People v. James M. Duncan

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
December 21, 2023

2023COA122

No. 22CA1114, People v. Duncan — Crimes — Provisions
Applicable to Offenses Generally — Definitions — Serious
Bodily Injury — Protracted

A division of the court of appeals holds that the word

“protracted,” as used in the definition of “serious bodily injury,”

§ 18-1-901(3)(p), C.R.S. 2023, means “prolonged, continued, or

extended” but does not necessarily mean “permanent.”

Using this definition, the division rejects the defendant’s

argument that insufficient evidence supported the jury’s finding

that the defendant caused the victim to suffer serious bodily injury.

Because it also rejects the defendant’s other challenges, the division

affirms the judgment.
COLORADO COURT OF APPEALS 2023COA122

Court of Appeals No. 22CA1114
City and County of Denver District Court No. 21CR957
Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James M. Duncan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE LUM
Navarro and Grove, JJ., concur

Announced December 21, 2023

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, James M. Duncan, appeals his conviction for

second degree assault. Arguing that the word “protracted” means

“permanent,” he contends that the jury did not have sufficient

evidence to find that he inflicted serious bodily injury because there

was no evidence that the victim suffered an injury involving a

“substantial risk of protracted loss or impairment of the function of

any part or organ of the body.” § 18-1-901(3)(p), C.R.S. 2023. As a

matter of first impression, we conclude that “protracted” means

“prolonged, continued, or extended” but does not necessarily mean

“permanent.” Applying that definition, we conclude that sufficient

evidence supported Duncan’s conviction. Because we also reject

Duncan’s contentions that (1) the statutory definition of serious

bodily injury is unconstitutionally vague and (2) the prosecutor

committed misconduct during closing argument, we affirm the

judgment.

I. Background

¶2 Duncan and the victim, Patricia Phalen, were living together in

a hotel room when they got into an altercation after Phalen told

Duncan that she wanted to end their relationship. The argument

escalated, at which point Duncan struck Phalen on the left side of

1
her face, contacting her left ear. The strike knocked her down.

Duncan then punched, kicked, and stomped on Phalen until she

fought him off and escaped.

¶3 Phalen ran to the hotel lobby, where staff helped her call 911.

Phalen told the 911 operator that she had lost hearing in her ear.

The police arrived and arrested Duncan. Paramedics took Phalen to

the hospital, but she did not require emergency treatment or

surgery, despite her hearing loss.

¶4 Twelve days after the incident, Phalen went to Scott Mann,

M.D., an ear, nose, and throat physician, because she remained

unable to hear out of her left ear. Dr. Mann testified that his initial

examination showed Phalen had a small hole in the front part of her

left eardrum. The hole was consistent with Duncan striking her

and causing barotrauma, a sudden increase in air pressure that

can perforate an eardrum. According to Dr. Mann, such holes

cause hearing loss but generally heal in six to eight weeks. Dr.

Mann asked Phalen to return for a repeat examination in about a

month.

¶5 Five months went by before Phalen returned for a second

examination. Phalen testified that her hearing had returned “the

2
day before” the appointment. Dr. Mann determined that Phalen’s

hearing had indeed returned to normal, although Phalen claimed at

trial that she still could not hear low tones.

¶6 Duncan was charged with second degree assault for causing

serious bodily injury — namely, the hole in Phalen’s eardrum that

caused her hearing loss. § 18-3-203(1)(g), C.R.S. 2023; see § 18-1-

901(3)(p). The jury convicted Duncan as charged, and he appeals.

II. Sufficiency of the Evidence

¶7 As relevant here, serious bodily injury is “bodily injury that,

either at the time of the actual injury or at a later time, involves . . .

a substantial risk of protracted loss or impairment of the function of

any part or organ of the body.” § 18-1-901(3)(p). Duncan contends

that the jury had insufficient evidence to find that he caused Phalen

an injury that carried a substantial risk of “protracted loss or

impairment.” He argues that the word “protracted” means

“permanent” and that the prosecution failed to present sufficient

evidence that Phalen experienced a substantial risk of suffering

permanent hearing loss as a result of the hole in her eardrum. We

are not persuaded.

3
A. Protracted

¶8 We review challenges to the sufficiency of the evidence de

novo, “even when the defendant raises such issues for the first time

on appeal and even if consideration of the issue involves a

preliminary question of statutory construction.” McCoy v. People,

2019 CO 44, ¶ 34.

¶9 Our “primary purpose” when analyzing the construction of a

statute “is to ascertain and give effect to the legislature’s intent.”

Id. at ¶ 37. “[W]e look first to the language of the statute, giving its

words and phrases their plain and ordinary meanings.” Id. “We

read statutory words and phrases in context, and we construe them

according to the rules of grammar and common usage.” Id.” As

well, “we read that scheme as a whole, giving consistent,

harmonious, and sensible effect to all of its parts,” and we “avoid

constructions that would render any words or phrases superfluous

or lead to illogical or absurd results.” Id. at ¶ 38.

¶ 10 Lacking a statutory definition, we must define “protracted” by

ascertaining its common usage, and we may use a dictionary to

discern the word’s plain and ordinary meaning. Johnson v. People,

2023 CO 7, ¶ 16; People v. Jaramillo, 183 P.3d 665, 671 (Colo. App.

4
2008). “Protract” is defined as “to prolong in time or space,”

“continue,” or “to extend forward or outward.” Merriam-Webster

Dictionary, https://perma.cc/7MYT-6R4H. By comparison,

“permanent” means “continuing or enduring without fundamental

or marked change,” “stable,” or generally “indelible.” Merriam-

Webster Dictionary, https://perma.cc/DSC9-FAMB.

¶ 11 Applying these definitions to section 18-1-901(3)(p), we

conclude that the ordinary meaning of “protracted loss or

impairment” is a loss or impairment that is prolonged, continued,

or extended. See Thompson v. State, 2018 WY 3, ¶ 40, 408 P.3d

756, 766 (Wyo. 2018) (“Using the standard definition of protracted,

the State must prove the victim suffered a long or lengthy

impairment of a bodily function.”); Walker v. State, 742 P.2d 790,

791 (Alaska Ct. App. 1987) (“‘Protracted’ is defined as ‘to draw out

or lengthen in time or space.’” (quoting Webster’s Third New

International Dictionary of the English Language Unabridged 1826

(1963))).

¶ 12 True, certain protracted losses or impairments may become so

extended that by the time of trial they appear to be permanent

conditions. Likewise, it may be difficult for a medical professional

5
to predict whether an impairment (1) will persist for an extended

period but eventually resolve or (2) will, in fact, be permanent. But

just because the definitions of protracted and permanent have some

overlap does not mean they are indistinguishable; injuries do not

need to be unchanging or “indelible” to be extended or prolonged.

In other words, every permanent condition is protracted, but not

every protracted condition is permanent.

¶ 13 Other language in the statutory definition of serious bodily

injury supports the distinction between protracted and permanent.

See McCoy, ¶ 38. “Serious bodily injury” as defined in section 18-1-

901(3)(p) includes several different types of injuries, each with a

different modifier: for example, “permanent disfigurement,”

“protracted loss,” and “penetrating gunshot wound.” (Emphasis

added.) We presume that the General Assembly intentionally

selected each modifier used in section 18-1-901(3)(p). Cf. People v.

Ryan, 2022 COA 136, ¶ 39 (“[W]e must give full effect to the words

chosen by the General Assembly and presume that it meant what it

clearly said.”). And the General Assembly clearly understood how

to use the word “permanent” because it specified that an injury

involving a risk of “disfigurement” is only a “serious bodily injury” if

6
it risks “permanent disfigurement.” § 18-1-901(3)(p). If the General

Assembly had intended for an injury to be a “serious bodily injury”

only if it involves a risk of “permanent” impairment or loss, it would

have said so.1 Cf. People v. Daniels, 240 P.3d 409, 412 (Colo. App.

2009) (“[W]hen the General Assembly sought to have a modifier

apply to each term in a series in this statute, it did so expressly.”).

1 We reject Duncan’s suggestion that People v. Jaramillo, 183 P.3d

665 (Colo. App. 2008), supports his contention that the General
Assembly intended “protracted” to mean “permanent,” even though
it used the word “permanent” earlier in section 18-1-901(3)(p),
C.R.S. 2023. Jaramillo interpreted the phrase “serious bodily
injury,” which involves “breaks,” “fractures,” and other types of
wounds. Id. at 670-71 (quoting § 18-1-901(3)(p), C.R.S. 2007). The
court noted that the dictionary definition of “fracture” is “the
breaking of hard tissue (as a bone, tooth, or cartilage).” Id. at 671
(quoting Webster’s Third New International Dictionary 901 (1986)).
Duncan highlights Jaramillo’s use of the word “breaking” within the
definition of “fracture,” arguing that different words in the statute
(“break” and “fracture”) can have the same meaning. But Jaramillo
was not focused on distinguishing between “breaks” and
“fractures.” Rather, the sole issue in Jaramillo was whether the
word “fracture” included a fracture of cartilage or whether it was
limited to a fracture of bone. Id. at 670. And while the statute
plainly includes both “breaks” and “fractures” within the meaning of
“serious bodily injury,” “permanent” and “protracted” modify
different types of injuries, implying that the General Assembly
intended for those injuries to have different time requirements
before qualifying as a “serious bodily injury.” See People v. Ryan,
2022 COA 136, ¶ 39.

7
¶ 14 Relying on People v. Dominguez, Duncan argues that, because

protracted and permanent lack a “sufficiently pragmatic difference,”

protracted necessarily means permanent. 193 Colo. 468, 470, 568

P.2d 54, 55 (1977) (quoting People v. Calvaresi, 188 Colo. 277, 282,

534 P.2d 316, 319 (1975)). In Dominguez, the defendant lacerated a

patron’s eye at a nightclub during a fight and was convicted of first

degree assault. Id. at 469, 568 P.2d at 54-55. The Colorado

Supreme Court examined whether the first degree assault statute

violated the defendant’s right to equal protection by penalizing that

offense more severely than second degree assault, even though the

statutes proscribed essentially the same conduct. Id. at 470, 568

P.2d at 55.

¶ 15 At the time Dominguez was decided, a person committed first

degree assault if, with the “intent to . . . disable permanently a

member or organ of his body, he causes such an injury to any

person.” Id. (quoting § 18-3-202(1)(b), C.R.S. 1973). And a person

committed second degree assault if, with the “intent to cause

serious bodily injury to another person, he does cause such injury

to any person.” Id. (quoting § 18-3-203(1)(a), C.R.S. 1973). At that

time, “serious bodily injury” was defined as including a “protracted

8
loss or impairment of the function of any part or organ of the body.”

Id. (quoting § 18-1-901(3)(p), C.R.S. 1973). The supreme court

concluded that the distinction between “‘permanent’ disablement”

and “protracted loss or impairment” was “not sufficiently apparent

to be intelligently and uniformly applied.” Id. (quoting Calvaresi,

188 Colo. at 282, 534 P.2d at 318). Thus, the statute violated equal

protection guarantees. Id.

¶ 16 But the holding in Dominguez does not compel us to accept

Duncan’s definition because Dominguez did not define “protracted,”

much less define it to mean “permanent” and nothing less than

permanent. In fact, the court noted that “[w]hether a particular

injury will involve a ‘permanent’ or ‘protracted’ loss is frequently not

even ascertainable at the time of trial.” Id. This language suggests

that the supreme court recognized a difference between

“permanent” and merely “protracted” but also recognized a potential

practical difficulty in discerning which category the loss would fall

into when the case was tried. And as we explained above, while a

“permanent” loss also qualifies as a “protracted” loss, a loss does

not need to be permanent to be protracted — it simply needs to be

prolonged.

9
¶ 17 Duncan also cites two cases that followed Dominguez, claiming

they bolster the notion that protracted means permanent and

nothing less than permanent. We disagree. People v. Brown, 677

P.2d 406, 407 (Colo. App. 1983), and People v. Thompson, 748 P.2d

793, 794 (Colo. 1988), both involved injuries that caused, or

substantially risked causing, a permanent loss or impairment of a

bodily function. However, these cases merely confirm that a

protracted loss can be permanent. Brown, 677 P.2d at 409;

Thompson, 748 P.2d at 794. It does not follow that the loss must be

permanent.

B. Application

¶ 18 Having determined that “protracted” means “prolonged,” but

not necessarily “permanent,” we consider whether the jury had

sufficient evidence to convict Duncan for causing Phalen an injury

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

involves . . . a substantial risk of protracted loss or impairment of

the function of any part or organ of the body.”2 § 18-1-901(3)(p).

2 Duncan does not contend that the jury had insufficient evidence

to find that he caused the perforated eardrum. His argument
focuses instead on whether the perforated eardrum was a serious
bodily injury under the meaning of the statute.

10
¶ 19 In reviewing the sufficiency of the evidence, we examine

“whether the evidence before the jury was sufficient both in

quantity and quality to sustain the defendant’s conviction.”

Johnson, ¶ 13 (citation omitted). We consider whether the relevant

evidence, “when viewed as a whole and in the light most favorable

to the prosecution, is substantial and sufficient to support a

conclusion by a reasonable mind that the defendant is guilty of the

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

¶ 20 Dr. Mann testified as follows:

 Phalen suffered a hole covering ten percent of her eardrum

consistent with a sudden increase of pressure caused by a

physical blow to her ear.

 The hole in Phalen’s eardrum would typically cause hearing

loss.

 Most of the time, this type of injury heals on its own in four

to eight weeks, although some people are unable to heal

and require surgery or hearing aids.

¶ 21 Phalen testified that, after Duncan’s strike, she suffered a loss

of hearing in her left ear for five months, until the day before her

second examination with Dr. Mann. And she affirmed that nothing

11
other than Duncan striking her would have caused the perforation

and loss of hearing. Although her hearing test was normal at the

second examination, she also testified that she remained unable to

hear low tones.

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

prosecution, there was substantial and sufficient evidence for the

jury to convict Duncan of second degree assault. Even though

Phalen eventually recovered (or mostly recovered) her hearing, it

was reasonable for the jury to conclude that the injury involved a

“substantial risk of protracted loss or impairment of the function of

any part or organ of the body” based on (1) the injury itself; (2) Dr.

Mann’s testimony that such an injury typically causes hearing loss,

which usually resolves within four to eight weeks; and (3) Phalen’s

testimony that she did suffer hearing loss for five months. See id.;

People v. Rodriguez, 888 P.2d 278, 289 (Colo. App. 1994) (“The fact

that the victim healed well and made a good recovery is not relevant

to the determination that he suffered a serious bodily injury.”); see

also Thompson, ¶ 42, 408 P.3d at 766 (loss of hearing for one

month was “sufficiently lengthy to be categorized as a protracted

impairment of a bodily function”).

12
III. Unconstitutional Vagueness

¶ 23 Duncan next contends that the definition of “serious bodily

injury” is unconstitutionally vague, both facially and as applied,

because the word “protracted” could mean an injury that extends

for any period of time, from mere minutes to permanently.

¶ 24 We decline to address Duncan’s unpreserved claim that the

statute is unconstitutionally vague as applied because as-applied

challenges ordinarily require development of a factual record.

People v. Stone, 2020 COA 23, ¶ 49 (“[I]t is imperative that the trial

court make some factual record that indicates what causes the

statute to be unconstitutional as applied.” (quoting People v. Veren,

140 P.3d 131, 140 (Colo. App. 2005))).

¶ 25 Regarding Duncan’s unpreserved facial vagueness challenge,

“an appellate court ‘may, as a matter of discretion, take up an

unpreserved challenge to the constitutionality of a statute, but only

where doing so would clearly further judicial economy.’” People v.

Mountjoy, 2016 COA 86, ¶ 35 (citation omitted), aff’d on other

grounds, 2018 CO 92M. Duncan does not explain, nor do we

discern, how exercising our discretion to review his facial vagueness

challenge would further judicial economy.

13
¶ 26 But even if we were to review the unpreserved challenge, we

would not discern plain error. Hagos v. People, 2012 CO 63, ¶ 14

(applying plain error to all unpreserved constitutional errors that

are not structural error).3

¶ 27 Plain error is error that is “obvious and substantial and that

so undermined the fundamental fairness of the trial itself as to cast

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

People v. Robinson, 2019 CO 102, ¶ 19. For an error to be obvious,

“the action challenged on appeal must contravene (1) a clear

statutory command, (2) a well-settled legal principle, or

([3]) Colorado case law.” People v. Pollard, 2013 COA 31M, ¶ 40

(citations omitted).

¶ 28 The Colorado Supreme Court has already concluded that there

is “nothing vague in the definition of ‘serious bodily injury.’” People

v. Jackson, 194 Colo. 93, 95, 570 P.2d 527, 528 (1977).4 And a

3 We reject Duncan’s suggestion that structural error applies in this

case. See Johnson v. People, 2023 CO 7, ¶ 28 (applying plain error
review to unpreserved vagueness challenge).
4 At the time People v. Jackson was decided, the definition of

“serious bodily injury” included the phrase “protracted loss or
impairment of the function of any part or organ of the body.” 194
Colo. 93, 95, 570 P.2d 527, 528 (1977) (quoting § 18-1-901(3)(p),
C.R.S. 1973).

14
division of this court has likewise held that the definition of “serious

bodily injury” is “not unconstitutionally vague on its face” simply

because its meaning contains undefined terms, such as “risk,”

“substantial,” “protracted,” and “impairment.” People v. Summitt,

104 P.3d 232, 238-39 (Colo. App. 2004), rev’d on other grounds, 132

P.3d 320 (Colo. 2006). Further, Duncan does not cite to any

Colorado authority, and we are aware of none, holding that the

word “protracted” is unconstitutionally vague. Thus, the trial court

could not reasonably have been expected to intervene sua sponte

and find the statute unconstitutionally vague. See People v.

Ujaama, 2012 COA 36, ¶ 42; see also Scott v. People, 2017 CO 16,

¶ 17 (“[A]n error will not ordinarily be deemed ‘obvious’ when either

this court or a division of the court of appeals has previously

rejected an argument being advanced by a subsequent party who is

asserting plain error.”); Rocky Mountain Gun Owners v. Polis, 2020

CO 66, ¶ 30 (“Statutes are entitled to a presumption of

constitutionality, rooted in the doctrine of separation of powers,

through which ‘the judiciary respects the roles of the legislature and

the executive in the enactment of laws.’”) (quoting City of

15
Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d

427, 440 (Colo. 2000)).

IV. Prosecutorial Misconduct

¶ 29 Duncan argues that, during closing arguments, the prosecutor

(1) mischaracterized the definition of reasonable doubt and shifted

the burden of proof to Duncan; (2) misled the jury as to the

meaning of “substantial risk”; and (3) misled the jury as to the

meaning of “protracted.” We are not persuaded.

A. Applicable Legal Standards

¶ 30 We review for an abuse of discretion a trial court’s

determination of whether a prosecutor’s statements constitute

improper prosecutorial argument. People v. Strock, 252 P.3d 1148,

1152 (Colo. App. 2010). Our review of alleged prosecutorial

misconduct has two steps. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we “must determine whether the prosecutor’s

questionable conduct was improper based on the totality of the

circumstances and, second, whether such actions warrant reversal

according to the proper standard of review.” Id.

¶ 31 The prosecutor must “scrupulously avoid comments that

could mislead or prejudice the jury.” Domingo-Gomez v. People, 125

16
P.3d 1043, 1049 (Colo. 2005). “We must evaluate claims of

improper argument in the context of the argument as a whole and

in light of the evidence before the jury.” People v. McMinn, 2013

COA 94, ¶ 60. “In doing so, we recognize that prosecutors have

wide latitude in the language and style they choose to employ, as

well as in replying to an argument by opposing counsel.” Id. The

prosecutor may engage in oratorical embellishment and

metaphorical nuance. People v. Vialpando, 2022 CO 28, ¶ 23. But

while the prosecutor can “comment on the evidence admitted at

trial and the reasonable inferences that can be drawn therefrom,”

she cannot “misstate or misinterpret the law.” McMinn, ¶¶ 61-62.

¶ 32 It is improper for a prosecutor to shift the burden of proving

innocence to a defendant. People v. Santana, 255 P.3d 1126, 1130

(Colo. 2011). Viewing the entire record, we assess if the

prosecutor’s comments improperly shifted the burden of proof

according to whether

(1) the prosecutor specifically argued or
intended to establish that the defendant
carried the burden of proof; (2) the
prosecutor’s actions constituted a fair
response to the questioning and comments of
defense counsel; and (3) the jury is informed
by counsel and the court about the

17
defendant’s presumption of innocence and the
prosecution’s burden of proof.

Id. at 1131-32 (footnotes omitted). Our assessment recognizes that

the prosecutor can “comment on the lack of evidence confirming [a]

defendant’s theory of the case.” People v. Medina, 190 Colo. 225,

226, 545 P.2d 702, 703 (1976).

¶ 33 We review unpreserved claims of prosecutorial misconduct for

plain error. Hagos, ¶ 14. Only prosecutorial misconduct that is

“flagrantly, glaringly, or tremendously improper” warrants reversal

under the plain error test. Id. (quoting People v. Avila, 944 P.2d

673, 676 (Colo. App. 1997)).

¶ 34 We review preserved claims of prosecutorial misconduct for

harmless error, which requires reversal if there is a reasonable

probability that any error by the trial court contributed to the

defendant’s conviction. People v. Monroe, 2020 CO 67, ¶ 17.

B. Analysis

1. Reasonable Doubt

¶ 35 During closing, the prosecutor argued as follows:

 “[The jury instruction] tells you what reasonable doubt is,

what it is not. It’s not vague and it’s not speculative or an

18
imaginary doubt. It’s not the what ifs, because what you’re

to consider are the what is, the evidence that you heard

over the last two days.”

 “So any other cause of that perforated eardrum, that’s a

what if, and that’s not reasonable doubt because that’s

speculation because there’s no evidence that anything other

than the slap by Mr. Duncan caused that injury. That is

the what if.”

 “Speculating that maybe, well, could have been someone

else [who committed the assault]. That’s a what if. That is

not reasonable doubt.”

¶ 36 Focusing on the prosecutor’s statements about “what ifs,”

Duncan contends this line of argument (1) mischaracterized

reasonable doubt in a way that lowered the prosecution’s burden of

proof and (2) implied that Duncan had to present evidence to rebut

the prosecution’s charges. We disagree.

¶ 37 Each of the prosecutor’s references to “what ifs” was

immediately preceded by a reference to speculation. We agree with

the People that, taken in context, the prosecutor used the term

“what ifs” as another way of saying doubt that is “vague” or

19
“speculative,” which tracks the instructions given to the jury:

reasonable doubt is “not a vague, speculative, or imaginary doubt,

but such a doubt that would cause reasonable people to hesitate to

act in matters of importance to themselves.” See COLJI-Crim. E:03

(2021).5 Such statements therefore did not mislead the jury as to

the concept of “reasonable doubt” or lower the prosecution’s burden

of proof.

¶ 38 Likewise, the prosecutor’s statements about “what ifs” did not

improperly shift the burden of proof to Duncan. The prosecutor did

not suggest that Duncan carried the burden of proof, and both the

court and the prosecutor informed the jury about the presumption

of innocence and the prosecution’s burden. See Santana, 255 P.3d

at 1131-32. In her closing argument, the prosecutor merely

highlighted the lack of evidence supporting Duncan’s theory that

someone or something else caused Phalen’s perforated eardrum.

5 The instruction defining reasonable doubt given to the jury at trial

used language matching the 2021 pattern instructions. Duncan
does not challenge this instruction on appeal. The supreme court
has since updated this language in the pattern instructions, but
“this update in no way casts aspersions on the validity of the prior
version of this instruction, which the U.S. Supreme Court has
explicitly approved.” COLJI-Crim. E:03 cmt. 1 (2022) (citing Victor
v. Nebraska, 511 U.S. 1, 20 (1994)).

20
See People v. Walker, 2022 COA 15, ¶ 41 (“Commenting on the lack

of evidence supporting a defense theory does not shift the burden of

proof.”).

¶ 39 For these reasons, the prosecutor’s comments about “what ifs”

were not improper.

2. Substantial Risk

¶ 40 The prosecutor also made statements during closing argument

highlighting the evidence that Phalen did, in fact, lose her hearing

for five months. Duncan argues that these remarks asked the jury

to misapply the law because they urged the jury to focus on the

actual result of his conduct rather than on whether his conduct

created a “substantial risk” of that result. Thus, he contends that

the jury should only have considered “the conduct (the strike), the

injury (the hole in the eardrum), and the risk associated with that

injury (Dr. Mann’s testimony that the majority of injuries heal

within one to two months without any further surgery or

treatment).” He further argues that the jury may have thought that

five months was protracted but two months — the upper end of the

“typical” healing window described by Dr. Mann — was not.

21
¶ 41 Duncan’s argument relies on interpreting “serious bodily

injury” to exclude injuries that do not carry a substantial risk of

protracted loss or impairment even if the injury does in fact cause

such a loss or impairment. Assuming, without deciding, that

Duncan’s interpretation is accurate, we perceive no error.

¶ 42 First and foremost, the prosecutor’s comments were well

within the realm of reasonable inferences that may fairly be drawn

from the evidence. Strock, 252 P.3d at 1153. As we described

earlier, the jury heard that a ruptured eardrum typically causes

hearing loss. And it is fair to use evidence of the length of Phalen’s

actual hearing loss, in combination with Dr. Mann’s testimony that

a perforated eardrum typically causes hearing loss, to infer that a

perforated eardrum is an injury that carries a risk of “protracted”

hearing loss. See id.; see also Vialpando, ¶ 23 (“[A] prosecutor may

highlight facts in evidence . . . .”).

¶ 43 Furthermore, Duncan takes out of context most of the

statements he identifies. In many instances, the prosecutor

discussed not only the period of hearing loss Phalen actually

suffered but also Dr. Mann’s testimony about the typical healing

window of one to two months:

22
 “[Phalen’s] saying on the 911 [recording], I can’t hear

myself . . . . And then you have confirmation that two

weeks later she still can’t hear and there’s still a

documented injury. That’s an extended period of time. And

then beyond that you have Dr. Mann telling you yes, while

they can heal on their own, it can take one to two months

or longer. Sometimes they need surgery. And thankfully,

Ms. Phalen didn’t need surgery, but that doesn’t mean it

wasn’t serious bodily injury. She was without hearing for

five months in one of her ears.”

 “You have Dr. Mann’s testimony that it takes one to two

months, sometimes longer. And then beyond a reasonable

doubt is you have her sworn testimony that it was five

months.”

 “And you have definitive proof not that there was a risk but

that there was actual loss and impairment of the use of her

ear. You know it was at least ten days later, and that it

would take a month or two. That is an extended period of

time to go without hearing in one of your ears.”

23
¶ 44 The prosecutor also discussed Phalen’s actual hearing loss to

dispute an argument raised by defense counsel:

Defense said something interesting in their
closing argument. They said he didn’t hit her
hard enough to cause serious bodily injury.
But what you have is the testimony of Dr.
Mann who shows that she did, in fact, have it
because the definition says substantial risk,
and what Dr. Mann’s testimony and testing
shows you is that she actually had injuries.

And the prosecutor concluded that section of the argument by

explaining the following:

And just because she didn’t need surgery that
day, that she didn’t need to be seen that day
doesn’t change that she still didn’t have
hearing for ten days, a month to two
months . . . . The defense isn’t contesting that
Dr. Mann found an injury, that the injury
takes one to two months at least to heal, that
the injury was present even at all. That
satisfies the definition of serious bodily injury.

(Emphasis added.)

¶ 45 The prosecutor thus repeatedly highlighted Dr. Mann’s

testimony on the typical healing period, even explicitly saying that

one to two months “satisfies the definition of serious bodily injury.”

To the extent there may have been one or two isolated instances

where the prosecutor referred only to the five-month hearing loss

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when discussing the “protracted” nature of the injury, we do not

perceive such comments to be problematic when considering the

context of the closing as a whole.

3. Definition of “Protracted”

¶ 46 Duncan contends that the prosecutor misled the jurors by

informing them that they could find serious bodily injury based on

a risk of less-than-permanent impairment. Because we have

concluded that “protracted” does not necessarily mean

“permanent,” we reject this argument.

¶ 47 Finally, Duncan contends that the prosecutor misled the jury

by arguing that it could not consider what the legislature meant by

the word “protracted.” Duncan bases this argument on a brief

statement from the middle of the prosecutor’s rebuttal closing

argument: “And that is why you can find him guilty because

protracted or extended period of time, the legislature didn’t provide

a definition and what they intended or not, you have no evidence

before you, so that goes into that what if. That’s speculation. That

is not reasonable doubt.” Defense counsel did not object.

¶ 48 Reading the rebuttal closing as a whole, it is apparent that the

prosecutor was responding to several arguments made by defense

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counsel during her closing: (1) the typical one-to-two-month healing

period did not correspond with a “protracted” loss under the

statutory definition of serious bodily injury; (2) the injury itself did

not pose an “imminent threat to life or limb or permanent damage

to an organ”; (3) the physical evidence showed that Duncan did not

cause Phalen’s injury; and (4) Phalen’s testimony that Duncan

caused her injury was not credible. Considered in context, we do

not read the disputed statements as implying that the jury needed

evidence of the legislature’s intent. Rather, the prosecutor was

referring to the lack of evidence that the cause of the injury was

anything other than Duncan hitting Phalen. We also note that,

elsewhere, the prosecutor encouraged the jury to use its “common

sense” and explained that “protracted” means “an extended period

of time” — the same definition used by defense counsel in her

closing argument.

¶ 49 While perhaps inartful, we cannot conclude that the single

passing remark about legislative intent encouraged the jury to

misapply the law. See McMinn, ¶ 60 (“[B]ecause arguments

delivered in the heat of trial are not always perfectly scripted,

reviewing courts accord prosecutors the benefit of the doubt when

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their remarks are ambiguous or simply inartful.”). And even if the

remark was misconduct, it was not “flagrantly, glaringly, or

tremendously improper” and therefore is not plain error.6 Domingo-

Gomez, 125 P.3d at 1053 (citation omitted).

V. Disposition

¶ 50 The judgment is affirmed.

JUDGE NAVARRO and JUDGE GROVE concur.

6 To the extent Duncan contends that the prosecutor’s statement

also improperly shifted the burden by implying Duncan had to
prove legislative intent, we decline to address this particular claim,
as Duncan raised it for the first time in his reply brief. People v.
Boles, 280 P.3d 55, 61 n.4 (Colo. App. 2011).

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