Peo v. Tryels

• Court: Colorado Court of Appeals
• Decided: February 26, 2026
• Docket: 23CA1396
• Status: Unpublished

Opinion

23CA1396 Peo v Tryels 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1396 Arapahoe County District Court No. 21CR1872 Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Davoisier Tryels,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE DUNN Moultrie and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Davoisier Tryels, appeals his convictions for first

degree assault causing serious bodily injury, first degree trespass,

third degree assault, child abuse, and first degree burglary as a

crime of violence. He argues that (1) the prosecution presented

insufficient evidence to prove that the victim suffered serious bodily

injury; (2) the district court erred by excluding a defense witness;

and (3) the trespass and burglary convictions must merge. We

agree with the last contention, reverse that portion of the judgment,

and remand to the district court to merge the trespass and burglary

convictions and amend the mittimus accordingly. We otherwise

affirm the judgment.

I. Background

¶2 One summer evening, the victim — Tryels’ former romantic

partner and the mother of his child — was at her apartment with

her sister, their grandmother, and three children. The victim’s

sister heard someone banging on the door. When she opened the

door, Tryels and an unknown woman “busted” into the apartment.

¶3 Upon entering the apartment, the woman punched the victim’s

sister in the face while Tryels headed straight toward the victim’s

bedroom. Tryels forced his way into the bedroom, knocked the

1 victim backward into a dresser, and began strangling her with both

hands for about forty-five seconds. After the victim fell to the

ground, Tryels punched her in the face and began strangling her

again. During the second strangling, the victim felt like she was

going to have a seizure and “blacked out.”

¶4 As Tryels was strangling the victim, the victim’s sister saw

their grandmother trying to pull Tryels off the victim. The victim’s

sister then went to a neighbor’s home and called 911.

¶5 The next thing the victim remembered was waking up in the

hospital.

¶6 The prosecution charged Tryels with violation of a protection

order, first degree assault, first degree trespass, third degree

assault, child abuse, first degree burglary as a crime of violence,

criminal mischief, and telephone obstruction.1

¶7 After a four-day trial, the jury acquitted Tryels of criminal

mischief and telephone obstruction but convicted him of the

remaining charges.

1 The prosecution bifurcated the violation of a protection order

count and later dismissed it.

2 ¶8 The district court sentenced Tryels to a controlling sentence of

fifteen years in prison.

II. Sufficiency of the Evidence

¶9 Tryels contends that the prosecution failed to present

sufficient evidence to establish serious bodily injury, which is an

element of first degree assault and a sentence enhancer for first

degree burglary. We disagree.

¶ 10 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the defendant’s conviction.” Johnson v. People, 2023 CO

7, ¶ 13 (citation omitted). To do that, we consider whether the

evidence, 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 charges

beyond a reasonable doubt. Id. (citation omitted).

¶ 11 As relevant here, a person commits assault in the first degree

by strangulation if, “[w]ith the intent to cause serious bodily injury,

he . . . applies sufficient pressure to impede or restrict the

breathing or circulation of the blood of another person by applying

such pressure to the neck . . . of the other person and thereby

3 causes serious bodily injury.” § 18-3-202(1)(g), C.R.S. 2025. And

with respect to first degree burglary, a person is subject to crime of

violence sentencing if he causes serious bodily injury to any person

except another participant during the commission of the crime or in

the immediate flight therefrom. See § 18-1.3-406(2)(a)(I)(B),

(2)(a)(II)(H), C.R.S. 2025.

¶ 12 Serious bodily injury means, as pertinent here, “bodily injury

that, either at the time of the actual injury or at a later time,

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),

C.R.S. 2025.

¶ 13 At trial, the victim testified that Tryels put both of his hands

on her neck twice and confirmed that she lost consciousness during

the second incident. She said she remembered feeling like she was

going to have a seizure, “blacked out,” and woke up in a hospital.

¶ 14 The jury also heard from a forensic nurse examiner (FNE) who

conducted a physical exam and strangulation assessment when the

victim was in the hospital. The FNE documented signs of

strangulation, including petechiae inside the victim’s cheek and

bruising around her neck. And she documented the victim’s

4 reported symptoms, including loss of consciousness during the

strangulation and post-strangulation neck pain, neck swelling,

headache, numbness, weakness, and memory loss.

¶ 15 The FNE also explained to the jury that when blood doesn’t get

to the brain — known as an anoxic event — the result is permanent

brain cell death. And she testified that if someone loses

consciousness, “they had an anoxic event.” Based on the victim’s

description of events and reported loss of consciousness, the FNE

opined that the victim had suffered a serious bodily injury,

specifically, “an anoxic” injury that resulted in “substantial risk of

protracted loss or impairment of an organ, which was the brain.”

¶ 16 An emergency room doctor testified that although he did not

examine the victim, he reviewed her CT scan, which showed “no

immediate risk of death.”2 Based on the negative CT scan, the

doctor found no serious bodily injury. But he confirmed that a CT

scan doesn’t show all injuries. And while he did not opine on

2 The doctor testified that a CT scan, or a CAT scan, is “a machine

that you go into. There’s a computer that sends radiation into [your] body.” Then “[c]ertain tissues reflect this radiation,” which “comes back to the machine so it can generate pictures on a computer screen.”

5 whether the victim had suffered an anoxic event, the doctor agreed

that “at some point if you cut off oxygen to somebody’s brain, brain

cells will die.” And once those brain cells die, they are “gone

forever.”

¶ 17 Viewing this evidence in the light most favorable to the

prosecution, there was substantial and sufficient evidence from

which the jury could reasonably find beyond a reasonable doubt

that Tryels inflicted serious bodily injury on the victim.

¶ 18 Even so, Tryels insists that the evidence showed only that the

victim “could have lost one or more brain cells,” not that she

suffered any actual injury from the strangulation. That’s not

correct. As just detailed, substantial evidence showed that the

victim suffered anoxia. And both the forensic nurse examiner and

the emergency room doctor confirmed that anoxia results in the

permanent loss of brain cells. Neither testified that anoxia “could

have resulted” in the loss of brain cells. Thus, the evidence was not

speculative; it was tethered directly to the victim’s actual injury —

the lack of oxygen to her brain resulting in the permanent loss of

6 brain cells. And Tryels doesn’t dispute that the brain is an “organ

of the body.” § 18-1-901(3)(p).3

¶ 19 People v. Vigil, 2021 CO 46, and Stroup v. People, 656 P.2d 680

(Colo. 1982), on which Tryels relies, don’t change anything. While

Vigil and Stroup conclude that evidence about the risk generally

associated with the type of conduct or injury is insufficient to prove

a serious bodily injury, both agree that “the facts of the actual

injury control” the serious bodily injury determination. Vigil, ¶ 33;

see Stroup, 656 P.2d at 685. And here the victim’s actual injury

supports the jury’s serious bodily injury finding.

¶ 20 To the extent Tryels alternatively asks us to draw different

inferences from the negative CT scan, the lack of expert testimony

about the victim’s epilepsy, or the lack of more specific evidence of

brain impairment — such as evidence about the victim’s memory

before and after the strangulation — we won’t do that. The jury

weighs the evidence and resolves evidentiary conflicts or

3 Because we conclude that the evidence was substantial and

sufficient to show that the victim suffered an anoxic event, we don’t address Tryels’ argument challenging the forensic nurse examiner’s determination that the victim suffered a “probable concussion,” which the nurse also concluded was a serious bodily injury.

7 inconsistencies.4 See People v. Perez, 2016 CO 12, ¶ 25 (in

conducting a sufficiency analysis, we do not “serve as a thirteenth

juror or invade the province of the jury” (citation omitted)).

¶ 21 For these reasons, we conclude that sufficient evidence

supported the jury’s finding that Tryels caused serious bodily

injury.

III. Witness Exclusion

¶ 22 Tryels next contends that reversal is required because the

district court excluded a defense witness — Amari Parks — from

testifying at trial as a sanction for defense counsel’s failure to timely

endorse Parks under Crim. P. 16. We aren’t persuaded.

¶ 23 Before trial, the parties knew that Parks was possibly the

woman who entered the victim’s apartment with Tryels and

assaulted the victim’s sister. But defense counsel did not endorse

Parks as a defense witness.

4 And indeed, that’s what defense counsel argued in closing

argument. He specifically pointed the jury to the doctor’s testimony about the negative CT scan and the doctor’s lack of serious bodily injury finding and argued that the jury should credit the testimony of the doctor over that of the forensic nurse examiner.

8 ¶ 24 On the third day of trial, defense counsel informed the court

that Parks was present, and that he intended to call her as a

witness. He explained that she would testify that she was not

present when Tryels strangled the victim and that she did not

assault the victim’s sister.

¶ 25 The prosecution objected, arguing that the endorsement was

untimely, unfair, and irrelevant, and asked the court to preclude

Parks.

¶ 26 The court found that the defense had been aware for several

months that Parks would testify she wasn’t with Tryels in the

victim’s apartment, the defense could have timely endorsed her,

and her testimony had limited relevance. The court was also

concerned about Parks’ possible Fifth Amendment rights (since the

victim’s sister raised the possibility that Parks was the woman who

had assaulted the sister). Considering all this, the court barred the

defense from calling Parks to testify.

¶ 27 Rule 16 governs discovery in criminal cases. People v. Dye,

2024 CO 2, ¶ 36. For felony charges, it requires the defense to

disclose no less than thirty-five days before trial “the names and

9 addresses of persons whom the defense intends to call as witnesses

at trial.” Crim. P. 16(II)(c).

¶ 28 When — as here — the defense doesn’t timely disclose a trial

witness, a district court has broad discretion to determine an

appropriate sanction. See People v. Whittington, 2024 CO 65, ¶ 17.

A court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. People v.

Knisley, 2022 CO 59, ¶ 21.

¶ 29 To craft an appropriate discovery sanction, the court must

consider (1) the reason for and degree of culpability associated with

the discovery violation; (2) any prejudice to the other party;

(3) whether any circumstances mitigate such prejudice;

(4) reasonable and less drastic alternatives to exclusion; and

(5) other relevant facts. People v. Tippet, 2023 CO 61, ¶ 37.

¶ 30 Though the court didn’t expressly list the Tippet factors in its

discussion regarding the defense’s failure to comply with Rule 16,

we conclude that it considered the appropriate factors when it

barred Parks from testifying. The court highlighted that the defense

had known about Parks for many months and knew the substance

of her testimony, yet “the proper endorsement was not made.” It

10 also noted that any testimony that Parks was not present during

the charged crimes was minimally relevant. Beyond that, implicitly

contemplating less drastic alternatives to exclusion, the court

expressed concern that Parks was “a witness who probably need[ed]

counsel” to address her Fifth Amendment rights. And it observed

that “had [Parks] been properly endorsed, we could have addressed

this at the beginning of trial.” But given the late endorsement, the

court was unable to secure counsel to advise Parks in the middle of

trial.

¶ 31 Under these circumstances, we cannot conclude that the court

abused its discretion by barring an unendorsed witness long known

to the defense. See People v. Dist. Ct., 808 P.2d 831, 838 (Colo.

1991) (an appellate court defers to a district court’s factual finding

regarding the nature of a discovery violation if it is supported by

competent evidence in the record).

¶ 32 Even had the court erred — and we don’t think it did — Parks’

proposed testimony that she wasn’t at the victim’s apartment and

thus could not have witnessed any of the events at issue added

nothing to Tryels’ defense (which was general denial). Excluding

11 that testimony did not affect the trial’s outcome under any standard

of reversal.

IV. Merger

¶ 33 Tryels argues that first degree trespass is a lesser included

offense of first degree burglary, and, accordingly, that his trespass

conviction should merge into his burglary conviction. See Reyna-

Abarca v. People, 2017 CO 15, ¶ 64 (discussing lesser included

offenses). The People agree, and under the facts presented here, so

do we. See People v. Miller, 2024 COA 66, ¶ 70 (“[F]irst degree

criminal trespass is a lesser included offense of first degree

burglary . . . .”); see also Whiteaker v. People, 2024 CO 25, ¶ 20

(holding that first degree criminal trespass is a lesser included

offense of second degree burglary). We therefore reverse and

remand to the district court to merge the trespass and burglary

convictions. .

V. Disposition

¶ 34 The portion of the judgment showing separate convictions for

trespass and burglary is reversed. We remand to the district court

to merge the trespass and burglary convictions and amend the

mittimus accordingly. The judgment is otherwise affirmed.

12 JUDGE MOULTRIE and JUDGE HAWTHORNE concur.