24CA0177 Peo v Vernagallo 04-09-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0177 Douglas County District Court No. 21CR736 Honorable Natalie Strickland, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Vincente Tyler Vernagallo,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHUTZ Brown and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 9, 2026
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, River B. Sedaka, 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, Vicente Tyler Vernagallo, appeals the trial court’s
judgment of conviction entered on a jury verdict finding him guilty
of two counts of felony menacing. We affirm the judgment.
I. Background and Procedural History
¶2 Prior to the events leading to his convictions, Vernagallo was
diagnosed with schizoaffective and bipolar disorders, for which he
had been repeatedly hospitalized. Family members were aware of
his condition.
A. Incident and Arrest
¶3 In August 2021, Vernagallo went to his mother’s house
carrying an Airsoft1 carbon dioxide (CO2) powered revolver and its
bullets, which contain plastic pellets. The revolver and bullets
closely resemble a real firearm and ammunition. Prior to arriving at
the home, Vernagallo removed the gun’s CO2 cartridge,2 which is
required to fire the gun. Vernagallo went to the garage — a space
1 Airsoft guns are non-lethal replica guns that are used for
entertainment, simulated combat training, or competitive target practice. 2 In order for this Airsoft revolver to fire, the user must insert a CO2
cannister into the bottom of the gun. Once the cannister is inserted, if the user pulls the trigger pressurized air expels and discharges a bullet. If the CO2 cannister is not loaded, the gun cannot discharge.
1 where family and friends often congregated — to visit his sister,
Britney Bond, and her boyfriend, Dillon Adame.
¶4 Bond testified that, while in the garage, Vernagallo slapped the
revolver onto the table, removed the bullets, and then reloaded one
bullet into one of the cylinder’s chambers. He then spun the
cylinder, held the gun to his head, smiled, said “hi,” and pulled the
trigger. Vernagallo then abruptly pointed the gun at Bond, holding
it about five inches from her forehead, and pulled the trigger. The
gun did not go off because unbeknownst to Bond and Adame,
Vernagallo had removed the CO2 cannister.
¶5 Adame, who witnessed Vernagallo pull the trigger, yelled at
Bond to run. Bond testified that she was worried about Vernagallo
shooting her in the back because she believed that the gun was
real. Bond and Adame ran into the driveway and fled down the
block. Vernagallo followed in his car and pointed the gun at them
through the car window. They ran to a neighbor’s house and asked
for help. The neighbor called the police.
¶6 Shortly after, the police pulled over Vernagallo’s car.
Approximately five armed officers were present. Vernagallo was
ordered to step out of his car. Sergeant Mark Terreault, an officer
2 who backed up the arresting officers, testified that the 911
dispatcher told them that Vernagallo was armed, so they asked him
to lift his shirt. Rather than lifting his shirt, Vernagallo took it off.
¶7 Officer Brandon Litwiller arrested Vernagallo, handcuffed him,
and placed him in the back of his patrol car. Litwiller then read
Vernagallo his Miranda3 rights and asked him if he wanted to talk
to them. He responded “sir, yes sir” and proceeded to talk to the
officers. Vernagallo stated that neither Bond nor Adame knew that
the Airsoft gun was not a lethal weapon. He acknowledged pointing
the gun at Bond and Adame as a joke and following them down the
street because he was “bored” and “thought it would be fun.” He
also admitted that he pointed the Airsoft gun at Bond and Adame
with the intent to scare them. Vernagallo apologized for
inconveniencing the officers and for the “joke” he played on Bond
and Adame.
¶8 Vernagallo was charged with two counts of felony burglary and
two counts of felony menacing. The prosecution later dismissed the
burglary charges.
3 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
3 B. Competency Issues, Trial, and Conviction
¶9 In September 2021, defense counsel moved for a competency
evaluation. The court promptly ordered the Department of Human
Services to conduct an initial evaluation at the county jail. The
next month, the trial court found Vernagallo incompetent to stand
trial, but he remained in jail until a bed became available at the
Colorado Mental Health Hospital in Pueblo (CMHHIP).4 In January
2022, Vernagallo was admitted to CMHHIP. In February 2022,
Vernagallo was forcibly medicated. That same month, a
psychiatrist affiliated with CMHHIP opined that Vernagallo was
competent to proceed to trial. The court set a final arraignment for
September.
¶ 10 Before the arraignment, defense counsel moved for a second
competency evaluation. Two months later, after a second
evaluation and opinion from a psychiatrist at CMHHIP, the court
4 The parties use the initialism associated with the Colorado Mental
Health Institute at Pueblo (CHMIP) in the briefing, however in September 2022, while this matter was being litigated, the Colorado Department of Human Services announced that CHMIP was renamed to the Colorado Mental Health Hospital in Pueblo (CMHHIP), and we refer to it as such. Colo. Dept. of Human Servs., Introducing Colorado’s new office of Civil and Forensic Mental Health (2022), https://perma.cc/4YH9-KK3Q.
4 found Vernagallo competent to stand trial. Vernagallo entered a not
guilty plea, and the trial was set for April 2023.
¶ 11 In March 2023, defense counsel filed a third competency
motion. In April, the trial court again found him incompetent to
stand trial and ordered him to be committed for inpatient
restoration. Vernagallo again resisted taking medications designed
to restore him to competency. After Vernagallo was forcibly
medicated pursuant to a court order, the court again found he was
competent and reset the trial for October.
¶ 12 After a two-day trial, the jury found Vernagallo guilty on both
menacing counts. The trial court sentenced him to three years of
supervised probation.5
II. Speedy Trial Claim
¶ 13 Vernagallo first contends that the trial court violated his
constitutional right to a speedy trial and requests that his
conviction be vacated. We conclude that the delay, while long —
5 In July 2024, the trial court revoked Vernagallo’s probation and
sentenced him to two years in the custody of the Department of Corrections, with credit for 594 days of presentence confinement. See Doulgas County Case No. 21CR736. The presentence confinement credit included 552 days for the period between his original arrest and his conviction on the menacing charges.
5 especially in light of the fact that Vernagallo was ultimately
convicted of two lower-level felonies and initially sentenced to three
years of probation — did not violate his constitutional right to a
speedy trial.
A. Standard of Review and Applicable Law
¶ 14 We review de novo whether a defendant’s speedy trial rights
have been violated.6 People v. Glaser, 250 P.3d 632, 636 (Colo. App.
2010).
¶ 15 The parties dispute whether Vernagallo’s claim was preserved.
Vernagallo asserted his speedy trial rights through “kites” sent to
the trial court requesting a fast and speedy trial by a jury of his
peers. The People argue that the trial court was not obligated to
consider Vernagallo’s pro se filings because he was represented by
counsel. See People v. Gess, 250 P.3d 734, 737 (Colo. App. 2010) (a
court may ignore a pro se motion filed by a defendant who is
represented by counsel). But this rule is relaxed when a
defendant’s lawyer has not asserted a speedy trial objection, and
6 Vernagallo asserts that the delays violated his constitutional right
to a speedy trial but does not argue that his statutory speedy trial rights were violated. See § 18-1-405, C.R.S 2025. Therefore, we do not consider that statute.
6 the defendant wishes to do so. See People v. Jefferson, 981 P.2d
613, 614 (Colo. App. 1998) (considering the merits of the
defendant’s pro se request for a speedy trial made while he was
represented by counsel); see also People v. Bergerud, 223 P.3d 686,
696-97 (Colo. 2010) (disfavoring denying review of an important
constitutional right merely because a defendant does not articulate
a concern with legal lexicon).
¶ 16 The United States Constitution and the Colorado Constitution
protect a defendant’s right to a speedy trial. U.S. Const. amend. VI;
Colo. Const. art. II § 16. Under both provisions, the right to a
speedy trial attaches with the filing of a formal charge. Moody v.
Corsentino, 843 P.2d 1355, 1363 (Colo. 1993). The defendant has
the burden to prove that his constitutional right to a speedy trial
was violated. Id. (citing People v. Small, 631 P.2d 148, 154 (Colo.
1981)).
¶ 17 To determine whether that right was violated, this court must
apply the test articulated in Barker v. Wingo, 407 U.S. 514, 530
(1972). Barker requires courts to weigh (1) the length of the delay;
(2) the reason for the delay; (3) the defendant’s assertion of his right
7 to a speedy trial; and (4) prejudice to the defendant. People v. West,
2019 COA 131, ¶ 11 (citing Barker, 407 U.S. at 530).
B. Analysis
¶ 18 Vernagallo focuses his speedy trial argument on the pretrial
delays associated with the competency proceedings. The People
respond that the delays caused by the state were justifiable and
that Vernagallo contributed to the delays by failing to cooperate
with the restoration process. Applying the Barker factors, we
conclude that Vernagallo’s constitutional speedy trial rights were
not violated.
1. Length of the Delay
¶ 19 The length of the delay initially functions as a “triggering
mechanism” that requires the court to consider whether the delay
length is “presumptively prejudicial.” West, ¶ 10 (citation omitted).
The delay between the date that Vernagallo was charged — which
took place in late August 2021 — and the trial — which did not take
place until October 2023 — was twenty-six months. Vernagallo
contends that the delay on its face is long enough to be
presumptively prejudicial, thus meriting further consideration of
the Barker factors. The People concede, and we agree, that the
8 twenty-six-month period was sufficient to trigger a presumption of
delay warranting further consideration of the Barker factors. See
People v. Sandoval-Candelaria, 2014 CO 21, ¶ 36 (“[T]he Supreme
Court has noted that courts generally have found delays
presumptively prejudicial at least as they approach one year.”
(citing Doggett v. United States, 505 U.S. 647, 652 n.1 (1992))).
¶ 20 While conceding that the twenty-six-month delay was
presumptively prejudicial, the People argue that the length of delay
is not determinative of whether Vernagallo’s speedy trial rights were
violated. They argue that there is no indication that the court or
the prosecution deliberately delayed the trial and that, without
evidence to the contrary, Vernagallo has failed to meet his burden
to prove that the court or the prosecution violated his speedy trial
rights. Relatedly, the People argue that the delays associated with
the competency evaluations were not unreasonable, particularly
because Vernagallo requested three separate evaluations and was
twice found incompetent.
¶ 21 Under the circumstances, which we address more fully in the
following analysis of the remaining Barker factors, we conclude that
the delays were insufficient to justify reversal under Barker.
9 2. Reason for the Delay
¶ 22 Both parties acknowledge that the restoration process played a
central role in the trial’s delay. Indeed, Vernagallo does not
meaningfully challenge any of the remaining periods of delay.
Where the parties differ is how much of the blame is attributable to
the court or the prosecution. See People v. DeGreat, 2020 CO 25,
¶ 17 (“It is well-settled law that the burden of compliance with the
speedy trial requirement rests with the prosecution and the trial
court.”). First, on the issue of how much of the delay should be
attributed to the prosecution or the court, Vernagallo acknowledges
that at least five months of the competency period are attributed to
the restoration process, which was lengthened due to Vernagallo’s
failure to cooperate with treatment. But Vernagallo argues that the
remaining nine months of the competency period should be
attributed to the state.7
7 The People calculate the period associated with the competency
evaluations to be seven months rather than nine months. We need to not resolve this question, however, because even if we assume the delay was nine months, it does not materially impact our analysis of the speedy trial issue.
10 ¶ 23 Vernagallo’s counsel raised competency concerns within a
month of when Vernagallo was charged. After a hearing, the trial
court found Vernagallo incompetent. He was placed in the custody
of Douglas County Jail from October until a bed became available
in CMHHIP. The time between the request for a competency
evaluation and the initial CMHHIP placement was 140 days.
¶ 24 Defense counsel raised competency for the second time in
September 2022. It took sixty-five days for Vernagallo to be found
competent.
¶ 25 In April 2023, the third time that defense counsel raised
competency concerns, it took fifty-two days for Vernagallo to be
evaluated and found incompetent. It was almost another month
before he was admitted to CMHHIP for restoration.
¶ 26 As Vernagallo notes, his counsel filed three separate motions
for competency evaluations. He does not contest that defense
counsel knew or should have known of the substantial delays
associated with these requests because of the lack of appropriate
state funding for competency evaluations, which was amplified by
the nursing crisis resulting from the COVID-19 pandemic. We
appreciate that defense counsel was obligated to raise the issue of
11 competency if they had a reason to know that Vernagallo was
incompetent. See § 16-8.5-102(b), C.R.S. 2025. But the repeated
requests, and Vernagallo’s resistance to treatment, made some
delay inevitable.
¶ 27 The People argue that the delays should not be attributed to
either the court or the prosecution because the competency process
is controlled by state employees that neither the court nor
prosecution control. Vernagallo responds that the delays should be
attributed to the court or the prosecution because this is a legally
mandated process and ultimately he should not be deprived of his
speedy trial rights due to the action or inaction of state officials.
See Vermont v. Brillon, 556 U.S. 81, 85 (2009) (stating that the state
may be charged with delays associated with a breakdown of the
public defender’s system while also noting that “delays sought by
counsel are ordinarily attributable to the defendants they
represent”).
¶ 28 But Vernagallo concedes that he is not aware of any authority
holding that delays in the competency process must be charged to
the prosecution or the court. Even so, we are troubled by the
People’s argument that incompetency delays should be excluded
12 from the speedy trial analysis. Ultimately, we do not need to resolve
this dispute because, even if we assume that the delays are
attributable to the court or the prosecution, the aggregate delay
attributable to the competency evaluations was not unreasonable.
¶ 29 The total time attributable to the competency delays, not
including delays associated with the restoration process, amounted
to 282 days, or approximately nine and a half months of the twenty-
six months between the filing of charges and the trial. Vernagallo
acknowledges that the balance of the competency delays was based
on his refusal to participate in the restoration process, rather than
delays in actually completing the evaluations.
¶ 30 We appreciate that Vernagallo struggled while incarcerated;
however, those struggles alone are insufficient to meet his burden
to prove that the delays were unjustified. Therefore, we cannot say
that the reasons for the delay weigh in his favor. See Small, 631
P.2d at 154 (the defendant bears the burden of showing that the
Barker factors establish a violation of his speedy trial rights).
3. Assertion of the Right to a Speedy Trial
¶ 31 While we have concluded that Vernagallo’s pro se filings were
adequate to preserve his speedy trial claim, we note that these
13 filings were thread-bare in terms of legal analysis. True, Vernagallo
asserted that he was often on lockdown, denied meals and hygiene,
and assaulted while awaiting restoration to competency. But these
allegations were typically mixed with a plethora of unrelated alleged
constitutional violations and past grievances, all of which were
devoid of legal analysis or authorities, including any analysis of the
Barker factors. See People v. Roberts, 2013 COA 50, ¶48 (declining
to address defendant’s speedy trial argument because, among other
reasons, he did not address any of the elements of the
constitutional right).
¶ 32 And notwithstanding Vernagallo’s pro se filings, defense
counsel never asserted that Vernagallo’s speedy trial rights were
being violated. On the contrary, defense counsel filed three
separate motions for competency evaluations, and at least one
motion for continuance.
¶ 33 Under these circumstances, Vernagallo’s undeveloped pro se
assertion of his speedy trial rights — while sufficient to preserve his
speedy trial claim — do not weigh in favor of finding a speedy trial
violation.
14 4. Prejudice as a Result of the Delay
¶ 34 This factor considers prejudice in the context of the
defendant’s interests that the constitutional speedy trial rights are
designed to protect, including the right to (1) “prevent oppressive
pretrial incarceration”; (2) “minimize anxiety and concern of the
accused”; and (3) “limit the possibility that the defense will be
impaired.” Barker, 407 U.S. at 532. Of these factors, “the most
serious is the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system.” Id.
¶ 35 Vernagallo asserts that the pretrial incarceration caused him
to suffer extreme anxiety, as well as abuse, and that he lacked
access to meals and hygiene resources, which exacerbated his
mental health struggles. But Vernagallo does not allege that the
passage of time prejudiced his preparation or the presentation of
his defense — for example, a loss of evidence, witnesses, or his own
memory of the events at issue.
¶ 36 The People amplify the absence of any suggestion that the
delay compromised Vernagallo’s ability to present a factual or legal
defense. The People also note that in his subsequent re-sentencing,
15 the court credited him for time served while he was in pretrial
confinement.
¶ 37 Considering the four Barker factors in the aggregate, we
conclude that the trial court did not violate Vernagallo’s speedy trial
rights. See People v. Curren, 2014 COA 59M, ¶ 40 (two-year delay
did not violate defendant’s federal or state speedy trial rights);
People v. Fears, 962 P.2d 272, 279 (Colo. App. 1997) (delay of three
years and four months did not violate defendant’s speedy trial
rights).
III. Miranda Claim
¶ 38 Vernagallo next contends that the trial court reversibly erred
by denying his motion to suppress because he did not knowingly
waive his Miranda rights. We disagree.
A. Additional Facts
¶ 39 Defense counsel moved to suppress the statements Vernagallo
made to police officers in the back of the police car on the basis that
he could not have knowingly waived his Miranda rights due to the
severity of his mental illness. The trial court set the matter for a
hearing, where it heard testimony from Sergeant Terreault and
Officer Litwiller.
16 ¶ 40 Terreault, who responded to the 911 call, testified that officers
treated the initial contact with Vernagallo as a high-risk stop due to
the indication that he was armed with a weapon. As a result,
approximately five officers were present at the time of arrest, and
they had their weapons drawn. Terreault — one of the officers
providing backup — testified that he observed Vernagallo
responding appropriately to the commands that other officers gave
him and that Vernagallo did not demonstrate any concerning
responses. He also testified that there was a note in the 911 call
that Vernagallo had mental health issues, but the note lacked any
diagnosis and did not indicate that there were limitations
associated with the mental illness.
¶ 41 Officer Litwiller — who questioned, handcuffed, and arrested
Vernagallo — testified that Vernagallo responded appropriately to
his commands and understood the questions that he was being
asked. Litwiller stated that while Vernagallo was handcuffed inside
of the patrol vehicle, he and the other questioning officer did not
have their weapons drawn. He also testified that he spoke to
Vernagallo for a “couple of minutes” after Vernagallo was placed in
the car and that Vernagallo seemed relaxed prior to the Miranda
17 advisement and gave responses indicating that he understood the
questions.
¶ 42 Defense counsel argued that Vernagallo’s unkempt and sweaty
appearance, his casual tone, the removal of his shirt (which he did
not put back on), and the later finding that he was incompetent to
stand trial, together suggests that he was not fully capable of
understanding the circumstances he was facing and the
consequences of incriminating himself.
¶ 43 The prosecutor responded that an evaluation to determine
competency focuses on a particular time and is driven by different
considerations than those used to determine whether a defendant
understood and knowingly waived his Miranda rights. The
prosecutor urged the court to review the body camera (bodycam)
footage of the advisement, waiver, and resulting interrogation,
arguing that the footage provided “compelling evidence” that
Vernagallo understood his Miranda rights. Moreover, the
prosecutor argued that a defendant’s mental health history is a
relevant, but not dispositive, factor when evaluating whether a
defendant’s waiver was knowing and intelligent under Miranda. See
People v. Kaiser, 32 P.3d 480, 486 (Colo. 2001) (“A defendant’s
18 mental capacity is important in determining whether [he] made a
knowing and intelligent waiver, however it should not be the only,
or even the primary, factor in a trial court’s analysis.”). Given the
totality of the circumstances, the prosecutor argued the trial court
should find the waiver was knowing, voluntary, and intelligent.
¶ 44 The court denied the suppression motion after making the
following findings:
I will tell you when I read through this over the weekend, I was concerned a bit, but after watching the [bodycam] footage and hearing the defendant’s responses, I’m satisfied based on the totality of the circumstances that he did understand the commands, that he responded to the commands appropriately, and that he did knowingly and voluntarily and intelligently waive his right to Miranda.
He seemed calm. I don’t think that’s dispositive. He seemed — his appearance is what his appearance is. That’s certainly not dispositive even in combination with the fact that he may have been sweaty or casual to indicate to the officers that he didn’t understand commands, that he didn’t fully appreciate what was going on. Even with the mental health flag, the officers were both pretty firm in their testimony that he pulled over appropriately, responded appropriately to commands, and understood their commands and responded appropriately.
19 So the [c]ourt will find under the totality of circumstances that his Miranda [rights were] knowingly, voluntarily, and intelligently waived.
B. Standard of Review and Applicable Law
¶ 45 Generally, we review a trial court’s ruling on a motion to
suppress as a mixed question of law and fact. Gow v. People, 2019
CO 30, ¶ 13. We defer to the court’s factual findings if they are
supported by the record but review its legal conclusions de novo.
Id. If the statements sought to be suppressed are recorded,
however, we may independently review the recording. See People v.
Kutlak, 2016 CO 1, ¶ 13. In such circumstances, we are in the
same position as the trial court to weigh the import of the
recording, and assuming other material facts are not disputed, our
entire review is de novo. People v. Sellers, 2022 COA 102, ¶ 9.
¶ 46 Defendants in criminal cases have a constitutional right
against self-incrimination. U.S. Const. amend. V; Colo. Const. art.
II, § 18; Miranda v. Arizona, 384 U.S. 436, 444 (1966); People v.
Aguilar-Ramos, 86 P.3d 397, 400 (Colo. 2004). Under Miranda, the
prosecution may not use a statement obtained by police during a
custodial interrogation in its case-in-chief unless the suspect was
20 advised of, and validly waived, their Fifth Amendment rights.
People v. Alemayehu, 2021 COA 69, ¶ 73 (citing People v. Wood, 135
P.3d 744, 749 (Colo. 2006)). The prosecution must show by a
preponderance of the evidence that the waiver was valid. People v.
Smiley, 2023 CO 36, ¶ 15 (citing Berghuis v. Thompkins, 560 U.S.
370, 383-84 (2010)).
¶ 47 “A waiver is knowing and intelligent when made with full
awareness of the nature of the right being abandoned and the
consequences of the decision to abandon it.” People v. Platt, 81
P.3d 1060, 1065 (Colo. 2004); People v. Hopkins, 774 P.2d 849, 851
(Colo. 1989).
¶ 48 Generally, to determine whether a waiver is knowing
voluntary, and intelligent, courts may consider a number of factors:
(1) the lapse of time between an initial Miranda advisement and a subsequent interrogation, (2) the extent to which a suspect has been informed or is aware of the subject matter of the interrogation prior to its commencement, (3) whether the accused or the interrogating officer initiated the interview, (4) whether and to what extent the accused was reminded of his rights prior to the interrogation, (5) the clarity and form of the defendant’s acknowledgement and waiver, if any, and (6) the background and experience of the accused in connection with the criminal justice system.
21 People v. Humphrey, 132 P.3d 352, 356 (Colo. App. 2006).
¶ 49 When a defendant’s competency is raised, the court may
consider additional factors when evaluating whether the Miranda
waiver was voluntary, including whether the defendant:
• appeared oriented to their surroundings and situation;
• answered questions in a way that was responsive and
rational;
• appreciated the seriousness of their predicament,
including the possibility of being incarcerated;
• attempted to deceive the police;
• expressed remorse for their conduct; and
• expressly stated that they understood their rights.
Platt, 81 P.3d at 1066.
C. Analysis
¶ 50 Vernagallo argues that the trial court erroneously found that
he knowingly waived his Miranda rights because under the Platt
factors, he appeared disassociated from the circumstances and did
not understand the severity of the situation. Vernagallo points to
the fact that he never placed his shirt back on and appeared to be
sweating — presumably manifesting some degree of anxiety while at
22 the same time his affect was calm. Vernagallo also amplifies the
subsequent evaluation that found him incompetent, based in part
on the fact that at the time of his competency examination he did
not appear to understand the risks of self-incrimination if he made
statements.
¶ 51 The People respond that under the totality of the
circumstances, Vernagallo was engaged with law enforcement,
responded appropriately to their questions, did not appear
emotionally pressed or erratic, and affirmatively stated that he
understood and waived his Miranda rights and was willing to speak
to law enforcement.
¶ 52 Having independently reviewed the bodycam footage of
Vernagallo’s advisement, waiver, and subsequent interactions with
the police, we conclude that the trial court did not err by finding
that Vernagallo’s waiver was knowing, voluntary, and intelligent.
Although he did not choose to wear his shirt, we do not view that as
indicative of a mental condition or disassociation. Vernagallo was
sitting handcuffed in the back of the police cruiser on what
appeared to be a warm August day. Thus, deciding not to put his
shirt back on was not necessarily reflective of a mental condition.
23 ¶ 53 But more importantly, Vernagallo listened to the Miranda
advisement, responded “sir, yes sir” when asked if he understood
his rights, and said “sure” when asked whether he wished to speak
with law enforcement. Thereafter, he responded appropriately in
terms of substance, tone, and demeanor when responding to the
officer’s questions. During this relatively short exchange (less than
three minutes), Vernagallo never appeared disoriented, emotionally
flat, or unable to understand the officer’s questions. He even
apologized for “playing a joke [on his] sister” and for having the
police called out for the incident.
¶ 54 True, as Vernagallo argues, he was subsequently found
incompetent after two different competency evaluations. While
relevant, the competency evaluations were made at a later date and
were based on a different set of criteria. Thus, the subsequent
incompetency findings do not control the question of whether
Vernagallo knowingly and intelligently waived his Miranda rights.
And most importantly, we have reviewed the recording of
Vernagallo’s Miranda advisement and waiver, and it confirms that
his waiver was knowing and intelligent.
24 ¶ 55 Given the totality of the circumstances, we conclude that the
trial court did not err by finding that Vernagallo’s waiver of his
Miranda rights was knowing and intelligently made and thereafter
denying his motion to suppress.
IV. Prosecutorial Misconduct
¶ 56 Vernagallo argues that the prosecutor engaged in three
instances of prosecutorial misconduct by (1) misstating the law
during his opening statement; (2) inappropriately analogizing the
incident to reporting a false bomb threat or pulling a fire alarm; and
(3) offering an improper personal opinion as to Vernagallo’s guilt
during closing argument. We address each argument below.
1. Preservation and Standard of Review
¶ 57 We engage in a two-step analysis to review prosecutorial
misconduct claims. People v. Herold, 2024 COA 53, ¶ 67. First, we
consider “whether the prosecutor’s questionable conduct was
improper based on the totality of the circumstances,” and then we
consider “whether such actions warrant reversal.” Wend v. People,
235 P.3d 1089, 1096 (Colo. 2010).
25 ¶ 58 Prosecutors, “while free to strike hard blows, [are] not at
liberty to strike foul ones.” Domingo-Gomez v. People, 125 P.3d
1043, 1048 (Colo. 2005) (citing Wilson v. People, 743 P.2d 415, 418
(Colo. 1987) (quoting Berger v. United States, 295 U.S. 78, 88
(1935)). During closing argument, a prosecutor “may refer to the
strength and significance of the evidence, conflicting evidence, and
reasonable inferences that may be drawn from the evidence.”
People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006). But
prosecutors may not express their personal opinion that a
defendant is guilty. People v. Rhea, 2014 COA 60, ¶ 80. “In
determining the propriety of [such] statements, we consider ‘the
language used, the context in which the statement was made, and
any other relevant factors.’” People v. Whitman, 205 P.3d 371, 384
(Colo. App. 2007).
¶ 59 Defense counsel objected to the prosecutor’s bomb scare and
fire alarm analogies during closing argument, and therefore, those
claims are preserved. We review preserved claims of prosecutorial
misconduct for harmless error. People v. Licona-Ortega, 2022 COA
27, ¶ 87. Under harmless error review, we will disregard the error
unless it “substantially influenced the verdict or affected the
26 fairness of the trial proceedings.” Id. (citing Hagos v. People, 2012
CO 63, ¶ 12).
¶ 60 The claims related to the prosecutor’s opening statement
about a joke and the portion of the closing argument related to
personal opinions were not preserved. We review unpreserved
claims for plain error. Hagos, ¶ 14. Plain error is obvious and
substantial. Id. Reversal under those circumstances only occurs
when the error “so undermined the fundamental fairness of the trial
itself so as to cast serious doubt on the reliability of the judgment of
conviction.” Id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo.
2005)).
2. Applicable Law
¶ 61 Menacing occurs when a person “by any threat or physical
action, . . . knowingly places or attempts to place another person in
fear of imminent serious bodily injury.” § 18-3-206, C.R.S. 2025
(Emphasis added). “A person acts ‘knowingly’ . . . with respect to
conduct or to a circumstance . . . when he is aware that his conduct
is of such nature or that such circumstance exists.” § 18-1-501(6),
C.R.S 2025. “A person acts ‘knowingly’ . . . with respect to a result
of his conduct, when he is aware that his conduct is practically
27 certain to cause the result.” Id. Acting knowingly is distinct from a
voluntary act, which is defined — in pertinent part — as “an act
performed consciously as a result of effort or determination . . . .”
§ 18-1-501(9).
1. Opening Statement
¶ 62 Vernagallo contends that reversal is warranted because the
prosecutor misstated the law during his opening statement by
conflating the knowing mens rea element of menacing with a
voluntary act, and because of the misstatement, his right to a fair
trial was compromised.
¶ 63 The People respond that, when the prosecutor’s comment is
read in full context, it appropriately explained the “knowingly”
mental state. Specifically, the People reason that the opening
statement was made in response to the defense’s theory that
Vernagallo did not knowingly menace Bond and Adame because he
was only joking. We agree that contrasting menacing with joking
did not constitute prosecutorial misconduct.
¶ 64 During his opening, the prosecutor stated:
28 A person acts knowingly when he’s aware that his conduct is of such nature or that such circumstance exists. A person acts knowingly with respect to a result of his conduct when he’s aware that his conduct is practically certain to cause the result.
We’re not asking . . . if [this] is this a joke. That’s not the question. What does someone intend to do. You don’t even have to go to what does someone intend to do. You’re just being asked, [did] he know what he was doing[?] It’s not an accident.
...
You don’t even have to get to what he intended. You don’t even get to ask that question. But you’re told what he intended. You’ll hear what he intended was to put them in fear, because he was bored. That’s what we’re here about. He knew what he was doing. He knew exactly what he was doing, and that’s exactly what the evidence will tell you.
He knew that by taking out that gun, . . . pointing it at his sister’s face, pointing it at her boyfriend, pulling the trigger, he knew exactly what he was doing, putting them in fear that that was a real gun and they were about to die. That’s exactly what he was trying to do.
(Emphasis added.)
¶ 65 When viewed in context, the prosecutor’s references to
whether Vernagallo consciously intended to menace Bond and
29 Adame did not misstate the meaning of knowingly or disavow the
prosecution’s obligation to prove the knowing element of menacing.
Rather, the prosecution was simply attempting to rebut the
argument that a defendant may avoid being found guilty of
menacing simply by saying that the act was intended as a joke.
¶ 66 To establish that Vernagallo menaced Bond and Adame, the
prosecution was required to prove that Vernagallo knew that his
conduct was “practically certain” to cause the victims to believe that
they were “in fear of imminent serious bodily injury.” See § 18-3-
206. While a portion of the prosecutor’s statement focused on
whether Vernagallo pulled the gun on them as a joke, the following
paragraphs focused on whether Vernagallo intentionally acted in a
manner that was practically certain to illicit fear, which goes toward
whether Vernagallo’s actions were knowing. See § 18-1-501(6).
¶ 67 The prosecutor properly urged the jury to consider whether, by
pointing the revolver at his “sister’s face, pointing it at her
boyfriend, pulling the trigger, he knew exactly what he was doing,
putting them in fear that that was a real gun and they were about
to die.” The argument does not constitute misconduct
30 2. Bomb Scare and Fire Alarm Analogies
¶ 68 Vernagallo next contends that the prosecution engaged in
misconduct by analogizing the incident to calling in a bomb scare or
pulling a fire alarm in a public space. We disagree.
During closing argument, the prosecutor said:
[Prosecutor]: Remember, it’s not a joke, it’s a crime. You don’t get to say, you know what, I think it would be funny to call 911 and call in a bomb scare. But I perceive that law enforcement’s just going to have a good old laugh about this. They’re going to chuckle about it. No. That’s a crime. You may perceive it to be a joke, but that’s a crime. I think it would be funny.
[Defense Counsel]: Your Honor, I object. These are different statutes with different mental states.
[Prosecutor responds and trial court overrules the objection.]
[Prosecutor]: You think it’s funny to say I’m going to pull the fire alarm in a theater; be a big joke. I’m going to pull a fire alarm at school because I want to get out of a test. It’s a crime. It’s not a joke. Just like you can say I think it would be funny to scare somebody by pointing what looks like a real gun in their face. Crime, not a joke. The statute doesn’t say what does [Vernagallo] perceive, the statute says is he aware that his conduct is practically certain to cause the result.
31 ¶ 69 Vernagallo contends that comparing the incident to pulling a
fire alarm or calling in a false bomb threat was reversible error
because the public nature of both analogies is not comparable and
had the potential to improperly appeal to the jury’s sympathy. The
People disagree, noting that the analogies properly focused on the
actor’s intentional conduct, which goes towards whether Vernagallo
acted knowingly.
¶ 70 Vernagallo stated that he was only joking and was not trying
to upset Bond or Adame. Vernagallo also defended the charges on
the theory that his intention was to play a prank, so the
prosecution properly explained how, regardless of whether
Vernagallo intended to play a joke, the jury’s focus should be on
whether in doing so he knowingly placed Bond and Adame “in fear
of imminent serious bodily injury.” § 18-3-206.
¶ 71 Furthermore, we disagree with the assertion that Vernagallo’s
actions were limited to Bond and Adame. He got into his car and
followed them down the street, and the neighbor also believed that
he was armed with a weapon. That behavior occurred in public and
had the potential to scare others.
32 ¶ 72 Thus, we reject Vernagallo’s contention that the prosecutor
engaged in misconduct by analogizing the incident to pulling a fire
alarm or calling in a bomb threat.
3. Opinion Argument
¶ 73 Vernagallo next contends that the prosecution improperly
expressed a personal opinion about his guilt during closing
argument.
¶ 74 During the initial closing, the prosecutor stated, without
objection, the following:
Each one of these charges has been proven beyond a reasonable doubt. It was the defendant. It was here in Douglas County, on August 11th of 2021. He knew exactly what he was doing. And not only did he know what he was doing, that’s what he intended to do. That was his goal, was to put [the victims] in fear of imminent serious bodily injury. And he used this replica gun to do it. He’s guilty of both of those charges.
During rebuttal the prosecutor also stated, without objection,
There’s only one thing that you’re trying to do when you point this at someone’s head. There’s only one thing you’re trying to do when you’re holding that gun out of a car as two people are running for their lives. You’re menacing [Bond] and you’re menacing [Adame]. The defendant is guilty on both of those counts.
33 ¶ 75 Vernagallo argues that these statements reflected the
prosecutor’s personal opinion that Vernagallo was guilty. We
disagree.
¶ 76 “[P]rosecutorial remarks that evidence personal opinion,
personal knowledge, or inflame the passions of the jury are
improper.” Domingo-Gomez, 125 P.3d at 1050. To determine
whether a prosecutor’s remarks are improper, the court must look
at the language used in context of the entire statement. Sellers,
¶ 25. Here, the comments were not preceded by statements that
indicated that they were based on the prosecutor’s beliefs such as “I
believe” or any type of similar statement that would lead the jury to
believe that the statements are tied to the prosecutor’s personal
beliefs or personal knowledge about the situation. The statements
related to Vernagallo’s guilt were based on the evidence and the jury
instructions. People v. Villa, 240 P.3d 343, 358 (Colo. App. 2009)
(explaining that asking a jury to find a defendant guilty is simply
asking the jury to make a reasonable inference about the evidence).
In context, the argument did not cross over into expressing a
personal belief. Therefore, we discern no error, much less plain
34 error, associated with the trial court’s decision not to unilaterally
address this argument.
V. Cumulative Error
¶ 77 Finally, Vernagallo contends that the cumulative impact of the
asserted errors requires reversal. “The doctrine of cumulative error
is based on the notion that multiple errors, in isolation, may be
viewed as harmless, but the synergistic effect of the multiple errors
may be so prejudicial that they deprive a defendant of a fair trial.”
People v. Serna-Lopez, 2023 COA 21, ¶ 47. “For reversal to occur
based on cumulative error, a reviewing court must identify multiple
errors that collectively prejudice the substantial rights of the
defendant, even if any single error does not.” Howard-Walker v.
People, 2019 CO 69, ¶ 25. Because we discern no error, much less
multiple errors, Vernagallo’s cumulative error claim necessarily
fails.
VI. Disposition
¶ 78 The judgment is affirmed.
JUDGE BROWN and JUDGE BERGER concur.