People v. Terrence Kenneth Eugene

• Court: Colorado Court of Appeals
• Decided: September 1, 2022
• Docket: 19CA2267
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY September 1, 2022

2022COA99

No. 19CA2267, People v. Eugene — Constitutional Law — Fifth Amendment; Criminal Law — Custodial Interrogation — Miranda

A division of the court of appeals considers whether the trial

court violated the defendant’s Fifth Amendment rights by admitting

his statements made during an interrogation that were not

preceded by a Miranda warning. The majority concludes that the

defendant was in custody for the last part of the interrogation based

on the totality of the circumstances. Because admitting these

custodial statements violated the defendant’s Fifth Amendment

rights and were not harmless beyond a reasonable doubt, the

majority reverses.

The dissent disagrees, concluding the defendant was never in

custody during the interrogation. The dissent therefore concludes that the trial court properly admitted the defendant’s statements

made during the interrogation and would affirm. COLORADO COURT OF APPEALS 2022COA99

Court of Appeals No. 19CA2267 Arapahoe County District Court No. 18CR1224 Honorable Ben L. Leutwyler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Terrence Kenneth Eugene,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE PAWAR Kuhn, J., concurs Bernard*, J., dissents

Announced September 1, 2022

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine C. Steefel, 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. 2021. ¶1 Defendant, Terrence Kenneth Eugene, appeals the judgment of

conviction entered on jury verdicts finding him guilty of second and

third degree assault arising out of a road rage incident. We reverse

his convictions and remand for retrial because we conclude that

admitting a portion of his interrogation by police violated his Fifth

Amendment rights.

I. Background

¶2 The undisputed facts at trial established that Eugene was

driving with his wife and got into a road rage incident with two men

in another vehicle. Eventually, all four individuals got out of their

vehicles and Eugene had a physical altercation with the other

driver. There was conflicting evidence about who initiated the fight.

Both men sustained injuries, though the other driver’s injuries were

more severe, including cuts to his face and back. When the fight

ended, Eugene and his wife got back into their car and left. The two

men from the other vehicle remained, called 911, and relayed

Eugene’s license plate number to the authorities.

¶3 Two days later, two police officers arrived at Eugene’s

apartment and knocked on the door. They asked Eugene if he

would step outside and talk to them, and Eugene agreed. What

1 followed was a twenty-seven-minute interrogation that was

captured on the body-worn camera of Officer Christopher Thivierge,

the interrogating officer. The officers never advised Eugene of his

Fifth Amendment rights in accordance with Miranda v. Arizona, 384

U.S. 436 (1966). During the interrogation, Officer Thivierge

separated Eugene and his wife to interrogate each alone, suggested

falsely that he had camera footage of the fight, and denied Eugene’s

request to go back inside and use the bathroom.

¶4 Before trial, Eugene moved to suppress the video of the

interrogation, arguing that he was in custody for purposes of

Miranda and the lack of a Miranda advisement rendered his

statements during the interrogation inadmissible. The trial court

held a suppression hearing and ruled that Eugene was never in

custody for Miranda purposes. The entirety of Eugene’s interaction

with the interrogating officer was subsequently admitted at trial

(save Eugene’s references to being on probation, which were

redacted and are irrelevant to this appeal).

¶5 The jury found Eugene guilty of second degree assault

(reckless) and third degree assault (knowing). The trial court

sentenced him to eight years in prison.

2 ¶6 On appeal, Eugene argues that the trial court erred by failing

to suppress the statements he made during the interrogation. He

also argues that the court erred by refusing to give several self-

defense instructions, allowing the prosecutor to engage in improper

argument, admitting a medical expert’s testimony, and failing to

merge his convictions. We agree with Eugene that the trial court

erred by failing to suppress some of his statements from the

interrogation. We further conclude that this error requires reversal

and therefore need not address his remaining arguments.

II. The Trial Court Should Have Suppressed Some of Eugene’s Statements from the Interrogation

¶7 Whether an interrogation was custodial, thus requiring a

preceding Miranda advisement, presents a mixed question of fact

and law. See People v. Sampson, 2017 CO 100, ¶ 16. We defer to

the trial court’s factual findings if they are supported by the record.

Id. But we review the court’s custody determination de novo. Id.

¶8 At the suppression hearing, the only evidence was Officer

Thivierge’s body-worn camera footage and brief testimony from the

second officer, which aligned with the footage. The trial court ruled

that Eugene was not in custody and denied the motion to suppress.

3 In so doing, the court found that the officers maintained a distance

of four to five feet from Eugene, Eugene had a cigarette during the

conversation, no weapons were drawn, and although Officer

Thivierge used “assertive mannerisms or language,” there was no

detectable yelling, threatening, or coercion.

¶9 At the hearing, there was no conflicting evidence, nor was the

trial court required to make any credibility determinations. We

therefore base our analysis on our own review of the body-worn

camera footage, mindful that we are in just as good a position as

the trial court to determine whether, based on that footage, Eugene

was in custody. See id. (reviewing court may consider undisputed

facts evident in the record).

A. Governing Law on Custody for Miranda Purposes

¶ 10 Before being subjected to custodial interrogation by law

enforcement, a suspect must be advised of his Fifth Amendment

rights, including the right to remain silent to avoid self-

incrimination. Miranda, 384 U.S. at 444. A suspect’s statements

during custodial interrogation that were not preceded by a Miranda

advisement are not admissible in the prosecution’s case-in-chief

(unless the suspect voluntarily, knowingly, and intelligently waives

4 his rights, an issue not relevant to this appeal). See Sanchez v.

People, 2014 CO 56, ¶ 11.

¶ 11 The prosecution concedes, and we agree, that the entire

interaction was an interrogation. The question therefore becomes

whether all or part of that interrogation was custodial.

¶ 12 To answer that question, we apply an objective test. We ask

whether a reasonable person in Eugene’s position would have

believed that his freedom of action had been curtailed to a degree

associated with a formal arrest. Id. at ¶ 18. Our supreme court

has made clear that we are to holistically analyze the totality of the

circumstances in each particular case. Id. No single fact or factor

is determinative. See People v. Matheny, 46 P.3d 453, 466 (Colo.

2002). That said, our supreme court has identified a nonexhaustive

list of factors that courts should consider. Id. They are

(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer’s tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer’s response to any questions asked by the defendant; (8) whether directions were given to the defendant

5 during the interrogation; and (9) the defendant’s verbal or nonverbal response to such directions.

Id. at 465-66 (quoting People v. Trujillo, 938 P.2d 117, 124 (Colo.

1997)).

B. The Last Part of Eugene’s Interrogation was Custodial

¶ 13 With the above law to guide us, we now review de novo

whether the totality of the circumstances rendered Eugene’s

interrogation custodial at any point. We conclude that although the

interrogation was not custodial at the beginning, it became

custodial toward the end.

¶ 14 The interrogation began with two officers knocking on the door

of Eugene’s apartment in the middle of the day. Eugene came to

the door, Officer Thivierge asked if he wanted to come talk outside,

and Eugene said “sure.” Eugene’s wife followed Eugene and the

officers outside the building, and they began to talk in front of the

building’s door.

¶ 15 The interrogation unfolded in three distinct phases: first,

Officer Thivierge spoke to Eugene and his wife, and then Eugene

alone, outside; second, Officer Thivierge went inside and spoke to

Eugene’s wife while Eugene remained outside accompanied by

6 another officer; and third, Officer Thivierge spoke to Eugene outside

again with other officers present.

¶ 16 The entire interaction lasted over twenty-seven minutes.

Eugene was never physically restrained. Nevertheless, based on the

totality of the circumstances, we conclude that at the beginning of

the third phase of the interrogation, a reasonable person in

Eugene’s position would have believed that his freedom of action

was curtailed to a degree associated with a formal arrest.

¶ 17 Officer Thivierge’s tone throughout the interrogation was

accusatory and confrontational. He raised his voice on more than

one occasion, though he did not yell at any point. At the beginning,

Officer Thivierge asked Eugene and his wife whether they had been

in a road rage incident two days earlier. Eugene’s wife started to

answer, but Officer Thivierge cut her off, extended his hand

outward gesturing her to stop, and talked over her, saying “stop”

repeatedly and “before you start making up stories . . . how do you

think we found you and [Eugene]?” Minutes later, Officer Thivierge

asked Eugene’s wife to go inside so he could speak to her and

Eugene separately. For the remainder of this first phase of the

7 interrogation, the second officer stood between Eugene and the door

to the apartment building, keeping his hand on the door handle.

¶ 18 After Eugene’s wife went inside, Eugene recounted his version

of the fight. Officer Thivierge told him, “I don’t believe you.” Officer

Thivierge also falsely and repeatedly suggested that there was video

footage of the fight, saying “[W]hat if I were to tell you that there

was a camera that caught the incident and in that incident,

somebody had a knife and cut the driver of that car enough to

cause serious bodily injury to his body, what if I were to tell you

that?” Officer Thivierge later asked, “[W]hat if that camera caught

you doing it, what would you say to that?” And then, “[W]hat if I

also told you that you were driving that car because cameras

showed you getting in the driver’s seat of that car and driving

away?” Eugene maintained that he did not have a weapon, the

other driver swung first, and he did not punch the other driver.

¶ 19 At the end of the first phase, Officer Thivierge told Eugene he

was going inside to speak to his wife. Eugene asked to go inside

and use the bathroom. Officer Thivierge denied that request, saying

“[I]n a second, I’m just gonna go talk to her real quick.” As a result,

8 Eugene stayed outside with the second officer for fourteen minutes

while Officer Thivierge went inside and spoke to Eugene’s wife.

¶ 20 By the time Officer Thivierge returned outside, a third officer

had arrived and was standing with Eugene and the second officer.

The third phase of the interrogation began, with the second officer

again standing between Eugene and the door of his apartment

building. Officer Thivierge listed some of his perceived

inconsistencies in Eugene’s version of the incident and asked,

“[W]hy do you keep lying?” Eventually, Eugene admitted to having

punched the other driver but insisted that the other driver swung

first.

¶ 21 We agree with the trial court that during the first phase of the

interrogation, Eugene was not in custody for Miranda purposes.

But when Officer Thivierge returned outside and the third phase

began, the interrogation became custodial. See People v. Horn, 790

P.2d 816, 818 (Colo. 1990) (initial voluntariness of a person’s

presence does not preclude the determination that his presence is

thereafter custodial in nature). At that point, Eugene had been

outside with officers for over twenty-two minutes. See People v.

Cleburn, 782 P.2d 784, 786 (Colo. 1989) (concluding the defendant

9 was in custody relying, in part, on a finding that the twenty-to-

thirty-minute interrogation was “relatively long”). The officers had

directed — and then maintained — Eugene’s separation from his

wife. Cf. Effland v. People, 240 P.3d 868, 875 (Colo. 2010)

(excluding daughter from interrogation included among several

factors in favor of finding custodial interrogation). While calm,

Officer Thivierge had spoken to him accusatorily and

confrontationally throughout. See People v. Minjarez, 81 P.3d 348,

357 (Colo. 2003) (interrogation was custodial where the defendant

was subject to repeated accusations and the mood in the room was

tense and confrontational). Officer Thivierge had repeatedly

misrepresented that video footage of the incident existed and had

told Eugene, “I don’t believe you.” Cf. Matheny, 46 P.3d at 467

(interrogation was not custodial because officers “were completely

honest with Defendant”); Minjarez, 81 P.3d at 357 (interrogation

was custodial where questions were coercive and intended to force

agreement from the defendant). The second officer had been

positioned between Eugene and the door to the building with his

hand on the door, and a third officer had arrived. See People v.

Alemayehu, 2021 COA 69, ¶ 78 (considering number of officers

10 present as relevant to custody determination). And Officer Thivierge

had denied Eugene’s request to go inside his own home and use the

bathroom. Cf. People v. Davis, 2019 CO 84, ¶ 31 (no custody in

part because the defendant was permitted to return to his bedroom

to retrieve his glasses and phone). At this point, a reasonable

person in Eugene’s position would feel that his freedom of action

¶ 22 We therefore conclude that, based on the totality of the

circumstances, Eugene was in custody for Miranda purposes during

the third phase of the interrogation.

¶ 23 The dissent supports its contrary conclusion by identifying

numerous individual facts that were present in cases where the

suspect was in custody and noting the absence of those facts here

(for example, the use of physical restraints, the drawing of a

weapon, and a detention lasting an hour or more). It also identifies

things the officers could have done but did not (e.g., they did not

show up at night, they did not conduct a search beyond a pat-down

of Eugene, and they did not crowd or surround Eugene). While not

inappropriate, we find this analysis unpersuasive. The legal

standard we must apply does not focus on the presence or absence

11 of individual factors standing alone. Instead, the legal standard

requires us to focus on the combined effect of the inherently unique

facts of a given case.

¶ 24 The facts here were that at the beginning of the third phase of

the interrogation, the interaction had already lasted at least twenty-

two minutes;1 Officer Thivierge consistently spoke to Eugene in a

confrontational and accusatory tone throughout the interrogation;

Officer Thivierge had directed and maintained Eugene’s separation

from his wife; Officer Thivierge had denied Eugene’s request to go

inside his apartment to use the bathroom; Officer Thivierge had lied

about the existence of video footage and asked Eugene why he was

lying; and a third officer had arrived. We conclude that Eugene was

in custody during the third phase of the interrogation based on this

1 The dissent states that Eugene was only interrogated for a total of “about eleven minutes and forty-five seconds.” Infra ¶ 61. Technically, this is true. Officer Thivierge actively interrogated Eugene for a total of eleven minutes and forty-five seconds. But we cannot ignore the fact that in between the first and third phases of the interrogation, after Officer Thivierge denied Eugene’s request to go inside his own home and use the bathroom, Eugene was made to stand outside with the non-interrogating officer (and eventually a third officer) for over fourteen minutes. This additional fourteen minutes of detention is certainly part of the totality of the circumstances we must consider when making a custody determination. 12 inherently unique combination of facts and circumstances. See

People v. Marko, 2015 COA 139, ¶ 56 (custody determination for

purposes of Miranda must be made on a case by case basis).

¶ 25 Officers failed to give Eugene a Miranda advisement before the

third phase. The trial court therefore violated Eugene’s Fifth

Amendment rights by failing to suppress Eugene’s statements from

this third phase.2 Based on this conclusion, we now turn to

whether this constitutional error requires reversal.

C. Reversal is Required

¶ 26 A constitutional error requires reversal unless it was harmless

beyond a reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11.

Under this standard, we must reverse if there is any reasonable

possibility that the error might have contributed to the conviction.

Id. Once constitutional error has been found, the prosecution has

the burden to prove that the error does not require reversal under

this standard. Id.

2 We emphasize that officers are free to use confrontational and coercive techniques that amount to custodial interrogation — as long as they advise the suspect of his Fifth Amendment rights before doing so. 13 ¶ 27 Having determined that there was constitutional error, we

conclude that the prosecution has failed to carry its burden to show

that reversal is unnecessary. The prosecution’s entire argument on

this issue in the briefs is a single sentence: “Nonetheless, the

admission of the statements would be harmless beyond a

reasonable doubt in light of the overwhelming evidence

demonstrating that the Defendant was the initial aggressor.” The

prosecution does not explain what constitutes overwhelming

evidence in general, nor does it identify the specific evidence that is

supposedly overwhelming here. Although the prosecution followed

its single sentence of argument with a record citation, more is

required to develop an argument to the point that we will address it

as sufficiently raised on appeal, let alone to the point that it

satisfies the prosecution’s heavy burden to disprove the necessity of

reversal. See People v. Leverton, 2017 COA 34, ¶ 65 (rejecting a

constitutional argument because “it was not sufficiently developed

and we do not address skeletal arguments”); People v. Mendenhall,

2015 COA 107M, ¶ 49 (describing the prosecution’s burden to prove

harmlessness beyond a reasonable doubt as “heavy”); People v.

Simpson, 93 P.3d 551, 555 (Colo. App. 2003) (declining to consider

14 “a bald legal proposition presented without argument or

development”).

III. Conclusion

¶ 28 The judgment of conviction is reversed, and the case is

remanded for retrial in accordance with this opinion.

JUDGE KUHN concurs.

JUDGE BERNARD dissents.

15 JUDGE BERNARD, dissenting.

¶ 29 The majority concludes that defendant was in custody at the

end of the encounter in this case when he made incriminating

statements to the investigating officer. The majority continues that

the officer was, therefore, obligated to inform defendant of his

Miranda rights before questioning him further. As a result, the

majority finishes up, those statements should not have been

admitted at defendant’s trial, and, because they were, his conviction

must be reversed. I disagree because I conclude that defendant was

not in custody at any time during the interrogation, so the officer

was not required to inform him of his Miranda rights. I therefore

respectfully dissent.

I. Defendant Was Not in Custody When the Investigating Officer Interrogated Him

A. The Interrogation

¶ 30 The video of the interrogation came from a body camera that

the investigating officer was wearing. It is about twenty-seven

minutes long. Its first minute and forty seconds consist of the

investigating officer, who was accompanied by a second officer,

knocking on the door of defendant’s apartment and then waiting for

16 defendant’s wife to bring defendant to the door. (The second officer

said very little during the entire video.)

¶ 31 In a conversation in the hallway outside the apartment that

lasted only a few seconds, the investigating officer asked defendant

to go outside to talk. Defendant agreed. The tone of this short

conversation was calm and friendly.

¶ 32 The two officers and defendant went outside into the daylight,

and they stood by a door to the apartment building. The

investigating officer asked defendant whether he was carrying any

weapons. Defendant said “no,” and the officer told defendant that

he was going to “pat [defendant] down real quick.” He did so, and

did not find any weapons.

¶ 33 As the investigating officer began to ask defendant questions,

defendant’s wife came outside. The officer wanted to know if either

of them had driven their car on the day of the road rage incident

that led to the charges in this case. When the officer asked

defendant’s wife whether she and defendant had been involved in

that incident, she said “no.” The officer immediately raised his

voice some — he was not yelling — and interrupted defendant’s

17 wife, assertively telling her, “Stop. Before you go making up stories,

how do you think we found you and [defendant]?”

¶ 34 Defendant’s wife then admitted that they had been involved in

the incident, although she portrayed the victim as the aggressor.

¶ 35 The officer then asked defendant some questions while

defendant smoked a cigarette. The officer’s tone during this

questioning was calm and matter of fact. After about three and a

half minutes, the officer asked defendant’s wife to “do him a favor,”

adding that he wanted to talk with defendant alone and that he

would speak with her separately. She went back inside.

¶ 36 The investigating officer made more inquiries of defendant,

again in a calm and matter-of-fact tone of voice. About a minute

into them, the officer asked, “What if I were to tell you that there

was a camera that caught the incident, and, in that incident,

somebody had a knife and cut the driver of that car enough to

cause serious bodily injury to his body? What if I were to tell you

that?” (The record does not contain any indication that there was

such a camera. It is therefore reasonable to suppose that the officer

made this up.) Defendant denied having a knife or cutting anyone.

At one point, the officer told defendant that he did not believe him

18 when defendant said that “nothing else happened.” Defendant

denied doing anything more than pushing the victim.

¶ 37 Defendant asked the officer if he could “run in” and use the

bathroom. The officer replied, “In a second. I’m just going to go

talk to [defendant’s wife] really quick, okay?”

¶ 38 This part of the interrogation — between when defendant’s

wife left and when the investigating officer went inside — lasted

about four and three-quarter minutes. So, up to this point, the

investigating officer had questioned defendant outside the

apartment for about eight minutes and fifteen seconds.

¶ 39 The investigating officer then went inside for about thirteen

minutes and forty-five seconds, and he spoke with defendant’s wife

in the hallway outside defendant’s apartment for most of this time.

During this interrogation, a third officer showed up. The

investigating officer directed the third officer to remain outside with

defendant and the second officer. (Like the second officer, the third

officer said little that was captured by the investigating officer’s

body camera.)

¶ 40 Although defendant’s wife denied that defendant had been

armed with a knife during the incident or that he had cut the victim

19 with it, she admitted for the first time that defendant had punched

the victim.

¶ 41 While the investigating officer questioned defendant’s wife

inside the apartment building, defendant was outside of the

apartment with the other two officers. The building’s door was

closed, and the video from the investigating officer’s body camera

does not show what anyone was doing outside, and it did not

capture what anyone outside may have said.

¶ 42 When the investigating officer went back outside, he spoke to

defendant in a matter-of-fact, calm way. Defendant was leaning

against a car, talking with the other officers. The investigating

officer asked defendant, “Do you see how this looks right now?” and

“Why do you keep lying?” He confronted defendant with the

inconsistencies in defendant’s story, explaining that defendant’s

wife said that defendant had punched the victim. Defendant then

admitted, for the first time, that he had punched the victim. But he

continued to deny that he had been armed with, or had used, a

knife. The officer then told defendant that “[i]t looks so bad right

now” because the victim had stayed at the scene and called the

20 police while defendant and his wife had left. At that point, the

officer again raised his voice, but he was not yelling.

¶ 43 The officer told defendant that he was going to call the

detective who was handling the case, and he began to walk to his

car. The video ended.

¶ 44 This last part of the interrogation lasted about three minutes.

The investigating officer’s entire interrogation of defendant lasted

approximately eleven and one-quarter minutes.

¶ 45 There is no indication in the record, including in the video

from the investigating officer’s body camera, that any of the officers

told defendant that he could not leave or that defendant expressed

any desire to leave. The officers did not yell at him or at his wife;

they did not call him or his wife any names; and they did not

threaten him or his wife. They did not arrest defendant after the

interrogation. That came later.

B. The Law

¶ 46 “Miranda sought to address the problem of how the Fifth

Amendment privilege against compelled self-incrimination could be

protected from ‘the coercive pressures that can be brought to bear

upon a suspect in the context of custodial interrogation.’” People v.

21 Davis, 2019 CO 84, ¶ 16 (quoting Berkemer v. McCarty, 468 U.S.

420, 428 (1984)). “Given the Fifth Amendment concerns that

animated the decision, Miranda warnings are required only ‘when a

suspect is subject to both custody and interrogation.’” Id. (quoting

Effland v. People, 240 P.3d 868, 873 (Colo. 2010)). There is no

question in this case that the investigating officer interrogated

defendant; the central question is whether defendant was in

custody for purposes of Miranda during any part of the

interrogation.

¶ 47 “Custody for [the purposes of Miranda v. Arizona, 384 U.S.

436, 444 (1966),] under the Fifth Amendment is determined under

a different analysis from that applied to determine whether there

has been a seizure under the Fourth Amendment.” People v.

Stephenson, 159 P.3d 617, 620 (Colo. 2007). “A seizure results

under the Fourth Amendment where the police conduct in question

‘would have communicated to a reasonable person that the person

was not free to decline the officers’ requests or otherwise terminate

the encounter.’” Id. (quoting People v. Jackson, 39 P.3d 1174, 1182

(Colo. 2002)).

22 ¶ 48 Under the Fifth Amendment, “the safeguards prescribed by

Miranda become applicable as soon as a suspect’s freedom of action

is curtailed to ‘a degree associated with formal arrest.’” Berkemer,

468 U.S. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983)).

Under Berkemer, the question [of whether a defendant is in custody for the purposes of Miranda] is not whether a reasonable person would believe he was not free to leave, but rather whether such a person would believe he was in police custody of the degree associated with a formal arrest.

People v. Polander, 41 P.3d 698, 705 (Colo. 2001).

¶ 49 The distinction between custody and arrest, on the one hand,

and a brief investigatory detention, on the other hand, is significant.

“Mere detention does not deprive a person of his freedom to the

degree associated with a formal arrest.” Davis, ¶ 20. “[A]lthough

relevant to the analysis, detention alone is not dispositive of a

custody determination.” Id. While “an investigatory detention

constitutes a ‘seizure’ for purposes of the Fourth Amendment, such

detention does not necessarily mean that the suspect is ‘in custody’

for purposes of Miranda.” Id. “In the Miranda context, ‘“custody” is

a term of art that specifies circumstances that are thought generally

23 to present a serious danger of coercion.’” Id. at ¶ 17 (quoting

Howes v. Fields, 565 U.S. 499, 508-09 (2012)).

¶ 50 “This is not to say that Miranda can never be implicated

during a valid investigatory detention. A court must examine the

facts and circumstances of the encounter to determine whether

Miranda applies.” Id. at ¶ 21. “If a person detained pursuant to an

investigatory stop ‘thereafter is subjected to treatment that renders

him “in custody” for practical purposes, he will be entitled to the

full panoply of protections prescribed by [Miranda].’” Id. (quoting

Berkemer, 468 U.S. at 440).

¶ 51 What conduct during an investigatory stop triggers Miranda’s

protections? For example, “Miranda rights are . . . implicated when

police detain a suspect using a degree of force more traditionally

associated with concepts of ‘custody’ and ‘arrest’ than with a brief

investigatory detention.” Polander, 41 P.3d at 705.

¶ 52 What is the degree of force traditionally associated with

concepts of custody and arrest? If, for example, a “police officer

uses physical restraint on the suspect, or draws a gun[, the

encounter] is more likely to be deemed custodial.” People v.

Breidenbach, 875 P.2d 879, 886 (Colo. 1994)(quoting People v.

24 Herdan, 116 Cal. Rptr. 641, 645 n.11 (Ct. App. 1974)). Physical

restraint includes handcuffing, holding a suspect by the arm, or

placing the suspect in a police car. People v. Holt, 233 P.3d 1194,

1197-98 (Colo. 2010). “[T]he lack of physical restraint suggests . . .

that [a defendant] [is] not in custody.” People v. Cowart, 244 P.3d

1199, 1204 (Colo. 2010). And an officer’s statement that a suspect

will not be released after an interrogation is also indicative of an

arrest. People v. Figueroa-Ortega, 2012 CO 51, ¶ 8.

¶ 53 To decide whether the police have placed a person in custody

for the purposes of Miranda, a court considers the totality of the

circumstances. Cowart, 244 P.3d at 1203. This is an objective test.

Id. As part of that consideration, Cowart, among other decisions

from our supreme court, including the one cited by the majority,

directs trial courts to consider a series of nine nonexclusive factors.

Id. None of these factors alone is determinative. People v. Barraza,

2013 CO 20, ¶ 17. The majority has listed these factors in

paragraph 12 of its opinion.

C. Analysis

¶ 54 I think that a reasonable argument could be made that

defendant was not detained at all and that the encounter with the

25 officers was consensual. For example, there is no indication that

any officer told defendant that he had to talk with them, that he

had to go outside with them, that he had to remain with them

outside, that he could not just walk away from the interrogation, or

that he was under arrest. But, for the purposes of this dissent, I

will assume that defendant was not free to leave during the police

interrogation and that he was, therefore, the subject of an

investigatory detention.

¶ 55 I base this assumption on the following facts from the

interrogation: (1) the investigating officer asked defendant to go

outside; (2) the officer patted defendant down once they got outside;

(3) after speaking with defendant and his wife together, the officer

asked defendant’s wife to leave so that the officer could ask

defendant questions; (4) the officer told defendant to wait a “second”

to go to the bathroom because the officer wanted to interview

defendant’s wife; (5) the officer raised his voice, although he did not

yell, when speaking with defendant’s wife in defendant’s presence

and when talking with defendant near the end of the interrogation;

(6) the officer told defendant that he did not believe defendant, and

he confronted defendant with new information that he had learned

26 from defendant’s wife; (7) the officer told defendant that a camera

had recorded the road rage incident, which apparently was not true;

and, (8) for almost the entire encounter, there were two police

officers with defendant, and, at the end, three.

¶ 56 Even making this assumption, I nonetheless conclude, for the

following reasons, that, based on the totality of the circumstances,

the officers did not do anything to escalate the investigatory

detention into the level of custody that would require the

investigating officer to read defendant his Miranda rights before

questioning him. See Davis, ¶¶ 20-21.

¶ 57 First, the investigatory detention that I assume occurred did

not automatically equal custody for Miranda’s purposes because

such a “mere detention” did not deprive defendant of his freedom to

the degree associated with a formal arrest. See id. at ¶ 20; see also

People v. Begay, 2014 CO 41, ¶ 20 (“Is . . . a suspect [detained

during an investigatory stop] seized under the Fourth Amendment?

Typically, yes. Does that mean he is in custody under the Fifth

Amendment? Not necessarily — investigatory detention of this sort

may occur without the degree of restraint associated with a formal

arrest.”). And defendant’s putative detention would not be

27 “dispositive of a custody determination” for purposes of Miranda.

See Davis, ¶ 20.

¶ 58 Second, the test for custody “is not whether a reasonable

person would believe he was not free to leave.” Polander, 41 P.3d at

705; see also Begay, ¶ 16 (A “trial court errs by applying the ‘free to

leave’ standard in evaluating whether a suspect is in custody under

the Miranda doctrine.”). So, even if defendant reasonably felt that

he was not free to leave, that, by itself, was not enough to establish

that defendant was in custody under Miranda.

¶ 59 Third, defendant’s putative detention was more “typical of an

investigatory stop” than of an arrest. See Begay, ¶ 20; Figueroa-

Ortega, ¶ 8. An investigatory detention is an intermediate “level of

police response or limited seizure, and it may be proper in ‘narrowly

defined circumstances upon less than probable cause.’” People v.

Garcia, 11 P.3d 449, 453 (Colo. 2000)(quoting People v. Archuleta,

980 P.2d 509, 512 (Colo. 1999)). It must be brief, limited in scope,

and narrow in purpose, and, to justify such a detention, the police

“must have an articulable and specific basis in fact to believe that

an individual is committing, has committed, or is about to commit a

crime.” Id. In this case, the detention was brief, its scope was

28 limited to questioning defendant and his wife, and the investigating

officer clearly had an articulable and specific basis to believe that

defendant had been involved in the road rage incident.

¶ 60 There are no rigid time limitations on investigative detentions.

Davis, ¶ 36. “[W]hen determining whether a detention is too long in

duration,” which would turn an investigative detention into an

arrest for Fourth Amendment purposes, “it is appropriate to

examine whether police were diligent in pursuing a means of

investigation likely to resolve their suspicions quickly.” People v.

Lidgren, 739 P.2d 895, 896 (Colo. App. 1987).

¶ 61 In this case, the investigating officer only interrogated

defendant for about eleven minutes and forty-five seconds. And the

entire encounter lasted twenty-five and a half minutes. (Remember

that about the first minute and forty seconds were taken up by

knocking on the door to defendant’s apartment and asking for him.)

This was not an unreasonable time, particularly because the

encounter lasted only long enough for the investigating officer to

question defendant and his wife together and then apart. See id.;

see also United States v. Tehrani, 49 F.3d 54, 61 (2d Cir. 1995)(“We

decline to hold that a thirty minute detention based on reasonable

29 suspicion is, per se, too long.”); Davis, ¶ 36 (a detention that lasted

eighty-five minutes was not too long under the circumstances);

People v. Ortega, 34 P.3d 986, 993 (Colo. 2001)(a detention that

lasted between twenty and thirty minutes was not too long under

the circumstances).

¶ 62 Fourth, the police did not use force “more traditionally

associated with concepts of ‘custody’ and ‘arrest’ than with a brief

investigatory detention.” Polander, 41 P.3d at 705. The officers did

not point their weapons at defendant or at his wife, and they did

not otherwise display them. They did not place defendant in any

restraints, such as handcuffs. They did not grab him by the arm to

direct him, and they did not manhandle him in any way. They did

not question him in the police station behind a locked door or in a

police car. See People v. Pleshakov, 2013 CO 18, ¶ 32 (A suspect

was not in custody for Miranda purposes because, in part, the

police did not “brandish their weapons, use handcuffs, or otherwise

exhibit the type of force generally associated with arrest.”); Cowart,

244 P.3d at 1204; Breidenbach, 875 P.2d at 886. As a result, the

lack of physical restraint suggests that he was not in custody

during the interrogation. See Cowart, 244 P.3d at 1204.

30 ¶ 63 The investigating officer never told defendant that he could not

leave or that he would not be released after the interrogation. See

Figueroa-Ortega, ¶ 8. And, even if I assume that the officer directed

defendant to talk with him outside, instead of defendant voluntarily

agreeing to do so, the officer’s direction does not suggest that

defendant was in custody. See Stephenson, 159 P.3d at 622

(“[R]equiring a defendant to exit her vehicle was not custody for

purposes of Miranda.”).

¶ 64 Although I think that the absence of these things from this

case has significant persuasive force, I recognize that their absence

does not automatically mean that defendant was not in custody

when the police questioned him. See Davis, ¶ 21. It is certainly

possible that, even in the absence of these things, a suspect might

reasonably believe that his or her freedom of action has been

curtailed to a degree associated with formal arrest. See id.

¶ 65 Fifth, the investigating officer interrogated defendant outside

his apartment building. “The location of the interaction is

significant.” People v. Cline, 2019 CO 33, ¶ 21 (listing cases in

which police-suspect encounters that occurred outside the

suspect’s home weighed against a determination that the suspect

31 was in custody). This is because “the Miranda warnings were

expressly developed as an added protection against

‘incommunicado interrogation of individuals in a police-dominated

atmosphere.’” Figueroa-Ortega, ¶ 7 (quoting Miranda, 384 U.S. at

445).

¶ 66 “When the interaction occurs at the person’s home or at a

familiar location, it weighs against a finding of custody.” People v.

Garcia, 2017 CO 106, ¶ 21. “[T]he area just outside a familiar

residence can be a neutral location.” Id. The interrogation in this

case therefore did not occur in a “police-dominated setting.” See

Davis, ¶ 29; Begay, ¶ 22 (Because traffic stops and “show-up”

identifications normally occur in public, “the potential that police

will use coercive tactics to compel a confession is diminished.”).

¶ 67 The officers did not show up at night or in the early morning

hours; they came to defendant’s apartment in the daytime. This,

too, weighs against a determination that defendant was in custody

during the interrogation. See Cline, ¶ 22; Pleshakov, ¶ 32 (A

suspect was not in custody for Miranda purposes, in part, when the

encounter occurred in “daylight . . . on a sidewalk, in plain view of

any person who might be passing by.”).

32 ¶ 68 Sixth, beyond the initial pat-down search, the officers did not

search defendant, his wife, or his apartment, and they did not

otherwise discover any incriminating evidence. See People v.

Thomas, 839 P.2d 1174, 1178 (Colo. 1992)(a roadside encounter

after a traffic stop became custodial for the purposes of Miranda

when a search of the suspect’s person turned up incriminating

evidence in the form of a marijuana pipe).

¶ 69 Seventh, the presence of three officers “would not, in and of

itself, lead a reasonable person to believe that he or she had been

subjected to restraint akin to a formal arrest.” People v. Alemayehu,

2021 COA 69, ¶ 78. This conclusion is reinforced by the fact that,

on the body camera recording, there is no indication the officers

crowded or surrounded defendant or backed him up against a wall.

See id. at ¶ 78 n.11; Pleshakov, ¶ 32 (The suspect “was not confined

or encircled by police officers.”).

¶ 70 Eighth, it appears to me that the investigating officer tried to

persuade defendant to admit that he had participated in the road

rage incident and that he had cut the victim with a knife. But

“persuasion is not coercion, and the atmosphere and tone of the

interview . . . did not evince any attempt” by the officer to subjugate

33 defendant to his will. People v. Matheny, 46 P.3d 453, 467 (Colo.

2002). “The extent to which a police officer’s tone of voice and

demeanor can be characterized as confrontational and accusatory”

is more relevant to deciding whether the police have engaged in a

consensual encounter with a suspect or an investigatory stop, as

opposed to deciding whether a suspect was in custody for the

purposes of Miranda. Figueroa-Ortega, ¶ 10. “[M]erely confronting

a suspect with the evidence against him and threatening, no matter

how confidently, to charge him with a crime at some point in the

future does not, by itself,” infringe upon his or her liberty, much

less infringe upon it to the degree “associated with a formal arrest.”

Id. And “[a]ny interview of one suspected of a crime by a police

officer will have coercive aspects to it, simply by virtue of the fact

that the police officer is part of a law enforcement system which

may ultimately cause the suspect to be charged with a crime.”

Oregon v. Mathiason, 429 U.S. 492, 495 (1977). The body camera

footage does not show any officer screaming at defendant, calling

him names, belittling him, or threatening him or his wife.

¶ 71 Ninth, defendant did not appear to be cowed, and he did not

act like his will had been overborne. His responses to the

34 investigating officer’s questions were direct, he did not confess to

cutting the victim, and the footage from the body camera does not

suggest that defendant had succumbed to “any allegedly coercive

police influences.” See People v. Clark, 2020 CO 36, ¶ 34 (quoting

Garcia, ¶ 36). He consistently deflected the officer’s questions, and

he accused the victim of being the initial aggressor. See id.

¶ 72 He responded to the investigating officer’s questions, many of

which were open-ended, in a narrative form rather than in “short-

form responses to directed questions.” See People v. Sampson,

2017 CO 100, ¶ 27. Although he was animated at times, he did not

appear to be distraught. He seemed calm, and he never told the

police that he wanted the interrogation to end. See People v. Travis,

2016 COA 88, ¶ 17, rev’d on other grounds, 2019 CO 15. He did

not tell the officers to leave, he did not say that he would not speak

with them, and he did not ask for an attorney. See People v.

Theander, 2013 CO 15, ¶ 34.

¶ 73 The officer’s misrepresentation that a camera had recorded the

road rage incident was not so compelling or coercive that, upon

hearing it, defendant confessed to cutting the victim with a knife.

“Ploys to mislead a suspect or lull him into a false sense of security

35 that do not rise to the level of compulsion or coercion to speak are

not within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292,

297 (1990); cf. Frazier v. Cupp, 394 U.S. 731, 739 (1969)(police

misrepresentations, although relevant, were not enough to turn an

otherwise voluntary confession into an involuntary one). “[T]rickery

is not automatically coercion. Indeed, the police commonly engage

in such ruses as suggesting to a suspect that a confederate has just

confessed or that police have or will secure physical evidence

against the suspect.” United States v. Byram, 145 F.3d 405, 408

(1st Cir. 1998).

¶ 74 At this point in my analysis, I am reminded that, while

discussing Fourth Amendment issues, Professor Wayne LaFave

once wrote about the importance of providing the police with clear

rules to “regulate . . . their day-to-day activities.” Wayne R. LaFave,

“Case-By-Case Adjudication” Versus “Standardized Procedures”: The

Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 141. While this is a

Fifth Amendment case involving the issue of whether defendant was

in custody for the purposes of Miranda, I think that Professor

LaFave’s admonition is equally pertinent because our Fifth

Amendment jurisprudence regulates the conduct of police officers

36 in the field when questioning suspects. Our guidance should,

therefore, “be expressed in terms that are readily applicable by the

police in the context of the law enforcement activities in which they

are necessarily engaged.” Id. “A highly sophisticated set of rules,

qualified by all sorts of ifs, ands, and buts and requiring the

drawing of subtle nuances” may be impossible for police officers to

apply. Id. Rather, a “single, familiar standard is essential to guide

police officers, who have only limited time and expertise to reflect on

and balance the social and individual interests involved in the

specific circumstances they confront.” Dunaway v. New York, 442

U.S. 200, 213-14 (1979); see People v. Hufnagel, 745 P.2d 242, 246

n.2 (Colo. 1987)(search and seizure case).

¶ 75 The United States Supreme Court has used this approach

when discussing Miranda. For example, in New York v. Quarles,

467 U.S. 649, 658 (1984), the Court “recognize[d] . . . the

importance of . . . workable rule[s].” And, in Yarborough v.

Alvarado, 541 U.S. 652, 668 (2004), the Court noted that “the

custody inquiry states an objective rule designed to give clear

guidance to the police.” Colorado’s supreme court quoted this

language approvingly in Cowart, 244 P.3d at 1204. Indeed,

37 Colorado’s test for deciding whether a suspect was in custody

during a police interrogation is the same as the United States

Supreme Court’s test. See Matheny, 46 P.3d at 467.

¶ 76 This test is the sort of workable, objective rule that can

reasonably guide the police. It avoids the “ifs, ands, and buts

and . . . the drawing of subtle nuances” that Professor LaFave

warned against because (1) it is an objective test, see Cowart, 244

P.3d at 1203; that (2) asks whether a reasonable person would

believe that he or she “was in police custody of the degree

associated with a formal arrest,” Polander, 41 P.3d at 705; and that

(3) focuses on whether the circumstances in question “are thought

generally to present a serious danger of coercion,” Davis, ¶ 17

(emphasis added)(quoting Howes, 565 U.S. at 508-09). So it is

critically important, when employing this multi-factor, totality-of-

the-circumstances test, to evaluate what the police and the suspect

did and said as well as what they did not do and what they did not

say.

¶ 77 Obviously, the custody test will be applied to an enormous

number of factually different scenarios. Change one fact in a

scenario, and the result could well change. And because the test

38 requires us to review the totality of the circumstances, it must be

flexible enough to recognize the potentially vast differences from

case to case.

¶ 78 There are, for example, cases in which it is abundantly clear

that a suspect was in custody when questioned. Everyone would

agree that, if several officers drew their weapons, forced a suspect

facedown on the ground, handcuffed her, transported her to the

police station in a patrol car, and interrogated her in a small,

windowless room while she was still handcuffed, then the suspect

was in custody.

¶ 79 On the other end of the spectrum, there are cases in which it

is equally evident that the suspect was not in custody when

questioned. Everyone would again agree that, if an officer

approached a suspect on the street, politely asked permission to

speak with him, spoke in a conversational tone of voice, never drew

a weapon, never put his hands on the suspect, never gave him any

orders, never limited his freedom of movement, and immediately

respected his request to terminate the encounter, then the suspect

was not in custody.

39 ¶ 80 There are many cases that fall somewhere in between these

two hypotheticals. But, for me, this case is closer to the not-in-

custody end of the spectrum than the in-custody end.

¶ 81 After considering the nonexclusive factors, looking objectively

at the totality of the circumstances, see Cowart, 244 P.3d at 1203,

and recognizing that none of the nonexclusive factors alone is

determinative, see Barraza, ¶ 17, I conclude that a reasonable

person in defendant’s position would not have believed that he or

she was in police custody of the degree associated with formal

arrest, see Polander, 41 P.3d at 705.

¶ 82 When looking at the factors indicating that defendant was not

in custody, I note that the police did not draw their guns or any

other weapons. They did not handcuff him or otherwise restrain

him. Aside from the pat-down search, they did not touch him; they

were never physically aggressive.

¶ 83 The investigating officer interrogated defendant outside his

apartment complex in the daylight, where other people could see

the encounter. The officers did not surround him or stand

unreasonably close to him; they did not back him up against a wall.

40 They did not tell him that he was under arrest, that he was required

to speak with them, or that he could not leave.

¶ 84 The interrogation was mostly matter of fact, and it was not

unreasonably long. The officers did not threaten defendant, yell at

him, or berate him. Defendant did not seem overwhelmed by the

questioning, and, although he admitted punching the victim, he did

not admit that he had cut the victim with a knife. The officers did

not arrest him at the end of the interrogation. And, even if

defendant was not free to leave because he was the subject of an

investigatory detention, he was not restrained to the degree

associated with a formal arrest. See Davis, ¶ 20; Polander, 41 P.3d

at 705.

¶ 85 Turning to the factors that might indicate that defendant was

in custody, the investigating officer was occasionally confrontational

and accusatory when questioning defendant and his wife, twice

raising his voice. It appears from the record that the officer

misrepresented the status of the evidence. The officer first

separated defendant from his wife, then directed defendant to stay

outside while the officer questioned her, and, in doing so, told

defendant that he should wait “a second” before returning to his

41 apartment to use the bathroom. At least two, and, at the end, three

officers were with defendant during the entire encounter.

¶ 86 When considered as a whole, these factors indicate to me, at

the most, that defendant was the subject of an investigatory

detention, not that he was in custody for the purposes of Miranda.

All in all, I think that the factors indicating that defendant was not

in custody are much more persuasive than the factors indicating

that he was in custody, particularly because the latter factors were

not coercive.

¶ 87 I conclude that defendant was not in custody throughout the

entire interrogation and, therefore, that the officer was not required

to advise him of his Miranda rights. This means that I further

conclude that the trial court did not err when it allowed the

prosecution to introduce all the statements that defendant made

during the interrogation into evidence during his trial.

¶ 88 Because I reach these conclusions, I will briefly address the

other four issues that defendant raised in his opening brief.

II. Other Issues

A. Instructions

42 ¶ 89 Defendant contends that the trial court should have read the

jury self-defense instructions that he had proposed: the first

concerned whether defendant had acted reasonably; the second

addressed apparent necessity; and the third explained the concept

of no duty to retreat. He then asserts that one reason why the

court should have given the jury the first two instructions was that

he had faced multiple assailants — the victim and a passenger in

the victim’s car — during the road rage incident. I disagree.

¶ 90 “[W]hether to give a particular instruction lies within the trial

court’s discretion, and [an appellate court] will not disturb the

court’s ruling absent a showing that the court abused its discretion

in rejecting a particular instruction.” People v. Gwinn, 2018 COA

130, ¶ 31. An appellate court reviews the question of whether a

trial court accurately instructed the jury on the law de novo.

Pettigrew v. People, 2022 CO 2, ¶ 32.

¶ 91 I conclude that the trial court did not err when it rejected

defendant’s proposed instructions concerning

 whether he had acted reasonably because the self-

defense instructions that the court gave the jury

repeatedly referred to defendant’s “reasonable belief”;

43  apparent necessity because the self-defense instructions

that the court read to the jury tracked the self-defense

statute, thus incorporating the concept of apparent

necessity, see Beckett v. People, 800 P.2d 74, 78 (Colo.

1990); and

 no duty to retreat because the jury in this case was

instructed that defendant “was legally authorized to use

physical force upon another person without first

retreating” (emphasis added).

¶ 92 Turning to defendant’s contention that the court should have

read the first two instructions to the jury because he faced multiple

assailants, he did not raise it in the trial court. I therefore conclude

that any error that the court may have committed was not plain

because it was not obvious and because it did not so undermine the

trial’s fairness as to cast serious doubt on the fairness of his trial.

People v. Counterman, 2021 COA 97, ¶ 64. I further conclude that

defendant has not shown that the lack of these instructions

contributed to his conviction. Id. at ¶ 65.

¶ 93 The testimony in this case established that the passenger in

the victim’s car never threatened or assaulted either defendant or

44 his wife during the road rage incident. Rather, according to the

statement that defendant’s wife gave the investigating officer, the

passenger helped her to break up the fight. And, as I have observed

above, the court properly instructed the jury on self-defense, which

incorporated the concept of apparent necessity.

B. Prosecutorial Misconduct

¶ 94 Defendant next asserts that the trial court abused its

discretion because it allowed the prosecutor, during closing

argument, to misstate the law of self-defense, to comment on

defendant’s right not to testify, and to shift the burden of proof to

the defense.

¶ 95 I disagree because

 the prosecutor’s comments did not misstate the law

because they properly asked the jury to evaluate the

concept of initial aggressor in the context of the evidence

in the case;

 the prosecutor’s comments about what defendant did

and did not say focused solely on his interrogation by

the investigating officer; the prosecutor did not refer,

45 explicitly or implicitly, to the fact that defendant had not

testified during the trial;

 the prosecutor was entitled to comment on the lack of

evidence, including what defendant did and did not say

during the interrogation conducted by the investigating

officer, see People v. Welsh, 176 P.3d 781, 788 (Colo.

App. 2007); and

 the trial court properly instructed the jury on the

prosecution’s burden of proof, and the prosecutor did

not say that defendant bore any burden during the trial,

including the burden to prove that he had acted in self-

defense.

C. Expert Opinion

¶ 96 Defendant asserts that the trial court committed plain error

when, without any objection from defendant, it allowed a doctor to

testify that the stab wound to the victim’s face created a substantial

risk of serious, permanent disfigurement. Defendant further

submits that the doctor’s testimony usurped the jury’s role in

deciding whether the prosecution had proved, beyond a reasonable

doubt, that the victim had suffered serious bodily injury. This

46 occurred, defendant finishes up, because the doctor offered a legal

opinion about whether the prosecution had proved one of the

elements of second degree assault, with which defendant had been

charged, as opposed to providing a medical diagnosis.

¶ 97 I disagree because

 the doctor testified that his opinion was based on his

medical examination of the victim;

 “[w]hether an injury qualifies as a ‘serious bodily injury’

is a question of fact for the jury,” People v. Baker, 178

P.3d 1225, 1233 (Colo. App. 2007);

 the trial court properly instructed the jury that it could

accept or reject the doctor’s testimony, People v. Pahl,

169 P.3d 169, 182 (Colo. App. 2006); and

 the doctor did not say that defendant was guilty or that

he had caused the victim’s injuries, see People v. Rector,

248 P.3d 1196, 1203 (Colo. 2011).

D. Merger

¶ 98 Defendant contends that, based on the Double Jeopardy

Clause, his convictions for second and third degree assault should

merge because third degree assault is a lesser included offense of

47 second degree assault. The prosecution concedes this contention

because, under the facts of this case, there was only one victim and

only one criminal act. See People v. Baird, 66 P.3d 183, 193 (Colo.

App. 2002). After reviewing the record, I agree.

¶ 99 I would affirm defendant’s convictions for second and third

degree assault. I would remand this case to the trial court to merge

the conviction for third degree assault into the conviction for second

degree assault and to amend the mittimus to show that defendant

was only convicted of second degree assault.