Peo v. Pope

21CA0963 Peo v Pope 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0963
Jackson County District Court No. 19CR24
Honorable Stephen J. Jouard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Douglas Dean Pope,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE SCHUTZ
Tow and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Douglas Dean Pope appeals the judgment of

conviction entered on a jury verdict finding him guilty on one count

of second degree assault (serious bodily injury). We affirm.

I. Background and Procedural History

A. The Assault and Immediate Aftermath

¶2 In December 2019, Tina1 and Douglas Pope, who had been

married for five years, were involved in an argument after Tina

accidently damaged Pope’s guitar. After a tense few days, Tina

suggested that Pope spend some time at a hotel because they were

“cooped up” together in their home. He declined to leave, so Tina

decided to stay at a hotel.

¶3 When Tina informed him of her decision to leave, Pope, who

stood six feet five inches tall and weighed around 300 pounds,

grabbed her by the arm, cornered her in the kitchen, and repeatedly

punched her in the head and neck, as she crouched below him.

Tina testified that after Pope stopped hitting her, she saw “black

1 Because Tina and Douglas share the same last name, to avoid

confusion we will refer to Tina by her first name. We mean no
disrespect by doing so.

1
stars” and felt dizzy and nauseous but remained conscious. She

fled to their home office and barricaded the door with a chair.

¶4 Pope called 911 and told the dispatcher that he had hit Tina

and “needed to be picked up.” Officers arrested him when they

arrived at the home.

¶5 Officers testified that Tina had significant bruising and

abrasions on her neck and face. Paramedics transported Tina to

the hospital where Dr. Lynette Telck examined her. Dr. Telck

diagnosed her with post-traumatic headache, not intractable, which

means that the injury was not so “completely overwhelming that

[Tina was not] at least . . . able to walk and communicate her

concerns.”

¶6 After a series of follow-up appointments, Dr. Telck concluded

Tina had suffered a concussion during the attack. Dr. Telck

described a concussion as “a physical injury to the organ of the

brain.” At a further follow-up appointment in February 2020, after

Tina reported ongoing issues with headaches, dizziness, and

balance, Dr. Telck referred her to physical therapy to address the

concussion.

2
¶7 Prior to the assault, Tina had been diagnosed with diabetes

and epilepsy. Tina did not initially disclose her medical history to

Dr. Telck, but Dr. Telck learned about it when preparing for

subsequent appointments.

¶8 In April 2020, Pope’s counsel requested that Tina be referred

for a neuropsychological evaluation to explore the scope of her

injuries, but Tina never followed through with the referral.

¶9 In May 2020, six months after the assault, Tina met virtually2

with Dr. Sarah Yang, a neurologist. Tina reported that she was

experiencing daily headaches, frequent migraines, dizziness,

balance issues, behavioral changes, and memory loss. She also

reported frequent noise and light sensitivity, as well as head and

neck pain. After the consultation, Dr. Yang referred Tina for an

MRI.

¶ 10 Dr. Yang testified that Tina’s symptoms were consistent with

post-concussive syndrome, a brain injury that results from the

brain moving back and forth in the skull. Such movement can

2 Dr. Yang’s consultations with Tina took place in spring 2020.
Due
to the COVID-19 pandemic, in-person visits were limited, and she
did not physically examine Tina.

3
damage the brain’s neurons and cells. Dr. Yang also noted that

Tina’s symptoms could also be attributable to post-traumatic stress

disorder or pseudodementia.

B. The Trial and Conviction

¶ 11 Pope was charged with false imprisonment3 and second degree

assault (serious bodily injury). The matter was set for a jury trial.

¶ 12 The primary disputed issue at trial was whether Pope caused

serious bodily injury to Tina. 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 death; a substantial risk of
serious permanent disfigurement; a
substantial risk of protracted loss or
impairment of the function of any part or
organ of the body; or breaks, fractures, a
penetrating knife or penetrating gunshot
wound, or burns of the second or third degree.

§ 18-1-901(3)(p), C.R.S 2024.4

3 The trial court acquitted Pope on the false imprisonment charge at

the conclusion of the People’s evidence after finding that there was
not sufficient evidence to submit the count to the jury.
4 At trial and on appeal, the parties agreed that the only potential

basis for a finding that Tina suffered a serious bodily injury was
“the substantial risk of protracted loss or impairment of the
function of any part of the body.”

4
¶ 13 In addition to testimony from Dr. Telck and Dr. Yang, the jury

also heard from Dr. Jenna Miller, a neuropsychologist who testified

that Tina’s injuries were not consistent with a concussion and

explained that her subsequent symptoms could be attributed to

other factors such as underlying medical conditions or stress.

¶ 14 During deliberations, the jury asked the court for the legal

definitions of “protracted” and “impairment.” The court responded

to the question stating, “you have been given all the instructions of

law you may properly consider.”

¶ 15 The jury returned a guilty verdict on second degree assault

(serious bodily injury). The trial court sentenced Pope to six years

in the custody of the Department of Corrections.

¶ 16 Pope appeals the judgment of conviction, arguing that (1) the

verdict was not supported by sufficient evidence; (2) the definition of

serious bodily injury is unconstitutionally vague; (3) the trial court

erred by improperly allowing expert witnesses to offer a legal

opinion as to whether Tina suffered serious bodily injury; and

(4) the court erred by preventing Pope’s counsel from fully cross-

examining Tina. We address these contentions in turn.

5
II. Sufficiency of the Evidence

¶ 17 Pope contends that the prosecution failed to present sufficient

evidence to prove that Pope caused Tina “a substantial risk of

protracted loss or impairment of the function of any part or organ of

the body” and therefore, his conviction must be reversed.

A. Standard of Review and Applicable Law

¶ 18 We review the record de novo to determine whether the

evidence was sufficient both in quantity and quality to sustain a

conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010).

¶ 19 To determine whether the prosecution presented sufficient

evidence, we consider “whether the relevant evidence, both direct

and circumstantial, 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. (quoting People v.

Bennett, 515 P.2d 466, 469 (Colo. 1973)). In jury trials, the jury

“decides difficult questions about the weight it determines to give

conflicting evidence.” Id. at 1293. Appellate courts do not sit as a

thirteenth juror to second-guess the jury’s weighing of the evidence.

See id.

6
¶ 20 As relevant in this case, serious bodily injury is an injury that,

at or after the time the injury was incurred, 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). The facts of the actual injury

control determination of serious bodily injury, not “the risk

generally associated with the type of conduct or injury in question.”

People v. Vigil, 2021 CO 46, ¶ 33 (interpreting the substantial risk

of death component of serious bodily injury).

B. Application

¶ 21 Pope contends that there was insufficient evidence as a matter

of law for the jury to find that he caused Tina protracted loss or

impairment of any part or area of her body. Specifically, Pope

focuses on the following evidence: (1) Tina had underlying medical

issues, such as diabetes, which potentially caused or contributed to

her post-assault symptoms; (2) Tina’s subsequent behavior, such as

not completing the neuropsychological evaluation in April 2020 and

missing follow-up appointments with Dr. Telck, indicate that her

injury may not have been as serious as the prosecution argued; and

(3) the testimony offered by Tina and the expert witnesses did not

support the jury’s serious bodily injury finding beyond a reasonable

7
doubt because her symptoms can be explained by causes

independent of the assault.

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

prosecution, we conclude that there was sufficient evidence that

Pope caused serious bodily injury to Tina. The jury could have

plausibly found beyond a reasonable doubt that Pope actually

caused Tina to suffer a “protracted loss or impairment of the

function” of her brain based on the following evidence: (1) Tina’s

testimony that Pope repeatedly punched her head like a

“jackhammer”; (2) Pope’s admission to the 911 dispatcher that he

“needed to be picked up” after hitting Tina; (3) photos of Tina after

the assault; (4) testimony from Tina’s treating physicians that her

subsequent symptoms were consistent with injuries stemming from

the assault; and (5) testimony that Tina was diagnosed with a

concussion and then post-concussive disorder, after the assault.

The jury also heard testimony, as discussed more fully below, that

Tina’s injuries created a substantial risk of protracted impairment

of her brain function.

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

prosecution, we conclude that a reasonable jury could find beyond

8
a reasonable doubt that Pope caused serious bodily injury to Tina,

and therefore, we reject Pope’s sufficiency challenge.

III. Void for Vagueness

¶ 24 Pope next argues the term “protracted loss or impairment” is

unconstitutionally vague and therefore violates his right to equal

protection under the federal and state constitutions. Not so.

A. Standard of Review and Applicable Law

¶ 25 Pope did not raise his void for vagueness argument before the

trial court. Nevertheless, we may reach the merits of unpreserved

constitutional claims under limited circumstances. See People v.

Devorss, 277 P.3d 829, 834 (Colo. App. 2011).

¶ 26 A statute’s constitutionality is a question of law that we review

de novo. People v. Torline, 2020 COA 160, ¶ 8. “A statute is facially

void for vagueness if it is incomprehensible in all of its

applications.” Devorss, 277 P.3d at 835. The challenger has the

burden to prove a statute is unconstitutional beyond a reasonable

doubt. Torline, ¶ 8.

¶ 27 To prevail on a vagueness challenge the defendant must show

that the statute “forbids or requires the doing of an act in terms so

vague that persons of ordinary intelligence must necessarily guess

9
as to its meaning and differ as to its application.” Devorss, 277

P.3d at 835 (quoting People v. Gross, 830 P.2d 933, 937 (Colo.

1992)). A defendant may challenge a statute’s constitutionality as

applied to them or facially. To prevail on a claim that a statute is

vague as applied, a defendant must establish that the “[statute]

does not, with sufficient clarity, prohibit the conduct against which

it is to be enforced.” People v. McIntier, 134 P.3d 467, 475 (Colo.

App. 2005). An as-applied challenge is therefore based on the

particular defendant’s conduct. Id. In contrast, to establish a claim

that a statute is facially unconstitutional, a defendant must prove

beyond a reasonable doubt that the statute is unconstitutionally

vague in all its potential applications. People v. Houser, 2013 COA

11, ¶ 41.

B. Application

¶ 28 As an initial matter, Pope never expressly states whether he

challenges the application of section 18-1-901(3)(p) as applied or on

its face. However, he does not develop any factual argument

explaining why the statute is unconstitutional as specifically

applied to his conduct. Moreover, Pope failed to develop his as-

applied challenge in the trial court. Because an as-applied

10
challenge must be based on specific facts developed in the trial

court, and no such facts were developed here, we decline to address

Pope’s as-applied challenge. See People v. Stone, 2020 COA 23, ¶

49 (“We do not consider as-applied challenges that are not

presented to the trial court . . . .”).

¶ 29 To prevail on his facial challenge, Pope must prove beyond a

reasonable doubt that section 18-1-901(3)(p) “forbids or requires

the doing of an act in terms so vague that persons of ordinary

intelligence must necessarily guess as to its meaning and differ as

to its application.” Devorss, 277 P.3d at 835. Though Pope

correctly notes that neither the phrase “protracted loss or

impairment” nor its constituent components are defined by statute,

he presents no evidence that persons of ordinary intelligence cannot

understand the meaning of the term.

¶ 30 Moreover, Pope concedes, there is case law that delineates the

difference between various types of harm and distinguishes serious

bodily injury from bodily injury. See People v. Brown, 677 P.2d

406, 409 (Colo. App. 1983). Furthermore, divisions of this court

have previously determined that the terms “serious bodily injury,”

“substantial,” “protracted,” and “impairment” are not considered

11
unconstitutionally vague merely because section 18-1-901(3)(p)

does not define the terms. See People v. Duncan, 2023 COA 122, ¶

28 (collecting cases).

¶ 31 Though we are not bound by the decisions of other divisions of

this court, we see no reason to depart from these holdings,

particularly given the lack of evidence or authority suggesting that

people of ordinary intelligence cannot understand the meaning of

“protracted loss or impairment.” This is particularly true when, as

here, a defendant fails to assert his facial challenge in the trial

court. Id. at ¶ 28 (In light of existing case law rejecting

constitutional challenges to the definition of serious bodily injury,

“the trial court could not reasonably have been expected to

intervene sua sponte and find the statute unconstitutionally

vague.”). We therefore reject Pope’s facial challenge.

IV. Improper Expert Testimony

¶ 32 Pope contends that the trial court erred by allowing Dr. Telck

and Dr. Yang to provide legal opinions about whether Tina’s injuries

met the definition of serious bodily injury. Even though we

conclude that this testimony crossed into legal opinions, we

ultimately conclude that the trial court did not abuse its discretion

12
by admitting the evidence, and to the extent the court did abuse its

discretion, any error was harmless.

A. Additional Facts

¶ 33 The day before the trial started, Pope’s counsel filed a motion

objecting to Dr. Telck’s and Dr. Yang’s proposed testimony offering

an opinion about whether Tina suffered “serious bodily injury.” The

next morning, at a pretrial conference, the parties argued the merits

of the motion. The trial court found that Dr. Telck’s and Dr. Yang’s

proposed testimony on whether Tina suffered serious bodily injury

also could be characterized as a medical/legal definition and

therefore the opinions were admissible. The court noted that the

jury would be specifically instructed that they may accept or reject

any testimony, including that of an expert witness.

¶ 34 At trial, the prosecution asked Dr. Telck whether she was

familiar with a law enforcement document known as a serious

bodily injury form (SBI form). Dr. Telck testified that she was

familiar with the SBI form and that she signed one on the day she

first examined Tina. The prosecutor then asked her about the

form’s content:

13
[Prosecutor]: [D]id you also have to make an
assessment about serious bodily injury?

[Telck]: I did.

[Prosecutor]: So you’re familiar with the
medicolegal definition5 of serious bodily injury
that was on that form?

[Telck]: I am.

...

[Prosecutor]: All right. So on that form there is
a definition of serious bodily injury?

[Telck]: There is.

[Prosecutor]: Are you familiar with that
definition?

[Telck]: I am.

[Prosecutor]: And is that because you had
encountered it before?

[Telck]: Yes, that is correct.

[Prosecutor]: And so have you had an
opportunity to fully consider that definition?

[Telck]: I have.

5 This term is potentially misleading because it implies that a legal

definition incorporating medical concepts are inherently
inseparable, and therefore any opinion concerning the ultimate
legal issue is proper for a qualified physician to make. For the
reasons explained more fully below, we reject this suggestion.

14
[Prosecutor]: Did you have an opportunity to
fully consider that definition on the day of the
assault?

[Telck]: I did.

¶ 35 The prosecutor asked Dr. Telck to elaborate on the SBI form’s

content:

[Prosecutor]: . . .[W]hen you’re looking at that
form, the serious bodily injury form, is there a
definition of serious bodily injury on that
form?

[Telck]: There is.

[Prosecutor]: What does that definition say?

[Telck]: It says, Serious bodily injury, in
quotes, means bodily injury which either at the
time of the actual injury or at a later time
involves a substantial risk of death, a
substantial risk of serious permanent
disfigurement, a substantial risk of protracted
loss or impairment of the function of any part
or organ of the body, or breaks, fractures, or
burns of the second or third degree.

[Prosecutor]: Okay. So based on your
familiarity with that definition and familiarity
with the patient that day that you assessed
her, did you make a determination that Tina
Pope had suffered serious bodily injury?

[Telck]: I did.

...

15
[Prosecutor]: And the brain is -- when it says
an organ of the body, is the brain an organ of
the body?

[Telck]: It is, yes.

[Prosecutor]: Were you concerned about
protracted loss of function of the organ, the
brain?

[Telck]: Absolutely.

[Prosecutor] For what reason?

[Telck]: Because of the manner in which she
was assaulted.

[Prosecutor]: Okay. And so typically can
concussions cause protracted issues?

[Telck]: Absolutely. Concussions can cause all
sorts of long-term issues.

[Prosecutor]: So on the date of the assault,
under that definition of at the time of the
assault or at a later date, there was
substantial risk of what?

[Telck]: Of protracted injury to the brain.

¶ 36 On redirect examination, the prosecutors asked Dr. Telck if

she stood by her assessment that Tina suffered serious bodily

injury and — over defense counsel’s objection — Dr. Telck

responded that she did.

16
¶ 37 The prosecution next called Dr. Yang, who testified that in

May 2020, Tina reported she was still persistently experiencing

migraine headaches, light sensitivity, imbalance, nausea, leg

numbness, and panic attacks. Dr. Yang opined that Tina’s

symptoms were consistent with post-concussive syndrome, which

she described as an impairment of the brain caused by the sheering

forces of a concussion that damage the brain’s nerve cells and

neurons.

¶ 38 Near the end of Dr. Yang’s direct testimony, the prosecutor

asked her to read the definition of serious bodily injury. The

prosecutor then asked Dr. Yang the following questions:

[Prosecutor]: [A]re you familiar with the term
“serious bodily injury”?

[Yang]: Yes.

[Prosecutor]: And did you learn about that
during the course of conversations preparing
for this case?

[Yang]: Yes, I did.

¶ 39 The prosecutor asked Dr. Yang to read the SBI form to herself

and to read the statutory definition of serious bodily injury to the

jury, again over defense counsel’s objection. After she read the

serious bodily injury definition from the form, the prosecutor asked:

17
[Prosecutor]: So based on that definition that
you became familiar with and your assessment
of [Tina], is it your medical opinion that [she]
suffered serious bodily injury?

[Defense counsel]: We would renew all prior
objections.

[The court]: Your objection has been noted and
it’s of record.

[Yang]: Yes, it is.

¶ 40 On redirect examination, the prosecutor asked Dr. Yang if it

was her medical opinion that Tina suffered serious bodily injury.

She answered “yes.”

B. Standard of Review

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

discretion. Campbell v. People, 2019 CO 66, ¶ 21. We will not

disturb the court’s decision absent a showing that it was manifestly

arbitrary, unreasonable, or unfair, or was based on a

misapprehension or misapplication of the law. People v. Elmarr,

2015 CO 53, ¶ 20. An appellate court may affirm a trial court’s

decision on any ground supported by the record, whether relied

upon or even considered by the trial court. People v. Dyer, 2019

COA 161, ¶ 39.

18
C. Applicable Law

¶ 42 Although an expert witness may provide testimony that

embraces an ultimate issue of fact, an expert may not simply tell

the jury what result to reach. People v. Gaffney, 769 P.2d 1081,

1087 (Colo. 1989); CRE 704 (“Testimony in the form of an opinion

or inference otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact.”).

Thus, an expert opinion is improper if it applies the facts of the case

to a particular legal standard in a way that tells the jury that the

legal standard has been satisfied. People in Interest of J.R., 2021

COA 81, ¶ 31. Moreover, it is improper for a witness to provide

opinion testimony concerning that law. People v. Prendergast, 87

P.3d 175, 182 (Colo. App. 2003).

¶ 43 Although experts may offer testimony that embraces an

ultimate issue to be decided by the trier of fact, they may not usurp

the jury’s role as fact finder in offering such testimony. People v.

Rector, 248 P.3d 1196, 1203 (Colo. 2011). In deciding whether

expert testimony crosses the line from a permissible comment on an

ultimate issue to usurpation of the jury’s role as fact finder, we

consider a number of factors, including whether

19
(1) the testimony was clarified on cross-
examination; (2) the expert’s testimony
expressed an opinion of the applicable law or
legal standards and thereby usurped the
function of the court; (3) the jury was properly
instructed on the law and that it could accept
or reject the expert’s opinion; and (4) the
expert opined that the defendant had
committed the crime or that there was a
particular likelihood that the defendant did so.

People v. Baker, 2021 CO 29, ¶ 32 (citing Rector, 248 P.3d at 1203).

D. Application

¶ 44 Pope contends that the trial court abused its discretion by

admitting Dr. Telck’s and Dr. Yang’s testimony about whether Tina

suffered serious bodily injury because it was extremely prejudicial,

exceeded the scope of proper opinion testimony by allowing them to

offer legal opinions rather than mere medical opinions, and

therefore, usurped the jury’s role as a fact finder.

¶ 45 As a threshold matter, we conclude that both Dr. Telck’s and

Dr. Yang’s testimony stepped beyond simple medical opinions and

into the realm of legal opinion. Indeed, they couched these opinions

after reading the legal definition of serious bodily injury and then

applying it to the specific facts of the case. That was improper legal

opinion testimony. See People v. Baker, 2019 COA 165, ¶ 21

20
(Expert testimony may be improper if “it assesses witness

testimony, indicates a belief in a particular version of the facts, and

then applies the law to those facts to make conclusions reserved for

the jury.”). Moreover, it was unnecessary because the jury could

have simply applied Dr. Telck’s and Dr. Yang’s respective medical

diagnoses to Tina’s condition and reached a conclusion about

whether Tina’s symptoms met the definition of serious bodily injury.

But we ultimately must ask whether the improper legal opinion

usurped the jury’s function. To assess this issue, we apply the

Rector factors.

¶ 46 The supreme court articulated the Rector factors as a means of

assessing whether a trial court abuses its discretion by permitting a

doctor to provide opinion testimony that a medical injury meets the

definition of a legal term. Rector, 248 P.3d at 1202-04 (assessing

whether a trial court abused its discretion by allowing a doctor to

testify that injuries met the definition of child abuse); see also

Lawrence v. People, 2021 CO 28, ¶¶ 37-57 (assessing whether a

trial court abused its discretion by allowing a securities

commissioner to opine that the defendant misrepresented material

facts involving the investment in a security).

21
¶ 47 A number of the Rector factors look to issues that occur during

or after the disputed testimony, such as whether the improper

opinion testimony was subject to meaningful cross-examination,

whether the court properly instructed the jury concerning the

substantive legal issues, the court’s paramount role in defining the

law, the jury’s paramount role in deciding the facts and applying

them to the law, and the jury’s ability to believe some, all, or none

of an expert witness’s testimony. Rector, 248 P.3d at 1203.

¶ 48 But trial courts must make their error assessment before

these events occur. Thus, it is a bit of an artifice to suggest that the

trial court’s assessment of admissibility, and our review of that

assessment, should be based on facts that are not known at the

time the trial court must decide whether to permit the opinions.

Rather, it appears that the Rector factors are more properly utilized

to assess whether the error associated with admitting improper

legal opinion testimony was harmless under the applicable

standard of reversal.

¶ 49 Nonetheless, because Rector and Lawrence articulate and

apply the four factors to assess whether the trial court abused its

22
discretion, we start by applying the Rector principles in this

manner.

¶ 50 As it relates to the first Rector factor — whether the testimony

was clarified on cross-examination — Pope’s counsel mitigated the

improper opinions by clarifying the distinction between a legal

opinion and a medical opinion. For example, during Dr. Telck’s

cross-examination, counsel elicited testimony that the SBI form was

created by law enforcement and was not a medical form. She also

testified that serious bodily injury was a legal term, not a medical

term of art. Pope’s counsel also elicited testimony from Dr. Telck

about the distinction between medical forms and legal forms by

discussing how Dr. Telck consulted with police officers and

prosecutors about the SBI form.

¶ 51 Pope’s counsel elicited testimony that similarly narrowed Dr.

Yang’s opinion on cross-examination. When asked, Dr. Yang

clarified that serious bodily injury is not a medical term of art and

that she is not a legal expert.

¶ 52 As to the second Rector factor — whether the expert testimony

improperly invaded the function of the court concerning the

meaning of serious bodily injury — we conclude for the reasons

23
stated previously that Dr. Telck’s and Dr. Yang’s testimony crossed

that line. But the improper testimony was significantly mitigated

because the trial court properly instructed jurors (1) on the

definition of serious bodily injury; (2) that they were the “sole judges

of credibility of each witness and the weight given to each witness’s

testimony”; (3) that they must follow the law as instructed; and (4)

that they were the ultimate authority as to whether Tina suffered

serious bodily injury. Moreover, Dr. Telck and Dr. Yang

appropriately provided the jury with the factual and medical basis

for their opinions about serious bodily injury. They both informed

the jury that Tina suffered long-term symptoms resulting from the

assault, including protracted loss of function of the brain — which

they both explained is an organ of the body. This testimony

provided the jury with the factual foundation and medical opinions

to independently assess the evidence and reach its own conclusions

about whether Tina suffered serious bodily injury in light of the

court’s instructions. Thus, although the experts’ opinions on

serious bodily injury improperly strayed into legal testimony, those

opinions did not usurp the function of the court or the jury.

24
¶ 53 Again, the more prudent practice would have been for the

prosecutor to limit Dr. Telck’s and Dr. Yang’s testimony to their

medical opinions. See Lawrence, ¶ 48 (“[W]e encourage trial judges

to assess, on a case-by-case basis, whether such testimony would

truly be helpful to the jury before allowing the jury to hear it.”).6

However, in looking at the record holistically and applying the error

analysis dictated by Rector, we conclude that the improper

testimony did not usurp the jury’s function. Rector, 248 P.3d at

1203. Therefore, the trial court did not abuse its discretion by

admitting the testimony. Id. at 1204.

¶ 54 But assuming that error exists, we conclude that the error was

harmless for many of the reasons previously articulated. It is true

6 In Lawrence, the supreme court warned prosecutors about the

propensity and impropriety of asking expert witnesses for improper
legal testimony. Lawrence v. People, 2021 CO 28, ¶ 44. Given the
unique privileges and duties prosecutors possess, it is difficult to
understand how this type of improper testimony is repeatedly
introduced. Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.
2005) (“The prosecutor must therefore scrupulously avoid
comments that could mislead or prejudice the jury. The
prosecutor’s actions during a criminal trial must always comport
with the sovereign's goal that justice be done in every case and not
necessarily that the prosecution ‘win.’”). Trial courts can and
should expect prosecutors to honor their professional obligation to
discontinue such practices.

25
that the central contention at trial was whether Tina suffered

serious bodily injury as a result of the assault. We also

acknowledge that the resolution of this dispute had critical

consequences — whether Pope faced sentencing on a misdemeanor

conviction versus a substantial prison sentence for conviction of a

class 4 felony. Nonetheless, when applying the Rector factors, we

cannot say that the error affected Pope’s substantial rights because

the testimony did not substantially influence the verdict or affect

the fairness of the trial. See Hagos v. People, 2012 CO 63, ¶ 12

(describing the nonconstitutional harmless error standard);

Lawrence, at ¶ 56 (applying nonconstitutional harmless error to

assess any error associated with the admission of improper legal

opinions).

¶ 55 The mechanical forces of this assault were largely undisputed

and brutal. Pope repeatedly pummeled Tina in the head, blows

which she compared to being struck with a jackhammer. Tina’s

symptomology was immediate and continued for many months.

Both Dr. Telck and Dr. Yang opined that these injuries were caused

by a concussion that created substantial risk of protracted loss or

impairment of the function of an organ of the body, namely Tina’s

26
brain. As previously discussed, both doctors also provided the jury

with the detailed factual and medical evidence that supported their

conclusions, thereby allowing the jury to independently assess the

evidence based on the court’s instructions.

¶ 56 The jury also received opinion testimony from Dr. Miller, a

neuropsychologist who Tina’s counsel called to discuss the varying

types of concussions and the risk of long-term symptoms a patient

may experience depending on the degree of concussion. Though

she had not examined Tina or spoken to her concerning her

symptoms, Dr. Miller examined her post-assault medical records

and reported symptoms. Dr. Miller also evaluated Tina’s past

medical diagnoses and the associated prescribed medications,

including their potential side effects. Ultimately, Dr. Miller

suggested that Tina’s post-assault symptoms were more consistent

with her past medical conditions and associated medications, not

any concussion resulting from the assault.

¶ 57 But Dr. Miller did not dispute that concussions create a

substantial risk of impairing the brain; nor did she dispute that the

associated brain injury may be protracted, depending on the

seriousness and length of the symptoms. So the central dispute at

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trial was not whether a concussion can result in serious bodily

injury. Rather, the central question was whether Tina’s protracted

symptoms were consistent with the concussive impact of the

assault or her past medical conditions. On this issue, Dr. Telck,

Dr. Yang, and Dr. Miller provided the jury with the necessary

information related to Tina’s pre-assault medical history to allow

the jury to assess these medical issues from a factual perspective

through the lens of the court’s jury instructions on the controlling

law.

¶ 58 And, as previously detailed, the court thoroughly and

accurately instructed the jurors that they alone determined the

facts of this case, they were free to accept or reject any testimony,

including the opinions of expert witnesses, and the court’s

instructions were the only proper source for the definition of serious

bodily injury. Finally, the jury also received the benefit of thorough

cross-examinations testing the veracity of Dr. Telck’s and Dr. Yang’s

testimony and the limits of their expertise and their opinions

concerning serious bodily injury.

¶ 59 In sum, the jury received the very types of remediating

instructions and evidence that the Rector factors contemplate as

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mitigating the impact of improper expert legal opinion. Given these

circumstances, we cannot say that the improper admission of Dr.

Telck’s and Dr. Yang’s testimony that Tina suffered serious bodily

injury substantially influenced the verdict or undermined the

fairness of the trial. Hagos, ¶ 12. Accordingly, any error in

admitting their opinions was harmless. See People v. Rock, 2017

CO 84, ¶ 22 (error is harmless unless “there is a reasonable

probability that it contributed to the defendant’s conviction”).

V. Confrontation Clause Claim

¶ 60 Finally, Pope contends that the trial court reversibly erred and

violated his rights under the Confrontation Clause by restricting his

counsel from cross-examining Tina about their pending marital

dissolution. We discern no error.

A. Additional Facts

¶ 61 In March 2020, Tina filed to dissolve their marriage after

Pope’s arrest. While Pope was incarcerated, Tina allegedly agreed to

hold off on dissolution proceedings, to retain control of Pope’s

personal property, and to manage his finances until his release in

exchange for being awarded their marital home. Tina’s dissolution

counsel mailed Pope a document that reflected this agreement. But

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Pope declined to sign the proposal. The People moved in limine to

prevent the defense from introducing evidence of the parties’

dissolution and related negotiations on the basis that it was

irrelevant and should be excluded under CRE 403 because the

probative value of the evidence was substantially outweighed by the

danger of unfair prejudice and could confuse the jury.

¶ 62 Defense counsel responded that granting the People’s motion

would violate Pope’s Sixth Amendment right to confrontation and

that he had a broad right to cross-examine Tina about her motive,

bias, and interest, including the financial benefit she stood to gain

from the marital dissolution and Pope’s incarceration.

¶ 63 The trial court agreed, over defense counsel’s objection, that

evidence of the dissolution proceedings was not relevant to Pope’s

criminal matter and even if the evidence was relevant, it was

properly excluded under CRE 403.

¶ 64 At the conclusion of the People’s evidence, defense counsel

objected again to the court’s finding and asked it to take judicial

notice of the dissolution proceedings on the basis that the

prosecution opened the door by leading the jury to believe that Tina

and Pope were still married. She reasoned that jurors may

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incorrectly conclude that Tina returned home to Pope and that

would confuse them. The trial court again denied defense counsel’s

motion after finding that the dissolution proceedings had no

relevance and that even if the evidence was relevant, the probative

value was substantially outweighed by the risk of prejudice or

confusion and therefore should also be excluded under CRE 403.

B. Standard of Review and Preservation

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

discretion. Campbell, ¶ 21. The parties dispute whether harmless

error or plain error applies. However, because we discern no abuse

of discretion, we need not decide which standard applies.

C. Applicable Law

¶ 66 “The Sixth Amendment right to confrontation and the Fifth

Amendment right to due process of law require only that the

accused be permitted to introduce all relevant and admissible

evidence.” Id. at ¶ 68 (quoting People v. Harris, 43 P.3d 221, 227

(Colo. 2002)). A Confrontation Clause violation may exist if a

defendant “was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on

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the part of the witness.” Kinney v. People, 187 P.3d 548, 559 (Colo.

2008) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).

¶ 67 However, a criminal defendant’s right to cross-examination is

not unlimited. CRE 611(b) (“Cross-examination should be limited

to the subject matter of the direct examination and matters

affecting the credibility of the witness.”). As it relates to the

intersection between the Confrontation Clause and cross-

examination, trial courts have wide latitude to place reasonable

limits on cross-examination due to concerns about “prejudice,

confusion of the issues, the witness’ safety, or interrogation which

is repetitive or only marginally relevant.” Merritt v. People, 842 P.2d

162, 166 (Colo. 1992) (quoting Delaware, 475 U.S. at 679).

¶ 68 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Relevant evidence may be excluded,

however, “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” CRE 403.

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D. Application

¶ 69 Pope contends that his assault charge and the impending

dissolution were intertwined because if the jury was aware that

Tina potentially had a financial incentive for Pope’s incarceration, it

may have evaluated her credibility differently. Thus, Pope contends

that the trial court’s ruling was an abuse of discretion because it

excessively limited his ability to effectively cross-examine Tina.

¶ 70 The People argue that the trial court did not abuse its

discretion by preventing Pope from bringing up evidence of the

marital dissolution because it was not relevant to whether Pope

caused Tina serious bodily injury. We agree.

¶ 71 As discussed, evidence is relevant if it has “any tendency” to

make a consequential fact “more or less probable.” CRE 401. The

marital dissolution had nothing to do with the criminal charges. It

is undisputed that Pope repeatedly struck Tina. The issue during

the trial was the extent of the harm caused. And Pope fails to show

how the dissolution proceedings, which Tina commenced months

after the assault, were relevant to Tina’s injuries. To the extent he

is arguing that their preliminary discussions about the allocation of

marital property gave Tina a motive to lie, that argument was

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foreclosed when Pope rejected the proposal. And Pope provides no

explanation how his incarceration would have otherwise impacted

the dissolution proceedings.

¶ 72 Thus, even if evidence related to the dissolution was

marginally relevant, the trial court correctly found that it should be

excluded under CRE 403 because it had significant potential to

needlessly confuse the jury and because its relevance was marginal

at best. It necessarily follows that the trial court did not abuse its

discretion because the limitation did not unreasonably limit Pope’s

right to cross-examine Tina.

VI. Disposition

¶ 73 The judgment is affirmed.

JUDGE TOW and JUDGE PAWAR concur.

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