Peo v. Turner

• Court: Colorado Court of Appeals
• Decided: April 3, 2025
• Docket: 23CA340
• Status: Unpublished

Opinion

23CA0340 Peo v Turner 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0340 Garfield County District Court No. 20CR356 Honorable James B. Boyd, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeffrey H. Turner,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE LUM Fox and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Daniel Kent, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Jeffrey H. Turner, appeals his conviction for

driving under the influence (DUI) – fourth or subsequent offense.

We affirm.

I. Background

¶2 On May 8, 2020, Trooper Charles Hiller initiated a traffic stop

on I-70 of a black Rav 4 traveling at ninety-three miles per hour.

The vehicle moved into the right lane and exited the interstate for

the stop. Trooper Hiller spoke to Turner, who was driving the

vehicle. He noted that Turner had glassy eyes and that a strong

odor of marijuana was present inside the vehicle. Trooper Hiller

asked Turner if he had consumed marijuana. Turner said he had

smoked a joint and a “dab”1 earlier that day.

¶3 Trooper Hiller asked Turner to exit the vehicle and noted the

smell of marijuana on his breath and a green residue on his tongue.

He then administered voluntary field sobriety tests. Based on the

results of the tests, Trooper Hiller believed Turner to be impaired

and arrested him. Trooper Hiller found marijuana and marijuana

1 At trial, Trooper Hiller testified, “A dab is usually like a pipe with

marijuana concentrate or like wax or like the oily substance that is marijuana . . . heated up and smoked.”

1 paraphernalia during a search of Turner’s car. Turner was

informed of Colorado’s express consent laws and agreed to a blood

test, after which he was taken to a hotel room for the evening.2

¶4 Turner was charged with DUI – fourth or subsequent offense;

speeding; no proof of insurance; illegal use, possession, or

consumption of marijuana in a vehicle; and illegal possession or

consumption of alcohol in a vehicle. A jury found him guilty as

charged. Turner was sentenced to two years in the Department of

Corrections for the DUI conviction with a concurrent thirty days in

jail for the proof of insurance conviction, and the court imposed

various fines.

¶5 Turner appeals his conviction for DUI.

II. Expert Testimony

¶6 Turner first contends that the trial court erred by permitting

Trooper Hiller’s testimony about the administration and

interpretation of certain standardized field sobriety tests (SFSTs)

and tests learned through the Advanced Roadside Impaired Driving

2 Trooper Hiller transported Turner to a hotel rather than to jail

because of the jail’s COVID restrictions and because Turner had several live reptiles in the car when he was pulled over.

2 Enforcement (ARIDE) course (collectively, roadside maneuvers). We

disagree.

A. Additional Facts

¶7 At trial, the prosecution elicited the following testimony from

Trooper Hiller.

¶8 Trooper Hiller had been employed in law enforcement from

2005 to 2020. Over the course of his career, he conducted more

than 500 DUI investigations.

¶9 As part of his training and education, Trooper Hiller had taken

courses on detecting impaired driving and drug symptomology,

including the administration and interpretation of roadside

maneuvers. He had also observed the effects of marijuana on the

performance of roadside maneuvers during “green labs.”3

¶ 10 The SFSTs consist of the horizontal gaze nystagmus (HGN),

vertical gaze nystagmus (VGN), walk-and-turn, and one-legged

stand tests. Turner’s performance on the HGN and VGN tests

didn’t indicate that he was impaired, but Trooper Hiller informally

observed that he wasn’t able to follow instructions during

3 In a green lab, participants consume marijuana, and officers

administer roadside maneuvers to observe their performance.

3 administration of the HGN test. Turner also didn’t “ma[ke] it past

the instruction phase” of the walk-and-turn test, and he

demonstrated impairment on the one-legged stand test.

¶ 11 Trooper Hiller also administered two ARIDE maneuvers — the

modified Romberg test (measuring a person’s internal clock) and the

lack of convergence test (measuring a person’s ability to converge

their eyes to specific point). Turner performed just outside the

normal range on the modified Romberg test, indicating impairment.

His performance on the lack of convergence test is unclear from the

record.

¶ 12 Given Turner’s overall performance on the roadside maneuvers

and the other observations Trooper Hiller made during the stop,

Trooper Hiller believed Turner was impaired.

B. Standard of Review and Applicable Law

¶ 13 Because Turner didn’t object to any of Trooper Hiller’s

testimony, we review for plain error. See Hagos v. People, 2012 CO

63, ¶ 14. Plain error occurs when the error is obvious and “so

undermines the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

Cardman v. People, 2019 CO 73, ¶ 19.

4 ¶ 14 A lay witness’s testimony is limited to opinions or inferences

that are (1) “rationally based on the perception of the witness”;

(2) “helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue”; and (3) “not based on scientific,

technical, or other specialized knowledge within the scope of [CRE]

702.” CRE 701.

¶ 15 Conversely, “if scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise.” CRE 702. A court

may not admit expert testimony under the guise of lay opinion.

Venalonzo v. People, 2017 CO 9, ¶ 31.

C. Analysis

¶ 16 Turner contends that Trooper Hiller’s testimony about the

VGN, HGN, lack of convergence, and modified Romberg tests, as

well as his testimony about Turner’s impairment based on the

results of those tests, was inadmissible because it was expert

testimony in the guise of lay testimony.

5 ¶ 17 We agree that at least some of Trooper Hiller’s testimony was

expert testimony. See Campbell v. People, 2019 CO 66, ¶ 31

(holding that the administration and interpretation of the HGN test

is expert testimony). Nevertheless, we conclude that the court

didn’t err by admitting it. A party calling an expert witness need

not formally offer, and the trial court need not formally accept, the

witness as an expert to admit the expert’s testimony so long as the

testimony meets the requirements of CRE 702 and is based on

generally reliable scientific principles4 as set forth in People v.

Shreck, 22 P.3d 68, 78-79 (Colo. 2001). People v. Martinez, 2024

CO 69, ¶¶ 27-36.5

¶ 18 To the extent the administration and interpretation of roadside

maneuvers is expert testimony, Trooper Hiller was qualified to give

4 Turner doesn’t suggest that the scientific principles behind

roadside maneuvers are unreliable such that testimony about the administration and results of those tests would be inadmissible under People v. Shreck, 22 P.3d 68 (Colo. 2001). Accordingly, we don’t analyze this component of expert testimony admissibility. 5 Although Turner doesn’t raise any argument about expert

disclosure, we note that the prosecution disclosed Trooper Hiller as an expert in field sobriety tests approximately six months before trial. See People v. Martinez, 2024 CO 69, ¶ 32 (noting that cases ruling that expert testimony was improperly admitted as lay testimony were concerned with absence of pretrial disclosure of expert witnesses).

6 that testimony by his training and experience. Moreover, the

testimony was useful to the jury because whether Turner was

under the influence due to his marijuana usage was the primary

issue disputed at trial. Thus, Trooper Hiller’s testimony was

properly admitted as expert testimony.

¶ 19 Even assuming the court erred, however, the error wasn’t

substantial. The administration and results of the HGN and VGN

tests didn’t prejudice Turner because he didn’t display signs of

impairment under those tests. Likewise, while Trooper Hiller

testified about what the lack of convergence test was designed to

measure, he didn’t testify that Turner demonstrated impairment

during that test.

¶ 20 The only expert testimony that arguably prejudiced Turner

was the testimony about the modified Romberg test and the results

thereof. However, we can’t conclude that the exclusion of this

testimony would have significantly impacted the outcome at trial.

Trooper Hiller’s overall opinion regarding Turner’s impairment was

based not only on the modified Romberg test but also on (1) the

results of the walk-and-turn test (specifically, Turner’s inability to

follow instructions); (2) Turner’s performance on the one-legged

7 stand test; and (3) Trooper Hiller’s informal observations of Turner’s

appearance, comportment, and inability to follow directions.

Turner doesn’t challenge the admissibility of the walk-and-turn or

one-legged stand test testimony on appeal. And to the extent

Trooper Hiller’s opinion was based on informal observations, it

required no expertise. Cf. People v. Souva, 141 P.3d 845, 850 (Colo.

App. 2005) (certified addiction counselor who had “experience

dealing with . . . people who used drugs” could offer lay testimony

that defendant was under the influence when she observed him).

¶ 21 Furthermore, Trooper Hiller’s testimony wasn’t the only

support for Turner’s conviction. The jury also saw video footage of

the roadside maneuvers, parts of which showed that Turner was

unsteady on his feet, confused, and had trouble following Trooper

Hiller’s instructions. And the jury could infer that Turner was

under the influence from the amount of tetrahydrocannabinol (THC)

in his blood. See infra Part III.C.

¶ 22 Accordingly, even if the court erred by admitting the

challenged testimony, its admission doesn’t cast serious doubt on

the reliability of the judgment of conviction. See Cardman, ¶ 19.

8 III. Prosecution’s Repeated Usage of “Legal Limit”

¶ 23 Turner argues that the prosecution misstated the law and

improperly lowered its burden of proof by repeatedly referring to the

five-nanogram-per-milliliter permissive inference set forth in section

42-4-1301(6)(a)(IV), C.R.S. 2024, as the “legal limit” for THC

concentration in the blood while operating a vehicle. We conclude

that any error wasn’t plain.

A. Applicable Law and Standard of Review

¶ 24 In Colorado, a driver who has consumed THC is “[d]riving

under the influence” if the THC renders the driver “substantially

incapable, . . . mentally or physically, . . . to exercise clear

judgment, sufficient physical control, or due care in the safe

operation of a vehicle.” § 42-4-1301(1)(f). If a driver’s blood is

shown to contain “five nanograms or more of delta 9-[THC] per

milliliter . . . such fact gives rise to a permissible inference that the

defendant was under the influence.” § 42-4-1301(6)(a)(IV). A

permissible inference doesn’t shift the burden of proof to the

defendant “but instead allows the trier of fact to find the inferred

fact from the proof of the predicate fact.” People v. Felgar, 58 P.3d

1122, 1124 (Colo. App. 2002).

9 ¶ 25 While an individual whose blood alcohol concentration is 0.08

or more commits DUI per se, no similar “per se” violation exists for

driving under the influence of THC. See § 42-4-1301(2)(a).

¶ 26 “Although a prosecutor may argue all reasonable inferences

from the evidence in the record, [they] may not misstate or

misinterpret the law . . . .” People v. McMinn, 2013 COA 94, ¶ 62

(first citing People v. Cevallos–Acosta, 140 P.3d 116, 122 (Colo. App.

2005); and then citing People v. Walters, 148 P.3d 331, 334 (Colo.

App. 2006)). We review a claim of prosecutorial misconduct in two

steps. People v. Rhea, 2014 COA 60, ¶ 40. We first determine

whether misconduct occurred based on the totality of the

circumstances. Id. If we conclude it did, we determine whether it

warrants reversal according to the proper standard of review. Id.

¶ 27 Because Turner didn’t preserve this issue, we review it for

plain error. See Hagos, ¶ 14

B. Additional Facts

¶ 28 The prosecution presented evidence of Turner’s blood test

results, which showed that he had eighteen nanograms per milliliter

of THC in his blood approximately one hour after he was pulled

over.

10 ¶ 29 Throughout the trial, the prosecution used the terms “legal

limit” or “limit” to describe the five-nanogram-per-milliliter level that

gives rise to a permissible inference of THC intoxication under

Colorado law. For instance, during opening statements, the

prosecution informed the jury, “You will . . . hear, at the close of

evidence, that the limit for [THC] is 5 nanograms. So the defendant

was driving with three times more than the legal limit of marijuana

in his system.” (Emphases added.) And during rebuttal closings,

the prosecutor said:

[T]his defendant thought he was fine, he thought it was okay to get up, have his french toast, smoke a joint and then make a couple of stops, and eight hours later, having traveled approximately 45 miles, be more than three times the legal limit of THC in his system.

(Emphasis added.) All in all, during the opening and rebuttal

closing statements, the prosecution referred to the “limit” or “legal

limit” eleven times.

¶ 30 The term also came up during testimony: The toxicologist who

analyzed Turner’s blood sample said that she was aware that five

nanograms per milliliter was Colorado’s “legal limit” for THC levels

while driving. And during Turner’s cross-examination, the

11 prosecution characterized the five-nanogram permissible inference

level as a “legal limit” five times.

¶ 31 Defense counsel didn’t object to any of these characterizations.

¶ 32 Turner argues that the prosecution’s characterization of the

five-nanogram-per-milliliter threshold as a “legal limit” constituted

misconduct warranting reversal. Specifically, Turner contends that,

by referring to the permissive inference as a “legal limit,” the

prosecution “created an appearance of a rebuttable presumption”

that being over the five-nanogram-per-milliliter threshold was

automatic grounds for conviction, which lowered the prosecution’s

burden of proof. Assuming, without deciding, that the prosecution

erred by using the term “legal limit” and that the error was obvious,

we nevertheless conclude that the error was not substantial in light

of the strength and quantity of the evidence of Turner’s intoxication

presented at trial.

¶ 33 “Plain error occurs only when, after review of the entire record,

the appellate court concludes that the error undermined the

fundamental fairness of the trial.” People v. Miller, 113 P.3d 743,

745 (Colo. 2005). The record reflects that the jury received a

12 written instruction that (1) accurately explained the permissible

inference; (2) informed the jury that the permissible inference

“allows, but does not require, you to find a fact from proof of

another fact or facts, if that conclusion is justified by the evidence

as a whole”; and (3) reminded the jury that the prosecution bore the

burden of proof and that “a permissible inference does not shift that

burden to the defendant.” Moreover, overwhelming evidence

supported Turner’s conviction:

• The jury could infer that Turner was under the influence

based on the concentration of THC in his blood.

• As described in Part II.A, above, Trooper Hiller testified

that he believed Turner was under the influence based on

Turner’s performance on the roadside maneuvers.

• As described in Part II.C, above, the video footage showed

Turner’s uneven performance during the roadside

maneuvers.

• When pulled over, Turner made a wide lane change,

hitting the white lines demarcating the right side of the

lane.

13 • Trooper Hiller observed Turner fumbling with his

identification documents when asked to produce them

and found several marijuana containers and other drug

paraphernalia in his car.

¶ 34 Given the strength of the evidence and the jury instructions,

we cannot conclude that the prosecution’s repeated use of the

phrase “legal limit” casts “serious doubt on the reliability of the

judgment of conviction” in this case. Cardman, ¶ 19. We therefore

discern no plain error.

IV. Limiting Instruction Regarding Prior Conviction Records

¶ 35 On the second day of trial, the prosecution presented certified

records of Turner’s four prior DUI convictions to prove that this was

his fourth or subsequent offense. See People v. Herold, 2024 COA

53, ¶¶ 12-13 (noting that prior convictions are an element of felony

DUI that must be proved beyond a reasonable doubt).

14 ¶ 36 Defense counsel didn’t argue that the records prejudiced

Turner or ask for a limiting instruction,6 and the records were

admitted into evidence.

¶ 37 Turner argues that the court erred by failing to sua sponte

instruct the jury that the evidence of prior convictions could not be

used to prove that he drove under the influence on this occasion.

We disagree.

B. Analysis

¶ 38 We review a trial court’s evidentiary rulings for an abuse of

discretion. Campbell, ¶ 21. A trial court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable or unfair. Id.

Because Turner didn’t request a limiting instruction, we review for

plain error. See People v. Griffin, 224 P.3d 292, 298 (Colo. App.

2009).

¶ 39 We perceive no error because the court was not required to

issue a limiting instruction sua sponte. See id. at 298-99. Absent a

special statutory requirement or a timely request by either party to

instruct the jury on the limited purpose of a particular piece of

6 Defense counsel objected (and was overruled) on other grounds

not relevant to this appeal.

15 evidence, a court is not required to give a limiting instruction. Id.

Instead, “[a]s a general rule, defense counsel is charged with the

task of deciding whether a limiting instruction is desirable.” Id. at

298.

V. Cumulative Error

¶ 40 Finally, Turner contends that the combined effect of the

foregoing alleged errors warrants reversal of his conviction.

¶ 41 “The doctrine of cumulative error requires that numerous

errors be committed, not merely alleged.” People v. Conyac, 2014

COA 8M, ¶ 152. Under the cumulative error standard, a conviction

will be reversed only if the aggregate impact of any errors

substantially prejudiced a defendant’s right to a fair trial. Id.

¶ 42 Here, we assumed one trial error with respect to Turner’s

claim that the prosecution committed misconduct by continually

utilizing the phrase “legal limit,” but we perceived no error on the

expert testimony and limiting instruction contentions. Because we

do not discern more than one trial error in this case, cumulative

error is inapplicable. See id.

16 VI. Disposition

¶ 43 The judgment of conviction for DUI – fourth or subsequent

offense is affirmed. The portions of the judgment not affected by

this appeal remain undisturbed.

JUDGE FOX and JUDGE GOMEZ concur.