 CO 18, 389 P.3d 885; see People v.
Humphrey, 132 P.3d 352, 361 (Colo. 2006) (“Ultimately, the test of
voluntariness is whether the individual’s will has been overborne.”
(quoting People v. Miranda-Olivas, 41 P.3d 658, 661 (Colo. 2001))).
¶ 47 “The voluntariness doctrine requires a two-step inquiry.”
People v. Ramadon, 2013 CO 68, ¶ 20, 314 P.3d 836, 842. “First,
19 the police conduct must have been coercive,” and “[s]econd, the
coercive police conduct must have played a significant role in
inducing the statements.” Id.
¶ 48 As noted above, the evidence shows that the tone of Lorenz’s
conversation with Trooper Acuna remained calm, neither officer
physically restrained Lorenz or made threats or promises to him,
and Trooper Acuna did not exert his authority over Lorenz. In
addition, the medical personnel treating Lorenz, not the officers,
prevented him from leaving the hospital room. Thus, we need not
reach the second step of the voluntariness inquiry, see id., and we
hold that the officers did not coerce Lorenz into admitting he was
d. Lorenz’s Miranda Waiver Was Voluntary
¶ 49 We next turn to the admissibility of the incriminatory
statements that Lorenz made after Trooper Acuna read Lorenz his
Miranda rights. This analysis focuses on whether he voluntarily
waived those rights.
¶ 50 A defendant “may waive effectuation of [the] rights” contained
in a Miranda warning. Miranda, 384 U.S. at 444. But as relevant
20 here, such a waiver must be made “voluntarily.” Id.; accord People
v. Barrios, 2019 CO 10, ¶ 12, 433 P.3d 1218, 1222.
¶ 51 A Miranda waiver is voluntary if “it was the product of a free
and deliberate choice rather than intimidation, coercion, or
deception.” People v. Hopkins, 774 P.2d 849, 851 (Colo. 1989)
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). In contrast, a
Miranda waiver is involuntary “only if coercive governmental
conduct — whether physical or psychological — played a significant
role in inducing the defendant” to waive his rights. People v. May,
859 P.2d 879, 883 (Colo. 1993).
¶ 52 In determining whether a waiver was voluntary, courts
evaluate the nature and timing of the officers’ conduct, including,
as relevant here, whether they made misrepresentations involving
facts of which the defendant lacked firsthand knowledge, attempted
to “create a false camaraderie with the suspect” or told the suspect
that someone else had already confessed, or otherwise made
“affirmative misrepresentations that directly undercut Miranda’s
intended protections.” People v. Smiley, 2023 CO 36, ¶¶ 25-27, 530
P.3d 639, 646. In addition, courts consider self-induced
intoxication when the defendant argues that his waiver was not
21 “knowing and intelligent.” People v. Platt, 81 P.3d 1060, 1066 (Colo.
2004).
¶ 53 When giving Lorenz his Miranda advisement, Trooper Acuna
maintained a conversational tone and did not physically threaten
him. See May, 859 P.2d at 883. Trooper Acuna did not engage in
any trickery. See Miranda, 384 U.S. at 476. Specifically, he did not
misrepresent the facts of the crash that Lorenz could not
independently assess, try to create a false camaraderie with Lorenz,
or make “affirmative misrepresentations that directly undercut
Miranda’s intended protections,” Smiley, ¶¶ 25-27, 530 P.3d at 646,
such as assuring Lorenz of “more favorable treatment” if Lorenz
admitted he was the driver, id. at ¶ 28, 530 P.3d at 646-47 (quoting
Paul Marcus, It’s Not Just About Miranda: Determining the
Voluntariness of Confessions in Criminal Prosecutions, 40 Val. U. L.
Rev. 601, 616 (2006)).
¶ 54 Further, because Lorenz was conscious, was able to think
clearly, and provided responsive answers, the physical pain he was
experiencing did not render his Miranda waiver involuntary. Cf.
Mincey v. Arizona, 437 U.S. 385, 397-401 (1978) (holding that a
suspect’s Miranda waiver was involuntary because he was gravely
22 injured, was drifting in and out of consciousness, was unable to
think clearly, and repeatedly asked the officers to stop the
questioning); Effland, 240 P.3d at 878-79 (concluding that a
suspect’s Miranda waiver was involuntary because officers took
advantage of his “weakened physical and mental state” and ignored
his repeated invocations of his right to remain silent). And given
Lorenz’s ability to communicate with the officers coherently, his
self-induced intoxication does not weigh in favor of a determination
that his Miranda waiver was involuntary. See Platt, 81 P.3d at
1066.
¶ 55 Thus, we hold that the court did not err by concluding that
Lorenz voluntarily waived his Miranda rights and, therefore, his
post-Miranda statements were admissible.
e. Lorenz’s Post-Miranda Statements Were Not Obtained Through a Deliberate Two-Step Interrogation Method
¶ 56 “A ‘two-step interrogation’ takes place when officers elicit
incriminating statements from an in-custody suspect without giving
him his Miranda rights and then interview him again later and
obtain a confession after giving him his Miranda rights and securing
a waiver of those rights.” Phillips v. People, 2019 CO 72, ¶ 41, 443
23 P.3d 1016, 1027 (emphasis added) (quoting Verigan, ¶ 20, 420 P.3d
at 251).
¶ 57 Lorenz could not have been subjected to a prohibited two-step
interrogation because, as explained above, he was not in custody
before Trooper Acuna read him his Miranda rights. See People v.
Lulei, 2026 CO 17, ¶¶ 35-36, ___ P.3d ___, ___. Accordingly, the
court did not err by admitting Lorenz’s post-Miranda statements.
3. Lorenz’s Unpreserved Contention
¶ 58 Because Lorenz did not argue to the trial court that he invoked
his right to remain silent while at the hospital, he did not preserve
such argument for appellate review. See People v. Ujaama, 2012
COA 36, ¶ 37, 302 P.3d 296, 304 (When “no objection or request
was made in the trial court,” an issue is unpreserved for review.).
¶ 59 We review all errors “that were not preserved by objection for
plain error.” Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116,
120. “Plain error is obvious and substantial.” Id. “[T]o be deemed
plain, an error must contravene a clear statutory command, a well-
settled legal principle, or established Colorado case law.” People v.
Crabtree, 2024 CO 40M, ¶ 42, 550 P.3d 656, 667. But we do not
24 need to conduct a plain error analysis unless we determine that the
court erred. See id. at ¶ 41, 550 P.3d at 667.
b. Lorenz Did Not Clearly Invoke His Right to Remain Silent
¶ 60 If a suspect “indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda, 384 U.S. at 473-74.
¶ 61 In invoking the right to remain silent, “we do not require the
suspect to use special or ritualistic phrases.” People v. Arroya, 988
P.2d 1124, 1132 (Colo. 1999). Instead, “a suspect must clearly
articulate the desire to remain silent so that a reasonable police
officer in the circumstances would understand the suspect’s words
and conduct to mean that the suspect is asserting h[is] Miranda
right to cut off questioning.” Id. at 1129-30. A suspect’s invocation
of his right to remain silent is only ambiguous if his words “carry
‘opposing inferences.’” People v. Cerda, 2024 CO 49, ¶ 27, 559 P.3d
206, 212 (quoting Arroya, 988 P.2d at 1136 (Kourlis, J., concurring
in part and dissenting in part)).
¶ 62 In determining whether a suspect’s statement was a clear
assertion of the right to remain silent, we “examine the totality of
25 the circumstances to assess how a reasonable officer in the
circumstances would perceive” the statement. Arroya, 988 P.2d at
1132; accord People v. Richardson, 2014 COA 50, ¶ 28, 350 P.3d
905, 912.
¶ 63 A few minutes into Trooper Acuna’s interview with Lorenz,
Lorenz told Trooper Acuna that he would say who was driving the
truck when it crashed, except that he did not want to incriminate
himself. Lorenz argues that the trial court erred by finding that he
did not invoke his right to remain silent when he said he did not
want to incriminate himself.
¶ 64 Under the case law, however, Lorenz’s recognition that a
response would be incriminating was not a request that the officers
stop questioning him. In Richardson, a division of this court held
that statements such as “I’m not gonna spill my guts about
anything” and “I don’t think I want to admit to anything” were not
an invocation of the defendant’s right to remain silent because they
merely reflected a reluctance to confess rather than an unequivocal
desire to stop talking to police. Richardson, ¶¶ 30-34, 350 P.3d at
912-13. Similarly, in People v. Sexton, the division concluded that
the defendant’s assertion that he was “not going to answer that
26 question” only communicated a refusal to answer a particular
question and was not an invocation of the right to end all
questioning. 2012 COA 26, ¶¶ 29-33, 296 P.3d 157, 163. Lorenz
does not point to any Colorado case holding that a defendant’s
statement that he did not want to incriminate himself was the type
of unequivocal assertion that a reasonable law enforcement officer
would recognize as a clear invocation of the suspect’s right to
remain silent. Cf. United States v. Long, 721 F.3d 920, 922-25 (8th
Cir. 2013) (holding that the district court did not plainly err by
admitting the defendant’s pre‑Miranda statement, “I do not want to
incriminate myself,” even if it could be viewed as the defendant’s
attempt to invoke his Fifth Amendment rights).
¶ 65 In sum, the trial court did not err by refusing to bar the
prosecution from introducing into evidence the statements Lorenz
made to Trooper Acuna after saying he did not want to incriminate
himself.
B. The Trial Court Did Not Err by Allowing the Prosecutor to Reference Lorenz’s Statement That He Did Not Want to Incriminate Himself
1. Standard of Review
27 ¶ 66 “We review de novo alleged violations of a defendant’s
constitutional rights,” including alleged violations occurring during
a prosecutor’s closing argument. People v. Gallegos, 2023 COA 47,
¶ 88, 535 P.3d 108, 126, aff’d, 2025 CO 41M, 572 P.3d 136.
2. Additional Facts
¶ 67 The prosecutor argued during her rebuttal closing argument
that the other evidence of Lorenz’s guilt rendered insignificant
defense counsel’s argument that Lorenz’s shoulder bruise did not
establish that he had been driving at the time of the crash:
[The inconsistency around the cause of Lorenz’s shoulder bruise] doesn’t change what happened. That doesn’t change that [Lorenz] was in the driver’s seat and the victim was in the passenger’s seat. That doesn’t change the injuries on the left versus right. That doesn’t change the seat position, that the driver’s seat was closer and the passenger’s seat was further. That doesn’t change the fact that [Lorenz] was shorter and victim was taller. That doesn’t change the fact that [Lorenz] time and time again admitted that he was the one driving. He even says I don’t want to incriminate myself. You know who says that? A man who knows he did wrong.
(Emphasis added.) Defense counsel objected that the prosecutor’s
statements were “not the constitutional meaning of incrimination
and right to remain silent.”
28 ¶ 68 In response to the objection, the trial court instructed the jury
that the prosecutor’s statements were “not legal definitions” but
rather “argument by the attorneys,” and it allowed the prosecutor to
continue with her argument.
¶ 69 The prosecutor concluded her argument by reminding the jury
that Lorenz admitted to being the driver at the time of the crash.
3. The Prosecutor Did Not Commit Misconduct
¶ 70 “In a claim of prosecutorial misconduct, the reviewing court
engages in a two-step analysis.” Wend v. People, 235 P.3d 1089,
1096 (Colo. 2010). “First, it must determine whether the
prosecutor’s questionable conduct was improper based on the
totality of the circumstances and, second, whether such actions
warrant reversal according to the proper standard . . . .” Id. “Each
step is analytically independent of the other.” Id.
¶ 71 “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. Gladney, 250 P.3d 762, 769 (Colo. App.
2010) (quoting People v. Geisendorfer, 991 P.2d 308, 312 (Colo.
App. 1999)).
29 ¶ 72 “[P]rosecutors have wide latitude in the language and style
they choose to employ, as well as in replying to an argument by
opposing counsel.” People v. McMinn, 2013 COA 94, ¶ 60, 412 P.3d
551, 563. They may “comment on the evidence admitted at trial
and the reasonable inferences that can be drawn therefrom” and
“employ rhetorical devices and engage in oratorical embellishment
and metaphorical nuance.” Id. at ¶ 61, 412 P.3d at 564; see
Gladney, 250 P.3d at 769 (affording the prosecutor broad latitude in
rebutting the defense’s argument through reasonable inferences
and permissible rhetoric). “In addition, because arguments
delivered in the heat of trial are not always perfectly scripted,
reviewing courts accord prosecutors the benefit of the doubt when
their remarks are ambiguous or simply inartful.” McMinn, ¶ 60,
412 P.3d at 563.
¶ 73 However, a prosecutor must “avoid making or inducing
comments at trial that will prejudice the defendant for exercising
his Fifth Amendment rights,” including his right to remain silent.
People v. Reynolds, 575 P.2d 1286, 1292 (Colo. 1978); see People v.
Cuellar, 2023 COA 20, ¶¶ 37-38, 530 P.3d 1236, 1245 (holding that
the prosecutor engaged in misconduct by telling the jury that a
30 detective had been unable to speak with the defendant because the
defendant had requested an attorney); People v. Burnell, 2019 COA
142, ¶¶ 41, 46-47, 459 P.3d 736, 743-44 (deeming it misconduct
for a prosecutor to tell the jury that the defendant answered
multiple questions before “invok[ing] his Fifth Amendment rights”).
¶ 74 The prosecutor’s argument did not constitute misconduct
because Lorenz’s statement that he did not want to incriminate
himself was not a clear invocation of his right to remain silent, as
explained above. Thus, the prosecutor did not improperly comment
on Lorenz’s exercise of his Fifth Amendment rights and,
accordingly, the court did not err by allowing the prosecutor to
argue that Lorenz must be guilty because he said he did not want to
incriminate himself.
C. The Trial Court Did Not Err by Barring the Introduction of the Victim’s Prior Convictions
¶ 75 “We will reverse the trial court’s evidentiary rulings only for an
abuse of discretion.” People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d
431, 437-38. “A trial court abuses its discretion when it
misconstrues or misapplies the law, or when its decision is
31 manifestly arbitrary, unreasonable, or unfair.” People v. Knapp,
2020 COA 107, ¶ 31, 487 P.3d 1243, 1252.
¶ 76 We do not review whether the court’s evidentiary ruling
violated Lorenz’s constitutional rights because the trial court’s
decision to exclude evidence of the victim’s convictions for DUI or
DWAI did not implicate any such rights. A defendant’s right to
present a defense is “generally subject to, and constrained by,” the
rules of evidence. Elmarr, ¶ 27, 351 P.3d at 438.
¶ 77 The evidence introduced at trial established that officers could
not extract DNA evidence or obtain fingerprints from the area
around the driver’s seat.
¶ 78 Defense counsel asked Trooper Yoder about the scope of the
officers’ investigation into the crash, including the driving records of
the individuals who had been in the truck at the time:
[DEFENSE COUNSEL]: Did you review the driving records of the parties involved in this case?
[TROOPER YODER]: I did.
[DEFENSE COUNSEL]: Okay. So you’re aware that [the victim] had three —
32 [PROSECUTOR]: Objection, your Honor. Relevance.
THE COURT: I don’t know. Why don’t you approach?
¶ 79 During the bench conference, defense counsel argued that the
victim’s three convictions for felony DUI and DWAI were relevant to
show that the victim was the only occupant in the truck with such
a driving history. In response, the prosecutor asserted that defense
counsel’s relevance argument relied on an improper propensity
inference.
¶ 80 The trial court allowed further argument on this point the next
day. Defense counsel argued that, under Elmarr, evidence of the
victim’s prior convictions was admissible because they all related to
driving while impaired or under the influence and the crash
resulted from the driver’s intoxication. Defense counsel further
argued that the victim had an opportunity to cause the truck crash
because he and Lorenz were the only occupants of the truck at the
time.
¶ 81 For three reasons, the trial court excluded evidence of the
victim’s prior convictions. First, the court found “big distinctions”
between the facts in Elmarr and those in Lorenz’s case — in Elmarr,
33 the defendant sought to introduce the alternate suspect’s
confession to the charged crime (murder) and admission that he
had previously committed another murder. Second, it concluded
that, if admitted, the victim’s prior convictions would suggest that
the victim “like[d] to drive drunk in disregard for the law,” which
was an improper propensity argument. Third, the court determined
that admitting evidence of the victim’s prior convictions “would
open a door for the [prosecution] to potentially call family members
[who would] say [the victim] learned his lesson, he ha[d] not driven
drunk since [his last conviction in 2016], and [the trial would] get
into a side show which [was] not an issue in this case.”
3. The Victim’s Prior Convictions Were Not Proper Alternate Suspect Evidence
¶ 82 A defendant’s constitutional right to present a defense
includes “the right to present evidence that someone other than the
defendant may have committed the crime, because ‘a criminal
defendant is entitled to all reasonable opportunities to present
evidence that might tend to create doubt as to [his] guilt.’” People v.
Shanks, 2019 COA 160, ¶ 57, 467 P.3d 1228, 1242 (quoting People
v. Folsom, 2017 COA 146M, ¶ 30, 431 P.3d 652, 658). But this
34 right to present a defense operates within, and is limited by, the
rules of evidence. Elmarr, ¶¶ 22-27, 351 P.3d at 438; accord People
v. Salazar, 2012 CO 20, ¶ 17, 272 P.3d 1067, 1071-72.
¶ 83 CRE 404(b) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
conformity with the character.” A defendant implicates CRE 404(b)
when arguing that an alternate suspect’s prior acts suggest that the
alternate suspect committed the crime. Salazar, ¶ 14, 272 P.3d at
1071.
CRE 404(b) is not, on its face, limited to evidence offered by the prosecution regarding similar acts committed by the defendant. However, the concern for prejudice to the defendant that gave rise to the common law rule that underpins CRE 404(b) does not exist when the defendant offers other acts evidence of an alternate suspect.
Elmarr, ¶ 36, 351 P.3d at 440; accord Salazar, ¶ 18, 272 P.3d at
1072.
¶ 84 The supreme court explained in Elmarr that, even though a
“more lenient standard of admissibility” applies when a defendant
offers evidence of an alternate suspect’s other acts, a defendant may
35 not introduce such evidence purely to infer that the alternate
suspect acted in conformity with his bad character. Elmarr, ¶ 39,
351 P.3d at 441 (quoting People v. Flowers, 644 P.2d 916, 919
(Colo. 1982), abrogated on other grounds by, Elmarr, 2015 CO 53,
351 P.3d 431). Moreover, “other acts of an alternate suspect
generally are offered to show identity,” and “an inference that the
alternate suspect committed the other acts and the charged crime
is permissible only where the prior acts and the charged crime
share sufficient similar characteristics or details.” Id.
¶ 85 That similarity must be so distinctive or unusual that it
represents “the ‘signature’ of a single individual.” Id. (quoting
Flowers, 644 P.2d at 920); see Flowers, 644 P.2d at 920 (upholding
the exclusion of other act evidence because the “details of the other
crimes were not distinctive or unusual enough to represent the
‘signature’ of a single individual, but were features common to most
sexual assaults and merely would demonstrate that there was more
than one person committing sexual assaults in the area”); Salazar,
¶ 26, 272 P.3d at 1074 (“The acts and circumstances of [the
alternate suspect’s] prior alleged acts and the acts and
circumstances of the assaults on [the victim] are not distinctive or
36 unusual enough to support a finding that the same person probably
was involved in both cases.”).
¶ 86 “The touchstone of relevance in th[e] context [of alternate
suspect evidence] is whether the alternate suspect evidence
establishes a [nonspeculative] connection or nexus between the
alternate suspect and the crime charged.” Elmarr, ¶ 32, 351 P.3d
at 439. “That is, the alternate suspect evidence must create more
than just an unsupported inference or possible ground for
suspicion.” Id. “Anything less may lead to speculative blaming that
heightens the risk of jury confusion and invites the jury to render
its findings based on emotion or prejudice.” Id. For these reasons,
“[i]n the alternate suspect context, . . . the overarching relevance
inquiry remains whether the evidence, taken collectively,
establishes a [nonspeculative] connection between the alternate
suspect and the charged crime.” Id. at ¶ 40, 351 P.3d at 441.
¶ 87 Therefore, “evidence merely showing that someone else had a
motive or opportunity to commit the charged crime — without other
additional evidence circumstantially or inferentially linking the
alternate suspect to the charged crime — presents too tenuous and
speculative a connection to be relevant.” Id. at ¶ 34, 351 P.3d at
37 440. Because “mere motive or opportunity is insufficient[,] a
defendant must proffer something ‘more’ to establish [a]
[nonspeculative] connection.” Id.
¶ 88 Lorenz did not “proffer something ‘more’ to establish [a]
[nonspeculative] connection” between the victim and the cause of
the crash. Id. This is particularly true because the record is devoid
of any information regarding the circumstances surrounding the
victim’s convictions, see People v. Donald, 2020 CO 24, ¶ 30, 461
P.3d 4, 9-10, and no physical evidence, such as DNA evidence,
placed the victim in the driver’s seat at the time of the crash. There
may have been a closer connection between the prior act evidence
and the cause of the crash if the evidence showed that the victim
had been driving at the time and the only disputed issue concerned
whether he had been intoxicated. But the victim’s prior DUI and
DWAI convictions did not make it more or less likely that he had
been behind the wheel at the time the truck ran off the road.
¶ 89 Thus, Lorenz’s attempt to implicate the victim based on his
prior acts rested solely on the improper speculative inference that,
because the victim had driven under the influence before, he must
have done so at the time of the crash. CRE 404(b) bars a party
38 from inferring from this type of propensity evidence that an
alternative suspect committed the crime. See Elmarr, ¶ 36, 351
P.3d at 440; Salazar, ¶ 18, 272 P.3d at 1072. And the lack of
information regarding the facts underlying the victim’s convictions
meant Lorenz could not show that those facts were distinctive or
unusual enough to support a finding that the victim was driving
under the influence because he had done so before. See Salazar,
¶ 26, 272 P.3d at 1074.
¶ 90 For these reasons, the trial court did not err by excluding
evidence of the victim’s prior convictions.
D. Lorenz’s DUI and DUI Per Se Convictions Must Merge With His Vehicular Homicide Conviction
¶ 91 Lorenz argues, the People concede, and we agree, that Lorenz’s
DUI and DUI per se convictions merge into his conviction for
vehicular homicide.
¶ 92 The Double Jeopardy Clauses of the United States and
Colorado Constitutions prohibit placing a defendant in jeopardy
more than once for the same offense. See U.S. Const. amends. V,
XIV; Colo. Const. art. II, § 18. “[A] defendant may not receive
multiple punishments for the same offense unless such
39 punishments are legislatively authorized.” People v. Tun, 2021 COA
34, ¶ 43, 486 P.3d 490, 499.
¶ 93 “In Colorado, the General Assembly has determined that a
defendant may not be convicted of two different offenses if one
offense is a lesser included offense of the other.” Id. Under the
strict elements test, which we apply to determine “whether one
offense is a lesser included offense of another,” Reyna-Abarca v.
People, 2017 CO 15, ¶ 3, 390 P.3d 816, 818, “[o]ne offense is a
lesser included offense of the other if ‘the elements of the lesser
offense are a subset of the elements of the greater offense, such that
the lesser offense contains only elements that are also included in
the elements of the greater offense.’” Tun, ¶ 43, 486 P.3d at 499
(quoting Reyna-Abarca, ¶ 3, 390 P.3d at 818).
¶ 94 In Reyna-Abarca, the supreme court, applying the strict
elements test, concluded that DUI is a lesser included offense of
vehicular homicide because every element of DUI is necessarily
contained within the broader elements of vehicular homicide.
Reyna-Abarca, ¶¶ 71-78, 390 P.3d at 827. In other words, facts
proving that a defendant drove a vehicle while under the influence
are “a subset” of the broader array of facts that can satisfy the
40 elements of vehicular homicide. Id. at ¶¶ 62, 71-78, 390 P.3d at
826-27.
¶ 95 Under the Reyna-Abarca framework, driving a vehicle with a
BAC of 0.08 or more is “a subset” of facts that can satisfy the
elements of vehicular homicide. Id. at ¶¶ 3, 62, 71-78, 390 P.3d at
818, 826-27. And in Lorenz’s case, the prosecution proved the
vehicular homicide count using the same facts that also proved the
DUI per se count.
¶ 96 Accordingly, because Lorenz’s convictions arose from a single
incident involving a single victim, under Reyna-Abarca, Lorenz’s
DUI and DUI per se convictions must merge with his vehicular
homicide conviction.
III. Disposition
¶ 97 The judgment is affirmed in part and reversed in part, and the
case is remanded with directions to merge the lesser included
offenses into the vehicular homicide conviction.
JUDGE WELLING and JUDGE TOW concur.