21CA0963 Peo v Pope 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0963 Jackson County District Court No. 19CR24 Honorable Stephen J. Jouard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Douglas Dean Pope,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE SCHUTZ Tow and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Douglas Dean Pope appeals the judgment of
conviction entered on a jury verdict finding him guilty on one count
of second degree assault (serious bodily injury). We affirm.
I. Background and Procedural History
A. The Assault and Immediate Aftermath
¶2 In December 2019, Tina1 and Douglas Pope, who had been
married for five years, were involved in an argument after Tina
accidently damaged Pope’s guitar. After a tense few days, Tina
suggested that Pope spend some time at a hotel because they were
“cooped up” together in their home. He declined to leave, so Tina
decided to stay at a hotel.
¶3 When Tina informed him of her decision to leave, Pope, who
stood six feet five inches tall and weighed around 300 pounds,
grabbed her by the arm, cornered her in the kitchen, and repeatedly
punched her in the head and neck, as she crouched below him.
Tina testified that after Pope stopped hitting her, she saw “black
1 Because Tina and Douglas share the same last name, to avoid
confusion we will refer to Tina by her first name. We mean no disrespect by doing so.
1 stars” and felt dizzy and nauseous but remained conscious. She
fled to their home office and barricaded the door with a chair.
¶4 Pope called 911 and told the dispatcher that he had hit Tina
and “needed to be picked up.” Officers arrested him when they
arrived at the home.
¶5 Officers testified that Tina had significant bruising and
abrasions on her neck and face. Paramedics transported Tina to
the hospital where Dr. Lynette Telck examined her. Dr. Telck
diagnosed her with post-traumatic headache, not intractable, which
means that the injury was not so “completely overwhelming that
[Tina was not] at least . . . able to walk and communicate her
concerns.”
¶6 After a series of follow-up appointments, Dr. Telck concluded
Tina had suffered a concussion during the attack. Dr. Telck
described a concussion as “a physical injury to the organ of the
brain.” At a further follow-up appointment in February 2020, after
Tina reported ongoing issues with headaches, dizziness, and
balance, Dr. Telck referred her to physical therapy to address the
concussion.
2 ¶7 Prior to the assault, Tina had been diagnosed with diabetes
and epilepsy. Tina did not initially disclose her medical history to
Dr. Telck, but Dr. Telck learned about it when preparing for
subsequent appointments.
¶8 In April 2020, Pope’s counsel requested that Tina be referred
for a neuropsychological evaluation to explore the scope of her
injuries, but Tina never followed through with the referral.
¶9 In May 2020, six months after the assault, Tina met virtually2
with Dr. Sarah Yang, a neurologist. Tina reported that she was
experiencing daily headaches, frequent migraines, dizziness,
balance issues, behavioral changes, and memory loss. She also
reported frequent noise and light sensitivity, as well as head and
neck pain. After the consultation, Dr. Yang referred Tina for an
MRI.
¶ 10 Dr. Yang testified that Tina’s symptoms were consistent with
post-concussive syndrome, a brain injury that results from the
brain moving back and forth in the skull. Such movement can
2 Dr. Yang’s consultations with Tina took place in spring 2020. Due to the COVID-19 pandemic, in-person visits were limited, and she did not physically examine Tina.
3 damage the brain’s neurons and cells. Dr. Yang also noted that
Tina’s symptoms could also be attributable to post-traumatic stress
disorder or pseudodementia.
B. The Trial and Conviction
¶ 11 Pope was charged with false imprisonment3 and second degree
assault (serious bodily injury). The matter was set for a jury trial.
¶ 12 The primary disputed issue at trial was whether Pope caused
serious bodily injury to Tina. Serious bodily injury is
bodily injury that either at the time of the actual injury or at a later time, involves a substantial risk of death; a substantial risk of serious permanent disfigurement; a substantial risk of protracted loss or impairment of the function of any part or organ of the body; or breaks, fractures, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.
§ 18-1-901(3)(p), C.R.S 2024.4
3 The trial court acquitted Pope on the false imprisonment charge at
the conclusion of the People’s evidence after finding that there was not sufficient evidence to submit the count to the jury. 4 At trial and on appeal, the parties agreed that the only potential
basis for a finding that Tina suffered a serious bodily injury was “the substantial risk of protracted loss or impairment of the function of any part of the body.”
4 ¶ 13 In addition to testimony from Dr. Telck and Dr. Yang, the jury
also heard from Dr. Jenna Miller, a neuropsychologist who testified
that Tina’s injuries were not consistent with a concussion and
explained that her subsequent symptoms could be attributed to
other factors such as underlying medical conditions or stress.
¶ 14 During deliberations, the jury asked the court for the legal
definitions of “protracted” and “impairment.” The court responded
to the question stating, “you have been given all the instructions of
law you may properly consider.”
¶ 15 The jury returned a guilty verdict on second degree assault
(serious bodily injury). The trial court sentenced Pope to six years
in the custody of the Department of Corrections.
¶ 16 Pope appeals the judgment of conviction, arguing that (1) the
verdict was not supported by sufficient evidence; (2) the definition of
serious bodily injury is unconstitutionally vague; (3) the trial court
erred by improperly allowing expert witnesses to offer a legal
opinion as to whether Tina suffered serious bodily injury; and
(4) the court erred by preventing Pope’s counsel from fully cross-
examining Tina. We address these contentions in turn.
5 II. Sufficiency of the Evidence
¶ 17 Pope contends that the prosecution failed to present sufficient
evidence to prove that Pope caused Tina “a substantial risk of
protracted loss or impairment of the function of any part or organ of
the body” and therefore, his conviction must be reversed.
A. Standard of Review and Applicable Law
¶ 18 We review the record de novo to determine whether the
evidence was sufficient both in quantity and quality to sustain a
conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010).
¶ 19 To determine whether the prosecution presented sufficient
evidence, we consider “whether the relevant evidence, both direct
and circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
a conclusion by a reasonable mind that the defendant is guilty of
the charge beyond a reasonable doubt.” Id. (quoting People v.
Bennett, 515 P.2d 466, 469 (Colo. 1973)). In jury trials, the jury
“decides difficult questions about the weight it determines to give
conflicting evidence.” Id. at 1293. Appellate courts do not sit as a
thirteenth juror to second-guess the jury’s weighing of the evidence.
See id.
6 ¶ 20 As relevant in this case, serious bodily injury is an injury that,
at or after the time the injury was incurred, involves a substantial
risk of protracted loss or impairment of the function of any part or
organ of the body. § 18-1-901(3)(p). The facts of the actual injury
control determination of serious bodily injury, not “the risk
generally associated with the type of conduct or injury in question.”
People v. Vigil, 2021 CO 46, ¶ 33 (interpreting the substantial risk
of death component of serious bodily injury).
B. Application
¶ 21 Pope contends that there was insufficient evidence as a matter
of law for the jury to find that he caused Tina protracted loss or
impairment of any part or area of her body. Specifically, Pope
focuses on the following evidence: (1) Tina had underlying medical
issues, such as diabetes, which potentially caused or contributed to
her post-assault symptoms; (2) Tina’s subsequent behavior, such as
not completing the neuropsychological evaluation in April 2020 and
missing follow-up appointments with Dr. Telck, indicate that her
injury may not have been as serious as the prosecution argued; and
(3) the testimony offered by Tina and the expert witnesses did not
support the jury’s serious bodily injury finding beyond a reasonable
7 doubt because her symptoms can be explained by causes
independent of the assault.
¶ 22 Viewing the evidence in the light most favorable to the
prosecution, we conclude that there was sufficient evidence that
Pope caused serious bodily injury to Tina. The jury could have
plausibly found beyond a reasonable doubt that Pope actually
caused Tina to suffer a “protracted loss or impairment of the
function” of her brain based on the following evidence: (1) Tina’s
testimony that Pope repeatedly punched her head like a
“jackhammer”; (2) Pope’s admission to the 911 dispatcher that he
“needed to be picked up” after hitting Tina; (3) photos of Tina after
the assault; (4) testimony from Tina’s treating physicians that her
subsequent symptoms were consistent with injuries stemming from
the assault; and (5) testimony that Tina was diagnosed with a
concussion and then post-concussive disorder, after the assault.
The jury also heard testimony, as discussed more fully below, that
Tina’s injuries created a substantial risk of protracted impairment
of her brain function.
¶ 23 Viewing this evidence in the light most favorable to the
prosecution, we conclude that a reasonable jury could find beyond
8 a reasonable doubt that Pope caused serious bodily injury to Tina,
and therefore, we reject Pope’s sufficiency challenge.
III. Void for Vagueness
¶ 24 Pope next argues the term “protracted loss or impairment” is
unconstitutionally vague and therefore violates his right to equal
protection under the federal and state constitutions. Not so.
¶ 25 Pope did not raise his void for vagueness argument before the
trial court. Nevertheless, we may reach the merits of unpreserved
constitutional claims under limited circumstances. See People v.
Devorss, 277 P.3d 829, 834 (Colo. App. 2011).
¶ 26 A statute’s constitutionality is a question of law that we review
de novo. People v. Torline, 2020 COA 160, ¶ 8. “A statute is facially
void for vagueness if it is incomprehensible in all of its
applications.” Devorss, 277 P.3d at 835. The challenger has the
burden to prove a statute is unconstitutional beyond a reasonable
doubt. Torline, ¶ 8.
¶ 27 To prevail on a vagueness challenge the defendant must show
that the statute “forbids or requires the doing of an act in terms so
vague that persons of ordinary intelligence must necessarily guess
9 as to its meaning and differ as to its application.” Devorss, 277
P.3d at 835 (quoting People v. Gross, 830 P.2d 933, 937 (Colo.
1992)). A defendant may challenge a statute’s constitutionality as
applied to them or facially. To prevail on a claim that a statute is
vague as applied, a defendant must establish that the “[statute]
does not, with sufficient clarity, prohibit the conduct against which
it is to be enforced.” People v. McIntier, 134 P.3d 467, 475 (Colo.
App. 2005). An as-applied challenge is therefore based on the
particular defendant’s conduct. Id. In contrast, to establish a claim
that a statute is facially unconstitutional, a defendant must prove
beyond a reasonable doubt that the statute is unconstitutionally
vague in all its potential applications. People v. Houser, 2013 COA
11, ¶ 41.
¶ 28 As an initial matter, Pope never expressly states whether he
challenges the application of section 18-1-901(3)(p) as applied or on
its face. However, he does not develop any factual argument
explaining why the statute is unconstitutional as specifically
applied to his conduct. Moreover, Pope failed to develop his as-
applied challenge in the trial court. Because an as-applied
10 challenge must be based on specific facts developed in the trial
court, and no such facts were developed here, we decline to address
Pope’s as-applied challenge. See People v. Stone, 2020 COA 23, ¶
49 (“We do not consider as-applied challenges that are not
presented to the trial court . . . .”).
¶ 29 To prevail on his facial challenge, Pope must prove beyond a
reasonable doubt that section 18-1-901(3)(p) “forbids or requires
the doing of an act in terms so vague that persons of ordinary
intelligence must necessarily guess as to its meaning and differ as
to its application.” Devorss, 277 P.3d at 835. Though Pope
correctly notes that neither the phrase “protracted loss or
impairment” nor its constituent components are defined by statute,
he presents no evidence that persons of ordinary intelligence cannot
understand the meaning of the term.
¶ 30 Moreover, Pope concedes, there is case law that delineates the
difference between various types of harm and distinguishes serious
bodily injury from bodily injury. See People v. Brown, 677 P.2d
406, 409 (Colo. App. 1983). Furthermore, divisions of this court
have previously determined that the terms “serious bodily injury,”
“substantial,” “protracted,” and “impairment” are not considered
11 unconstitutionally vague merely because section 18-1-901(3)(p)
does not define the terms. See People v. Duncan, 2023 COA 122, ¶
28 (collecting cases).
¶ 31 Though we are not bound by the decisions of other divisions of
this court, we see no reason to depart from these holdings,
particularly given the lack of evidence or authority suggesting that
people of ordinary intelligence cannot understand the meaning of
“protracted loss or impairment.” This is particularly true when, as
here, a defendant fails to assert his facial challenge in the trial
court. Id. at ¶ 28 (In light of existing case law rejecting
constitutional challenges to the definition of serious bodily injury,
“the trial court could not reasonably have been expected to
intervene sua sponte and find the statute unconstitutionally
vague.”). We therefore reject Pope’s facial challenge.
IV. Improper Expert Testimony
¶ 32 Pope contends that the trial court erred by allowing Dr. Telck
and Dr. Yang to provide legal opinions about whether Tina’s injuries
met the definition of serious bodily injury. Even though we
conclude that this testimony crossed into legal opinions, we
ultimately conclude that the trial court did not abuse its discretion
12 by admitting the evidence, and to the extent the court did abuse its
discretion, any error was harmless.
A. Additional Facts
¶ 33 The day before the trial started, Pope’s counsel filed a motion
objecting to Dr. Telck’s and Dr. Yang’s proposed testimony offering
an opinion about whether Tina suffered “serious bodily injury.” The
next morning, at a pretrial conference, the parties argued the merits
of the motion. The trial court found that Dr. Telck’s and Dr. Yang’s
proposed testimony on whether Tina suffered serious bodily injury
also could be characterized as a medical/legal definition and
therefore the opinions were admissible. The court noted that the
jury would be specifically instructed that they may accept or reject
any testimony, including that of an expert witness.
¶ 34 At trial, the prosecution asked Dr. Telck whether she was
familiar with a law enforcement document known as a serious
bodily injury form (SBI form). Dr. Telck testified that she was
familiar with the SBI form and that she signed one on the day she
first examined Tina. The prosecutor then asked her about the
form’s content:
13 [Prosecutor]: [D]id you also have to make an assessment about serious bodily injury?
[Telck]: I did.
[Prosecutor]: So you’re familiar with the medicolegal definition5 of serious bodily injury that was on that form?
[Telck]: I am.
...
[Prosecutor]: All right. So on that form there is a definition of serious bodily injury?
[Telck]: There is.
[Prosecutor]: Are you familiar with that definition?
[Prosecutor]: And is that because you had encountered it before?
[Telck]: Yes, that is correct.
[Prosecutor]: And so have you had an opportunity to fully consider that definition?
[Telck]: I have.
5 This term is potentially misleading because it implies that a legal
definition incorporating medical concepts are inherently inseparable, and therefore any opinion concerning the ultimate legal issue is proper for a qualified physician to make. For the reasons explained more fully below, we reject this suggestion.
14 [Prosecutor]: Did you have an opportunity to fully consider that definition on the day of the assault?
¶ 35 The prosecutor asked Dr. Telck to elaborate on the SBI form’s
content:
[Prosecutor]: . . .[W]hen you’re looking at that form, the serious bodily injury form, is there a definition of serious bodily injury on that form?
[Prosecutor]: What does that definition say?
[Telck]: It says, Serious bodily injury, in quotes, means bodily injury which either at the time of the actual injury or at a later time involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
[Prosecutor]: Okay. So based on your familiarity with that definition and familiarity with the patient that day that you assessed her, did you make a determination that Tina Pope had suffered serious bodily injury?
15 [Prosecutor]: And the brain is -- when it says an organ of the body, is the brain an organ of the body?
[Telck]: It is, yes.
[Prosecutor]: Were you concerned about protracted loss of function of the organ, the brain?
[Telck]: Absolutely.
[Prosecutor] For what reason?
[Telck]: Because of the manner in which she was assaulted.
[Prosecutor]: Okay. And so typically can concussions cause protracted issues?
[Telck]: Absolutely. Concussions can cause all sorts of long-term issues.
[Prosecutor]: So on the date of the assault, under that definition of at the time of the assault or at a later date, there was substantial risk of what?
[Telck]: Of protracted injury to the brain.
¶ 36 On redirect examination, the prosecutors asked Dr. Telck if
she stood by her assessment that Tina suffered serious bodily
injury and — over defense counsel’s objection — Dr. Telck
responded that she did.
16 ¶ 37 The prosecution next called Dr. Yang, who testified that in
May 2020, Tina reported she was still persistently experiencing
migraine headaches, light sensitivity, imbalance, nausea, leg
numbness, and panic attacks. Dr. Yang opined that Tina’s
symptoms were consistent with post-concussive syndrome, which
she described as an impairment of the brain caused by the sheering
forces of a concussion that damage the brain’s nerve cells and
neurons.
¶ 38 Near the end of Dr. Yang’s direct testimony, the prosecutor
asked her to read the definition of serious bodily injury. The
prosecutor then asked Dr. Yang the following questions:
[Prosecutor]: [A]re you familiar with the term “serious bodily injury”?
[Yang]: Yes.
[Prosecutor]: And did you learn about that during the course of conversations preparing for this case?
[Yang]: Yes, I did.
¶ 39 The prosecutor asked Dr. Yang to read the SBI form to herself
and to read the statutory definition of serious bodily injury to the
jury, again over defense counsel’s objection. After she read the
serious bodily injury definition from the form, the prosecutor asked:
17 [Prosecutor]: So based on that definition that you became familiar with and your assessment of [Tina], is it your medical opinion that [she] suffered serious bodily injury?
[Defense counsel]: We would renew all prior objections.
[The court]: Your objection has been noted and it’s of record.
[Yang]: Yes, it is.
¶ 40 On redirect examination, the prosecutor asked Dr. Yang if it
was her medical opinion that Tina suffered serious bodily injury.
She answered “yes.”
B. Standard of Review
¶ 41 We review a trial court’s evidentiary rulings for an abuse of
discretion. Campbell v. People, 2019 CO 66, ¶ 21. We will not
disturb the court’s decision absent a showing that it was manifestly
arbitrary, unreasonable, or unfair, or was based on a
misapprehension or misapplication of the law. People v. Elmarr,
2015 CO 53, ¶ 20. An appellate court may affirm a trial court’s
decision on any ground supported by the record, whether relied
upon or even considered by the trial court. People v. Dyer, 2019
COA 161, ¶ 39.
18 C. Applicable Law
¶ 42 Although an expert witness may provide testimony that
embraces an ultimate issue of fact, an expert may not simply tell
the jury what result to reach. People v. Gaffney, 769 P.2d 1081,
1087 (Colo. 1989); CRE 704 (“Testimony in the form of an opinion
or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.”).
Thus, an expert opinion is improper if it applies the facts of the case
to a particular legal standard in a way that tells the jury that the
legal standard has been satisfied. People in Interest of J.R., 2021
COA 81, ¶ 31. Moreover, it is improper for a witness to provide
opinion testimony concerning that law. People v. Prendergast, 87
P.3d 175, 182 (Colo. App. 2003).
¶ 43 Although experts may offer testimony that embraces an
ultimate issue to be decided by the trier of fact, they may not usurp
the jury’s role as fact finder in offering such testimony. People v.
Rector, 248 P.3d 1196, 1203 (Colo. 2011). In deciding whether
expert testimony crosses the line from a permissible comment on an
ultimate issue to usurpation of the jury’s role as fact finder, we
consider a number of factors, including whether
19 (1) the testimony was clarified on cross- examination; (2) the expert’s testimony expressed an opinion of the applicable law or legal standards and thereby usurped the function of the court; (3) the jury was properly instructed on the law and that it could accept or reject the expert’s opinion; and (4) the expert opined that the defendant had committed the crime or that there was a particular likelihood that the defendant did so.
People v. Baker, 2021 CO 29, ¶ 32 (citing Rector, 248 P.3d at 1203).
D. Application
¶ 44 Pope contends that the trial court abused its discretion by
admitting Dr. Telck’s and Dr. Yang’s testimony about whether Tina
suffered serious bodily injury because it was extremely prejudicial,
exceeded the scope of proper opinion testimony by allowing them to
offer legal opinions rather than mere medical opinions, and
therefore, usurped the jury’s role as a fact finder.
¶ 45 As a threshold matter, we conclude that both Dr. Telck’s and
Dr. Yang’s testimony stepped beyond simple medical opinions and
into the realm of legal opinion. Indeed, they couched these opinions
after reading the legal definition of serious bodily injury and then
applying it to the specific facts of the case. That was improper legal
opinion testimony. See People v. Baker, 2019 COA 165, ¶ 21
20 (Expert testimony may be improper if “it assesses witness
testimony, indicates a belief in a particular version of the facts, and
then applies the law to those facts to make conclusions reserved for
the jury.”). Moreover, it was unnecessary because the jury could
have simply applied Dr. Telck’s and Dr. Yang’s respective medical
diagnoses to Tina’s condition and reached a conclusion about
whether Tina’s symptoms met the definition of serious bodily injury.
But we ultimately must ask whether the improper legal opinion
usurped the jury’s function. To assess this issue, we apply the
Rector factors.
¶ 46 The supreme court articulated the Rector factors as a means of
assessing whether a trial court abuses its discretion by permitting a
doctor to provide opinion testimony that a medical injury meets the
definition of a legal term. Rector, 248 P.3d at 1202-04 (assessing
whether a trial court abused its discretion by allowing a doctor to
testify that injuries met the definition of child abuse); see also
Lawrence v. People, 2021 CO 28, ¶¶ 37-57 (assessing whether a
trial court abused its discretion by allowing a securities
commissioner to opine that the defendant misrepresented material
facts involving the investment in a security).
21 ¶ 47 A number of the Rector factors look to issues that occur during
or after the disputed testimony, such as whether the improper
opinion testimony was subject to meaningful cross-examination,
whether the court properly instructed the jury concerning the
substantive legal issues, the court’s paramount role in defining the
law, the jury’s paramount role in deciding the facts and applying
them to the law, and the jury’s ability to believe some, all, or none
of an expert witness’s testimony. Rector, 248 P.3d at 1203.
¶ 48 But trial courts must make their error assessment before
these events occur. Thus, it is a bit of an artifice to suggest that the
trial court’s assessment of admissibility, and our review of that
assessment, should be based on facts that are not known at the
time the trial court must decide whether to permit the opinions.
Rather, it appears that the Rector factors are more properly utilized
to assess whether the error associated with admitting improper
legal opinion testimony was harmless under the applicable
standard of reversal.
¶ 49 Nonetheless, because Rector and Lawrence articulate and
apply the four factors to assess whether the trial court abused its
22 discretion, we start by applying the Rector principles in this
manner.
¶ 50 As it relates to the first Rector factor — whether the testimony
was clarified on cross-examination — Pope’s counsel mitigated the
improper opinions by clarifying the distinction between a legal
opinion and a medical opinion. For example, during Dr. Telck’s
cross-examination, counsel elicited testimony that the SBI form was
created by law enforcement and was not a medical form. She also
testified that serious bodily injury was a legal term, not a medical
term of art. Pope’s counsel also elicited testimony from Dr. Telck
about the distinction between medical forms and legal forms by
discussing how Dr. Telck consulted with police officers and
prosecutors about the SBI form.
¶ 51 Pope’s counsel elicited testimony that similarly narrowed Dr.
Yang’s opinion on cross-examination. When asked, Dr. Yang
clarified that serious bodily injury is not a medical term of art and
that she is not a legal expert.
¶ 52 As to the second Rector factor — whether the expert testimony
improperly invaded the function of the court concerning the
meaning of serious bodily injury — we conclude for the reasons
23 stated previously that Dr. Telck’s and Dr. Yang’s testimony crossed
that line. But the improper testimony was significantly mitigated
because the trial court properly instructed jurors (1) on the
definition of serious bodily injury; (2) that they were the “sole judges
of credibility of each witness and the weight given to each witness’s
testimony”; (3) that they must follow the law as instructed; and (4)
that they were the ultimate authority as to whether Tina suffered
serious bodily injury. Moreover, Dr. Telck and Dr. Yang
appropriately provided the jury with the factual and medical basis
for their opinions about serious bodily injury. They both informed
the jury that Tina suffered long-term symptoms resulting from the
assault, including protracted loss of function of the brain — which
they both explained is an organ of the body. This testimony
provided the jury with the factual foundation and medical opinions
to independently assess the evidence and reach its own conclusions
about whether Tina suffered serious bodily injury in light of the
court’s instructions. Thus, although the experts’ opinions on
serious bodily injury improperly strayed into legal testimony, those
opinions did not usurp the function of the court or the jury.
24 ¶ 53 Again, the more prudent practice would have been for the
prosecutor to limit Dr. Telck’s and Dr. Yang’s testimony to their
medical opinions. See Lawrence, ¶ 48 (“[W]e encourage trial judges
to assess, on a case-by-case basis, whether such testimony would
truly be helpful to the jury before allowing the jury to hear it.”).6
However, in looking at the record holistically and applying the error
analysis dictated by Rector, we conclude that the improper
testimony did not usurp the jury’s function. Rector, 248 P.3d at
1203. Therefore, the trial court did not abuse its discretion by
admitting the testimony. Id. at 1204.
¶ 54 But assuming that error exists, we conclude that the error was
harmless for many of the reasons previously articulated. It is true
6 In Lawrence, the supreme court warned prosecutors about the
propensity and impropriety of asking expert witnesses for improper legal testimony. Lawrence v. People, 2021 CO 28, ¶ 44. Given the unique privileges and duties prosecutors possess, it is difficult to understand how this type of improper testimony is repeatedly introduced. Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (“The prosecutor must therefore scrupulously avoid comments that could mislead or prejudice the jury. The prosecutor’s actions during a criminal trial must always comport with the sovereign's goal that justice be done in every case and not necessarily that the prosecution ‘win.’”). Trial courts can and should expect prosecutors to honor their professional obligation to discontinue such practices.
25 that the central contention at trial was whether Tina suffered
serious bodily injury as a result of the assault. We also
acknowledge that the resolution of this dispute had critical
consequences — whether Pope faced sentencing on a misdemeanor
conviction versus a substantial prison sentence for conviction of a
class 4 felony. Nonetheless, when applying the Rector factors, we
cannot say that the error affected Pope’s substantial rights because
the testimony did not substantially influence the verdict or affect
the fairness of the trial. See Hagos v. People, 2012 CO 63, ¶ 12
(describing the nonconstitutional harmless error standard);
Lawrence, at ¶ 56 (applying nonconstitutional harmless error to
assess any error associated with the admission of improper legal
opinions).
¶ 55 The mechanical forces of this assault were largely undisputed
and brutal. Pope repeatedly pummeled Tina in the head, blows
which she compared to being struck with a jackhammer. Tina’s
symptomology was immediate and continued for many months.
Both Dr. Telck and Dr. Yang opined that these injuries were caused
by a concussion that created substantial risk of protracted loss or
impairment of the function of an organ of the body, namely Tina’s
26 brain. As previously discussed, both doctors also provided the jury
with the detailed factual and medical evidence that supported their
conclusions, thereby allowing the jury to independently assess the
evidence based on the court’s instructions.
¶ 56 The jury also received opinion testimony from Dr. Miller, a
neuropsychologist who Tina’s counsel called to discuss the varying
types of concussions and the risk of long-term symptoms a patient
may experience depending on the degree of concussion. Though
she had not examined Tina or spoken to her concerning her
symptoms, Dr. Miller examined her post-assault medical records
and reported symptoms. Dr. Miller also evaluated Tina’s past
medical diagnoses and the associated prescribed medications,
including their potential side effects. Ultimately, Dr. Miller
suggested that Tina’s post-assault symptoms were more consistent
with her past medical conditions and associated medications, not
any concussion resulting from the assault.
¶ 57 But Dr. Miller did not dispute that concussions create a
substantial risk of impairing the brain; nor did she dispute that the
associated brain injury may be protracted, depending on the
seriousness and length of the symptoms. So the central dispute at
27 trial was not whether a concussion can result in serious bodily
injury. Rather, the central question was whether Tina’s protracted
symptoms were consistent with the concussive impact of the
assault or her past medical conditions. On this issue, Dr. Telck,
Dr. Yang, and Dr. Miller provided the jury with the necessary
information related to Tina’s pre-assault medical history to allow
the jury to assess these medical issues from a factual perspective
through the lens of the court’s jury instructions on the controlling
law.
¶ 58 And, as previously detailed, the court thoroughly and
accurately instructed the jurors that they alone determined the
facts of this case, they were free to accept or reject any testimony,
including the opinions of expert witnesses, and the court’s
instructions were the only proper source for the definition of serious
bodily injury. Finally, the jury also received the benefit of thorough
cross-examinations testing the veracity of Dr. Telck’s and Dr. Yang’s
testimony and the limits of their expertise and their opinions
concerning serious bodily injury.
¶ 59 In sum, the jury received the very types of remediating
instructions and evidence that the Rector factors contemplate as
28 mitigating the impact of improper expert legal opinion. Given these
circumstances, we cannot say that the improper admission of Dr.
Telck’s and Dr. Yang’s testimony that Tina suffered serious bodily
injury substantially influenced the verdict or undermined the
fairness of the trial. Hagos, ¶ 12. Accordingly, any error in
admitting their opinions was harmless. See People v. Rock, 2017
CO 84, ¶ 22 (error is harmless unless “there is a reasonable
probability that it contributed to the defendant’s conviction”).
V. Confrontation Clause Claim
¶ 60 Finally, Pope contends that the trial court reversibly erred and
violated his rights under the Confrontation Clause by restricting his
counsel from cross-examining Tina about their pending marital
dissolution. We discern no error.
¶ 61 In March 2020, Tina filed to dissolve their marriage after
Pope’s arrest. While Pope was incarcerated, Tina allegedly agreed to
hold off on dissolution proceedings, to retain control of Pope’s
personal property, and to manage his finances until his release in
exchange for being awarded their marital home. Tina’s dissolution
counsel mailed Pope a document that reflected this agreement. But
29 Pope declined to sign the proposal. The People moved in limine to
prevent the defense from introducing evidence of the parties’
dissolution and related negotiations on the basis that it was
irrelevant and should be excluded under CRE 403 because the
probative value of the evidence was substantially outweighed by the
danger of unfair prejudice and could confuse the jury.
¶ 62 Defense counsel responded that granting the People’s motion
would violate Pope’s Sixth Amendment right to confrontation and
that he had a broad right to cross-examine Tina about her motive,
bias, and interest, including the financial benefit she stood to gain
from the marital dissolution and Pope’s incarceration.
¶ 63 The trial court agreed, over defense counsel’s objection, that
evidence of the dissolution proceedings was not relevant to Pope’s
criminal matter and even if the evidence was relevant, it was
properly excluded under CRE 403.
¶ 64 At the conclusion of the People’s evidence, defense counsel
objected again to the court’s finding and asked it to take judicial
notice of the dissolution proceedings on the basis that the
prosecution opened the door by leading the jury to believe that Tina
and Pope were still married. She reasoned that jurors may
30 incorrectly conclude that Tina returned home to Pope and that
would confuse them. The trial court again denied defense counsel’s
motion after finding that the dissolution proceedings had no
relevance and that even if the evidence was relevant, the probative
value was substantially outweighed by the risk of prejudice or
confusion and therefore should also be excluded under CRE 403.
B. Standard of Review and Preservation
¶ 65 We review a trial court’s evidentiary rulings for an abuse of
discretion. Campbell, ¶ 21. The parties dispute whether harmless
error or plain error applies. However, because we discern no abuse
of discretion, we need not decide which standard applies.
C. Applicable Law
¶ 66 “The Sixth Amendment right to confrontation and the Fifth
Amendment right to due process of law require only that the
accused be permitted to introduce all relevant and admissible
evidence.” Id. at ¶ 68 (quoting People v. Harris, 43 P.3d 221, 227
(Colo. 2002)). A Confrontation Clause violation may exist if a
defendant “was prohibited from engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on
31 the part of the witness.” Kinney v. People, 187 P.3d 548, 559 (Colo.
2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).
¶ 67 However, a criminal defendant’s right to cross-examination is
not unlimited. CRE 611(b) (“Cross-examination should be limited
to the subject matter of the direct examination and matters
affecting the credibility of the witness.”). As it relates to the
intersection between the Confrontation Clause and cross-
examination, trial courts have wide latitude to place reasonable
limits on cross-examination due to concerns about “prejudice,
confusion of the issues, the witness’ safety, or interrogation which
is repetitive or only marginally relevant.” Merritt v. People, 842 P.2d
162, 166 (Colo. 1992) (quoting Delaware, 475 U.S. at 679).
¶ 68 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. Relevant evidence may be excluded,
however, “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” CRE 403.
32 D. Application
¶ 69 Pope contends that his assault charge and the impending
dissolution were intertwined because if the jury was aware that
Tina potentially had a financial incentive for Pope’s incarceration, it
may have evaluated her credibility differently. Thus, Pope contends
that the trial court’s ruling was an abuse of discretion because it
excessively limited his ability to effectively cross-examine Tina.
¶ 70 The People argue that the trial court did not abuse its
discretion by preventing Pope from bringing up evidence of the
marital dissolution because it was not relevant to whether Pope
caused Tina serious bodily injury. We agree.
¶ 71 As discussed, evidence is relevant if it has “any tendency” to
make a consequential fact “more or less probable.” CRE 401. The
marital dissolution had nothing to do with the criminal charges. It
is undisputed that Pope repeatedly struck Tina. The issue during
the trial was the extent of the harm caused. And Pope fails to show
how the dissolution proceedings, which Tina commenced months
after the assault, were relevant to Tina’s injuries. To the extent he
is arguing that their preliminary discussions about the allocation of
marital property gave Tina a motive to lie, that argument was
33 foreclosed when Pope rejected the proposal. And Pope provides no
explanation how his incarceration would have otherwise impacted
the dissolution proceedings.
¶ 72 Thus, even if evidence related to the dissolution was
marginally relevant, the trial court correctly found that it should be
excluded under CRE 403 because it had significant potential to
needlessly confuse the jury and because its relevance was marginal
at best. It necessarily follows that the trial court did not abuse its
discretion because the limitation did not unreasonably limit Pope’s
right to cross-examine Tina.
VI. Disposition
¶ 73 The judgment is affirmed.
JUDGE TOW and JUDGE PAWAR concur.