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 April 19, 2018

No. 15CA0121, People v. Bryant — Evidence — Opinions and Expert Testimony — Testimony by Experts

A division of the court of appeals considers whether a police

officer’s testimony defining a street slang term for an illegal drug

constitutes lay or expert testimony under the test set forth in

Venalonzo v. People,

. The division concludes that the

testimony in this case was expert testimony.

When, as in this case, there is testimony defining a term that

is not likely to be known by someone with ordinary experiences and

knowledge, the testimony is expert testimony. Under the

circumstances here, the division concludes that the police officer’s

testimony defining the term “sherm” as “PCP” constituted expert

testimony and was, thus, inadmissible. Although the trial court erred by improperly admitting the

police officer’s testimony as lay testimony, the division further

concludes that the error was harmless.

The division also considers and rejects defendant’s arguments

that his statements to police were involuntary, that his Miranda

waiver was invalid, and that the trial court improperly instructed

the jury.

Accordingly, the division affirms the judgment of conviction. COLORADO COURT OF APPEALS

Court of Appeals No. 15CA0121 Arapahoe County District Court No. 14CR874 Honorable Elizabeth A. Weishaupl, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Durron Larry Bryant,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II Opinion by CHIEF JUDGE LOEB Davidson* and Márquez*, JJ., concur

Announced April 19, 2018

Cynthia H. Coffman, Attorney General, Christine Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jeffrey Svehla, 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. 2017. ¶1 Defendant, Durron Larry Bryant, appeals the judgment of

conviction entered on jury verdicts finding him guilty of unlawful

possession of a controlled substance and two counts of third degree

assault. We affirm.

I. Background and Procedural History

¶2 According to the prosecution’s evidence, in the late afternoon

on April 4, 2014, a woman called the police because she had seen

Bryant jumping up and down, cursing, and screaming near an

intersection in Aurora. Officers arrived just after Bryant struck a

male teenager in the back of the head and hit a female teenager on

the side of her face. After arresting Bryant, officers interviewed

eyewitnesses and conducted a field showup. The witnesses

identified Bryant as the man who had been acting erratically and as

the man involved in the altercation, and Officers Ortiz and Fink

transported Bryant to the Aurora jail.

¶3 Shortly after arriving at the jail, and approximately one hour

after Bryant was arrested, Officers Ortiz and Fink interviewed

Bryant in the booking room. Officer Ortiz read Bryant his rights

under Miranda v. Arizona,

(1966). He then asked

Bryant if he understood his rights, and Bryant said that he did.

1 Officer Ortiz asked Bryant if he would be willing to speak with

police, and Bryant said that he was willing to do so.

¶4 During the interview, Officer Ortiz asked Bryant if he was

under the influence of drugs or alcohol, and Bryant answered that

he was. When Officer Ortiz asked Bryant what substance he was

under the influence of, Bryant said that the substance was in his

sock and pointed to his ankle, telling the officers that they could

retrieve the substance. After the officers retrieved a small vial from

Bryant’s sock, Officer Ortiz asked Bryant what the substance was.

Bryant responded that the substance was “sherm.”

¶5 Officer Ortiz was not familiar with the term “sherm,” but

Officer Fink recognized it as a term meaning “PCP” or

phencyclidine. Officer Fink asked Bryant several times during the

interview if the substance was “PCP,” and Bryant eventually

responded that the substance was “PCP.” At trial, Officers Ortiz

and Fink testified to this exchange, and Officer Fink also testified

that, based on his training and experience, he knew that “sherm” is

a street slang word for “PCP.”

¶6 Bryant was charged with unlawful possession of a controlled

substance and two counts of third degree assault.

2 ¶7 Before trial, Bryant submitted several motions to suppress,

and the court held a two-day suppression hearing. As relevant

here, Bryant contended that his statements to police were

involuntary and that his Miranda waiver was invalid. Officers Ortiz

and Fink both testified at the suppression hearing, as did the two

teenagers who were assaulted and a witness to the assault. The

trial court denied all of Bryant’s motions to suppress, ruling that

Bryant’s statements were made voluntarily and that he had validly

waived his Miranda rights.

¶8 A jury convicted Bryant as charged, and he now appeals.

II. Suppression

¶9 Bryant contends that the trial court erred by ruling that his

statements to the police were voluntary and that he had validly

waived his Miranda rights. We are not persuaded.

A. Facts

¶ 10 The following facts were established at the suppression

hearing through testimony from Officers Ortiz and Fink.

¶ 11 On the day of Bryant’s arrest, Officers Ortiz and Fink were

originally dispatched to Bryant’s location to conduct a welfare check

on a man who was acting erratically in the middle of the street and

3 who was possibly under the influence of drugs. While Officers Ortiz

and Fink were on the way to Bryant’s location, however, they

received a further dispatch that the same individual who had been

acting erratically had possibly threatened and assaulted people at

the scene.

¶ 12 Upon arriving at the scene, Officers Ortiz and Fink saw a man

who matched the description given in the dispatch and who was

later identified as Bryant. They proceeded to approach Bryant, and

Officer Ortiz ordered Bryant to stop and speak with him. In

response, Bryant looked at Officers Ortiz and Fink and then began

to walk away. Officers Ortiz and Fink continued to approach

Bryant, and Officer Ortiz ordered Bryant to stop, turn around, and

interlock his fingers. Officer Ortiz gave Bryant several orders to do

this, but Bryant did not comply. Instead, Bryant put his hands up

and then down in response to Officer Ortiz’s commands, and then

he got down on the ground before standing back up. Finally, a

third officer on the scene ordered Bryant to sit back down on the

ground.

¶ 13 Officers Ortiz and Fink both testified that this was unusual

behavior and that Bryant did not seem to understand Officer Ortiz’s

4 commands. After arresting Bryant, they proceeded to interview

witnesses and conduct a field showup.

¶ 14 While Officers Ortiz and Fink were transporting Bryant to the

Aurora jail, Bryant repeatedly asked why he had been arrested, and

Officer Ortiz repeatedly explained to Bryant that he had assaulted

someone. Officer Ortiz described Bryant as acting in disbelief each

time he explained to him that he had assaulted someone. Officer

Ortiz also testified that Bryant asked why he had been arrested

approximately fifteen to twenty times, while Officer Fink estimated

that Bryant asked this question approximately five times.

¶ 15 Officer Ortiz further testified that he believed Bryant was

under the influence of drugs or alcohol because of his behavior;

Officer Fink testified that Bryant seemed to be coming off of a high.

Officers Ortiz and Fink both testified that Bryant’s demeanor

changed, however, by the time they arrived at the jail, and they

both described him as being calm and cooperative at the jail.

¶ 16 Officers Ortiz and Fink brought Bryant to a booking room

where Officer Ortiz read Bryant his Miranda rights from a pre-

prepared card issued by the Aurora Police Department, and Bryant

orally waived those rights. During the course of the interview,

5 Bryant admitted that he was under the influence of drugs, revealed

to Officers Ortiz and Fink that he had a small vial of drugs in his

sock, and identified the vial as containing “sherm,” which he later

admitted during the interview meant “PCP.” According to the

officers’ testimony, neither of them threatened or coerced Bryant in

any way, nor did they use physical force on Bryant.

B. Voluntariness

¶ 17 Bryant contends that his statements to the police at the jail

were involuntary and should have been suppressed, arguing that

the police exploited his intoxicated state during their interrogation

to elicit incriminating responses. We disagree.

1. Standard of Review and Applicable Law

¶ 18 When a trial court rules on a motion to suppress, it engages in

both factfinding and law application. People v. Platt,

(Colo. 2004). We will uphold a trial court’s findings of fact on

the voluntariness of a statement when the findings are supported

by adequate evidence in the record, but we review de novo a trial

court’s ultimate determination of whether a statement was

voluntary. Effland v. People,

(Colo. 2010).

6 ¶ 19 When reviewing a trial court’s suppression ruling, appellate

courts must only consider evidence presented at the suppression

hearing. Moody v. People,

(Colo. 2007). We

consider the “interrelationship between the evidentiary facts of

record, the findings of the trial court, and the applicable legal

standards.” People v. D.F.,

(Colo. 1997). We also

examine a trial court’s legal conclusions de novo under the totality

of the circumstances. People v. Triplett,

.

¶ 20 When a defendant seeks to suppress a confession or

inculpatory statement, the prosecution must establish by a

preponderance of the evidence that the confession or statement was

voluntary. People v. Gennings,

(Colo. 1991).

Under the Due Process Clauses of the United States and Colorado

Constitutions, a defendant’s statements must be made voluntarily

in order to be admissible into evidence. U.S. Const. amends. V,

XIV; Colo. Const. art. II, § 25; Mincey v. Arizona,

(1978); People v. Raffaelli,

(Colo. 1982).

¶ 21 A statement is voluntary made if it is “not ‘extracted by any

sort of threats or violence, nor obtained by any direct or implied

promises, however slight.’” People v. Mounts,

, 796

7 (Colo. 1990) (quoting People v. Pineda,

,

(1973)). The statement must be the product of an

essentially free and unconstrained choice by the maker.

¶ 22 “Critical to any finding of involuntariness is the existence of

coercive governmental conduct, either physical or mental, that

plays a significant role in inducing a confession or an inculpatory

statement.” People v. Valdez,

(Colo. 1998).

“While a defendant’s mental condition, by itself and apart from its

relationship to official coercion, does not resolve the issue of

constitutional voluntariness, the deliberate exploitation of a

person’s weakness by psychological intimidation can under some

circumstances constitute a form of governmental coercion that

renders a statement involuntary.” Gennings,

(citation omitted).

¶ 23 “[I]ntoxication alone does not automatically render statements

involuntary . . . .” People v. Martin,

(Colo. App.

2000). Rather, coercive government conduct is the “necessary

predicate to the finding that a confession is not ‘voluntary.’”

Colorado v. Connelly,

(1986).

8 ¶ 24 The voluntariness of a statement must be determined by a

consideration of the totality of the circumstances under which the

statement was made. Mounts,

. Our supreme court

has articulated several factors to consider when evaluating the

voluntariness of a statement in light of the totality of the

circumstances, including

whether the defendant was in custody or was free to leave and was aware of his situation; whether Miranda warnings were given prior to any interrogation and whether the defendant understood and waived his Miranda rights; whether the challenged statement was made during the course of an interrogation or instead was volunteered; whether any overt or implied threat or promise was directed to the defendant; the method and style employed by the interrogator in questioning the defendant and the length and place of the interrogation; and the defendant’s mental and physical condition immediately prior to and during the interrogation, as well as his educational background, employment status, and prior experience with law enforcement and the criminal justice system.

Valdez,

(quoting Gennings,

).

2. Analysis

¶ 25 We reject Bryant’s contention that his statements were

involuntary.

9 ¶ 26 After hearing testimony at the suppression hearing, the trial

court made an extensive and thorough oral ruling as to whether,

under the totality of the circumstances, Bryant’s statements to the

police had been the product of any coercive government conduct.

In doing so, the court considered Officer Ortiz’s and Officer Fink’s

testimony and outlined a number of factors relevant to its analysis.

The trial court found that

[Bryant] was in custody at the time that he made the statements at the station, that he was aware of his situation. He’d asked why he was being taken to the station and he was being booked. Miranda warnings were given prior to the interrogation. Both officers indicated that based on their observations of the defendant he understood what they were saying and responded appropriately to the questions, and in fact, I find that he did understand and waive his rights. He at no time indicated that he wanted to confer with counsel. The statements were made during interrogation . . . . The length . . . of the interrogation was short. No threats, either overt or implied, were made or directed towards the defendant. The defendant seemed to be coherent and calm and responding appropriately to the questions of the police . . . . [U]nder the totality of the circumstances, I find nothing that would render [Bryant’s] statements a product of undue influence, coercion, threat or in any way involuntary, so I deny the motion to

10 suppress the statements as involuntary as well.

¶ 27 We conclude that the following evidence, elicited at the

suppression hearing, supports the trial court’s findings regarding

the voluntariness of Bryant’s statements to police at the police

station:

 Bryant was given Miranda warnings prior to the

interrogation, and he understood and waived his rights.

 The interrogation lasted at most fifteen minutes.

 The interrogation occurred approximately one hour after

Officers Ortiz and Fink arrested Bryant, and Bryant’s

demeanor had changed during that time. Once at the

jail, Bryant was calm, coherent, and cooperative. He was

less repetitive than when he was in the car, and he

answered questions appropriately.

 There was no evidence of promises, threats, or physical

or emotional coercion.

¶ 28 Accordingly, we agree with the trial court that there was

“nothing that would render [Bryant’s] statements a product of

undue influence, coercion, threat or in any way involuntary.”

11 ¶ 29 Bryant’s reliance on People v. Humphrey,

(Colo.

2006), is misplaced. In Humphrey, the trial court ruled that some

of the defendant’s statements were involuntary due to psychological

coercion. The defendant in Humphrey was a teenager suspected of

stabbing another teenager and who was found “bleeding,

incoherent, and in need of medical attention.”

. She was

transported to the hospital, where her blood alcohol level was

measured as 0.104 at 3:24 a.m., and 0.090 at 4:27 a.m.

Nonetheless, her physician noted that she was “clinically sober” at

the time of her release, and she was questioned by police at

approximately 6 a.m.

¶ 30 The trial court in Humphrey “considered [the defendant’s]

physical, emotional, and psychological state at the time of the

interrogation but recognized that, alone, these circumstances did

not render her statements involuntary.”

. Rather, the

trial court’s finding of psychological coercion “rested upon the

circumstances of a discrete portion of the interview,” when she was

informed that the victim had died of his stab wounds and she

proceeded to have an emotional breakdown.

12 ¶ 31 The supreme court in Humphrey affirmed the trial court’s

suppression of the defendant’s statements made after being

informed of the victim’s death, but reversed as to the suppression of

her statements made before that disclosure.

The supreme court

concluded that it was only at the point that the defendant

experienced an emotional breakdown, when she “cried and broke

into uncontrollable sobbing” and “[h]er answers to the questions

thereafter were emotional reactions that were only partially

coherent,” that the continued police questioning became coercive.

¶ 32 By contrast, Bryant suffered no such emotional breakdown,

but was instead described by Officers Ortiz and Fink as being calm,

coherent, and cooperative. Moreover, the interview lasted no more

than fifteen minutes, and there was no evidence in the record from

the suppression hearing that Bryant’s demeanor changed at any

point during the interview itself, and no evidence of any

psychological coercion like that found in Humphrey.

¶ 33 In sum, we conclude that the trial court did not err by finding

that Bryant’s statements to the police were made voluntarily.

13 C. Waiver of Miranda Rights

¶ 34 Bryant also contends that his statements to the police should

have been suppressed because the police failed to obtain a valid

Miranda waiver. He argues that he was so intoxicated and confused

at the time he was advised of his Miranda rights that he did not

make a knowing and intelligent waiver of those rights. We are not

persuaded.

1. Standard of Review and Applicable Law

¶ 35 In reviewing a trial court’s ruling on a motion to suppress a

custodial statement and the validity of a Miranda waiver, we defer

to the trial court’s findings of fact if they are supported by

competent evidence in the record, but review the application of the

law to those facts de novo. Platt,

. We are limited

in our review to the evidence presented at the suppression hearing,

and examine the trial court’s legal conclusions under the totality of

the circumstances. Moody,

; Triplett, ¶ 28.

¶ 36 Police must give a suspect a Miranda advisement at the outset

of custodial interrogation.

. This advisement serves

to inform a suspect of his or her constitutional rights.

Upon

receiving a proper advisement, a suspect may waive those rights,

14 but, to be valid, the waiver must be voluntary, knowing, and

intelligent.

¶ 37 “A Miranda waiver is considered voluntary unless ‘coercive

governmental conduct — whether physical or psychological —

played a significant role in inducing the defendant to make the

confession or statement.’” Platt,

(quoting People v.

May,

(Colo. 1993)). A person makes a knowing

and intelligent waiver of his or her Miranda rights when he or she

has full awareness of the nature of the rights being abandoned and

the consequences of their abandonment. May,

.

¶ 38 “‘Intoxication will render a suspect’s waiver involuntary when

government conduct causes the intoxication’ or, if self-induced,

when ‘the suspect was so intoxicated that he or she could not have

made a knowing and intelligent waiver.’” People v. Clayton,

(Colo. 2009) (quoting Platt,

).

Whether a suspect’s mental faculties were diminished due to self-

induced intoxication, however, is not decisive of whether a Miranda

waiver was knowing and intelligent. Platt,

. Rather,

intoxication only invalidates an otherwise valid Miranda waiver if

the court finds by a preponderance of the evidence that the

15 defendant was so intoxicated as to be incapable of understanding

the nature of his or her rights and the ramifications of waiving

them.

¶ 39 When determining whether self-induced intoxication renders a

waiver unknowing or unintelligent, we consider several factors:

whether the defendant seemed oriented to his or her surroundings and situation; whether the defendant’s answers were responsive and appeared to be the product of a rational thought process; whether the defendant was able to appreciate the seriousness of his or her predicament, including the possibility of being incarcerated; whether the defendant had the foresight to attempt to deceive the police in hopes of avoiding prosecution; whether the defendant expressed remorse for his or her actions; and whether the defendant expressly stated that he or she understood their rights.

Id.1

2. Analysis

¶ 40 We reject Bryant’s contention that his Miranda waiver was not

knowing and intelligent. Although he argues that he was so

1 We recognize that many of these factors are also relevant in a review of whether a defendant’s statements were voluntary. Here, the trial court properly conducted two separate reviews, one for voluntariness and one for a valid Miranda waiver, and applied the correct test in each.

16 intoxicated and confused that he could not have been fully aware of

the nature of the rights he was waiving and the consequences of his

decision to waive them, the record supports the trial court’s finding

that he was not intoxicated at the time he waived his Miranda

rights.

¶ 41 In particular, the trial court found that Bryant was

“responding appropriately to booking questions,” and that he was

“calm, coherent, and responding to questions appropriately and was

not behaving in any way that would indicate that he was under the

influence of anything, although both of [the officers] thought he

might have been under the influence previously.” Moreover, the

trial court found that “[h]e did not indicate any confusion nor did

his behavior indicate that there was any confusion or that he was

suffering from any sort of impairment, which would render his

waiver of his Miranda rights invalid.”

¶ 42 Officers Ortiz’s and Fink’s testimony from the suppression

hearing supports the trial court’s findings, and no evidence was

presented at the hearing to contradict their testimony. In particular

their testimony revealed the following:

17  Approximately one hour had passed between the time

Bryant was arrested and when he arrived at the jail for

questioning.

 Bryant was oriented to his surroundings and situation

once he arrived at the jail.

 Bryant was cooperative, and his answers were responsive

and appeared to be the product of a rational thought

process.

 Bryant demonstrated that he appreciated the severity of

his predicament, including the possibility of being

incarcerated, when he asked whether possession of “PCP”

was a felony.

 Bryant expressly stated that he understood his rights.

See Platt,

(outlining factors to be considered when

considering how intoxication might affect a knowing and intelligent

Miranda waiver).

¶ 43 While the record shows that Bryant was incapable of following

instructions when he was arrested and that he was generally

confused as to the nature of his predicament while being

transported to the jail, Officers Ortiz and Fink both testified that

18 Bryant’s condition and demeanor had changed by the time he

arrived at the jail, approximately one hour from the time they

arrested him.

¶ 44 In that regard, while Officer Ortiz testified that he thought

Bryant was under the influence of drugs when they arrested him,

he also testified that

[Bryant’s] demeanor seemed to change from our initial contact to when we were at the jail. Also from as confused as he sounded in the car, at the jail he seemed to kind of soak it all in and was just more quiet and calm and less repetitive of his questions and answers.

¶ 45 Officer Fink testified that even before they arrived at the jail,

Bryant appeared to already be on the “down side of his [being]

under the influence” and was “on basically the sobriety part of

using something.”

¶ 46 Bryant argues, nonetheless, that his case is akin to People v.

Fordyce,

,

(1980), where the supreme

court affirmed the trial court’s finding that the defendant’s mental

state was sufficiently impaired due to morphine for her Miranda

19 waiver to have been involuntary.2 The facts of Fordyce, however,

are easily distinguished from the facts of the present case.

¶ 47 In Fordyce, the defendant was suffering from second and first

degree burns, was hospitalized and on morphine, and was

questioned while in the intensive care unit by detectives wearing

surgical garb.

,

. The defendant’s

treating doctor and nurse testified at the suppression hearing that

the defendant’s behavior appeared rational and that she seemed to

be oriented as to person, time, and place.

,

. Also at the suppression hearing, one of the detectives

testified that the defendant was responsive and seemed to

understand his questions.

¶ 48 The defendant in Fordyce, however, presented expert

testimony at the suppression hearing from a toxicologist who

testified that the defendant’s medical records “showed an average

2 Fordyce refers to the voluntariness of the suspect’s Miranda waiver, but, as discussed in People v. May,

(Colo. 1993), the voluntariness standard has since been more clearly defined as comprising two separate dimensions: “first is the presence or absence of coercion, which primarily concerns the effect of police conduct, and the second is the knowing and intelligent action on the part of the person being interrogated.”

.

20 reaction to an average dose of morphine”; that morphine “creates a

euphoria which takes away a patient’s perception of pain”; and that

“a patient may exhibit no outward signs of intoxication,” but

morphine nonetheless “takes away a patient’s perception of danger,

thereby lessening self-protective instincts.”

The expert in

Fordyce also testified at the hearing that morphine interferes with

short-term memory, and that the average person on morphine

would easily confuse a detective wearing surgical garb with medical

personnel. Id. at 156,

.

¶ 49 The supreme court thus explained summarily that “[t]he

toxicologist’s opinion based on reasonable medical probability was

that an average person under treatment with morphine would have

difficulty understanding a Miranda advisement and perceiving the

important effect of information given to the police.”

Concluding

that “the testimony of the treating doctor, nurse and detective that

the defendant’s behavior appeared rational [did] not conflict with

the toxicologist’s testimony describing morphine intoxication,” the

supreme court affirmed the trial court’s finding that the defendant’s

Miranda waiver was not voluntary.

,

.

21 ¶ 50 Here, Bryant argues that his Miranda waiver was invalid

because it was not made knowingly and intelligently. He does not

argue that his waiver was involuntary. Nonetheless, his reliance on

Fordyce is misplaced.

¶ 51 Unlike in Fordyce, there was no evidence adduced at the

suppression hearing, expert or otherwise, to support Bryant’s

contention that, despite testimony from Officers Ortiz and Fink to

the contrary, he was sufficiently intoxicated to be incapable of

giving a knowing and intelligent waiver of his Miranda rights.

Indeed, the only evidence presented at the suppression hearing

regarding Bryant’s intoxication was in relation to his behavior at the

time of his arrest and during the drive to the jail. As discussed

above, however, Officers Ortiz and Fink both testified that Bryant’s

demeanor changed between that time and when he was given his

Miranda advisement.

¶ 52 Accordingly, we defer to the trial court’s findings as supported

by the record and conclude that the court did not err by finding

that Bryant validly waived his Miranda rights.

22 III. Expert Police Testimony

¶ 53 Bryant contends that the trial court reversibly erred by

allowing Officer Fink to testify as a lay witness regarding the

meaning of the term “sherm.” He argues that Officer Fink’s

testimony constituted expert opinion testimony under CRE 702,

and that it was, therefore, improperly admitted under the guise of

lay opinion testimony under CRE 701. Bryant further argues that

this alleged error is reversible because Officer Fink’s testimony that

“sherm” was street slang for “PCP” was key testimony to prove that

he knowingly possessed a controlled substance.

¶ 54 We agree with Bryant that Officer Fink’s testimony constituted

expert opinion testimony. However, we conclude that the trial

court’s error in admitting his testimony was harmless.

A. Standard of Review and Applicable Law

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

discretion. Venalonzo v. People,

. The trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it applies the incorrect legal

standard. People v. Russell,

, aff’d,

.

23 ¶ 56 In this instance, whether the trial court abused its discretion

turns on whether Officer Fink’s testimony was improper under CRE

701, which governs the admission of opinion testimony by a lay

witness. Under CRE 701, a lay witness’ testimony is limited to

“opinions or inferences” that are “(a) rationally based on the

perception of the witness, (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in issue, and (c)

not based on scientific, technical, or other specialized knowledge

within the scope of [CRE] 702.”

¶ 57 CRE 702 governs the admission of expert opinion testimony

and states that “[i]f scientific, technical, or other specialized

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

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

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

thereto in the form of an opinion or otherwise.”

¶ 58 In determining whether testimony constitutes lay opinion

testimony under CRE 701 or expert opinion testimony under CRE

702, a court must look to the basis for the witness’ opinion.

Venalonzo, ¶ 22. In particular, a court must look to “the nature of

the experiences that could form the opinion’s basis” rather than

24 simply asking whether a witness draws on his or her personal

experiences to inform the testimony. Id.; see People v. Veren,

(Colo. App. 2005).

¶ 59 In making that determination, a court should consider

“whether ordinary citizens can be expected to have known the

information or have had the experiences that form the basis of the

opinion.” People v. Ramos,

, aff’d,

.

“If the witness provides testimony that could be expected to be

based on an ordinary person’s experiences or knowledge, then the

witness is offering lay testimony.” Venalonzo, ¶ 23. Expert

testimony, by contrast, goes beyond the realm of common

experience. “If . . . the witness provides testimony that could not be

offered without specialized experiences, knowledge, or training, then

the witness is offering expert testimony.”

¶ 60 Police officers may testify as lay witnesses “based on their

perceptions and experiences,” People v. Stewart,

(Colo. 2002), but “[w]here an officer’s testimony is based not only on

his or her perceptions, observations, and experiences, but also on

the officer’s specialized training or education, the officer must be

25 properly qualified as an expert before offering testimony that

amounts to expert testimony.” Veren,

.

¶ 61 Where, as here, the issue is preserved and nonconstitutional,

we will review any error for harmless error. Venalonzo, ¶ 48. We

will only reverse under a harmless error review if the error “affects

the substantial rights of the parties.” Hagos v. People,

,

¶ 12. An error affects a party’s substantial rights when it

“substantially influenced the verdict or affected the fairness of the

trial proceedings.” Id. (quoting Tevlin v. People,

(Colo. 1986)).

B. Analysis

1. Lay or Expert Testimony

¶ 62 First, for the reasons below, we conclude that Officer Fink’s

testimony as to the meaning of the term “sherm” was expert opinion

testimony, improperly admitted as lay testimony under CRE 701.

¶ 63 Bryant objected to Officer Fink’s testimony on the meaning of

the slang term “sherm” at trial, and the court overruled his

objection. This testimony relied on Officer Fink’s specialized

training and experience as a police officer who had worked for

fourteen years as an officer at both the Aurora Police Department

26 and the Los Angeles Police Department. Accordingly, he should

have been disclosed and qualified as an expert witness, and it was

error to admit his testimony under the guise of lay opinion.

¶ 64 A hallmark of expert testimony by law enforcement officers is

that an officer testifies as to his extensive experience in the field.

So are the prosecutor advising the court that the witness is

testifying based on his training and experience, and the officer

testifying not based on personal knowledge or investigation of the

case. See Ramos, ¶ 18.

¶ 65 Here, the prosecutor prefaced his inquiry of Officer Fink with

questions expressly related to his training and experience, and he

emphasized that his testimony was based on that training and

experience:

Q Okay. Now, Officer Fink, you’ve indicated you have been an officer for approximately nine years; is that correct? A 15 total – or 14 total. Q Nine years with the Aurora Police Department? A Yes. Q And you had prior law enforcement experience before coming to Aurora? A Yes, sir. Q Where was that at? A Los Angeles Police Department.

27 Q Now, Officer Fink, have you heard the term “sherm” before? A Yes, sir. Q Okay. Have you heard the term “sherm” related in the context to drugs? A Yes. Q Okay. Where have you heard this term before? A Through my training and experience. “Sherm” is the street slang for PCP. Q So through your experience, you’ve heard “sherm” being used as, I guess, a lay term for the drug PCP? A Yes.

(Emphasis added.)

¶ 66 Moreover, Officer Fink’s testimony that “sherm” is street slang

for “PCP” was not based on his personal knowledge or investigation

of Bryant’s case, but was instead based on his training and

experience as a police officer. We find it instructive that Officer

Ortiz, who was a new officer in the field training program, did not

know that “sherm” meant “PCP,” but his training officer (Officer

Fink) did know the meaning of that term based on his own

specialized training and experiences.

¶ 67 Expert testimony, by definition, “goes beyond the realm of

common experience and requires experience, skills, or knowledge

that the ordinary person would not have.” Venalonzo, ¶ 22. In our

28 view, an ordinary person would not have the experience, skills, or

knowledge to be able to define “sherm” as meaning “PCP.”

¶ 68 Contrary to the People’s argument, it is not enough that the

ordinary person would be familiar with the concept of slang words,

or that the ordinary person would know that slang terms exist for

drugs. Rather, the key to Officer Fink’s testimony, which rendered

it expert in nature, was that he was able to identify a particular

slang term not used in the common vernacular as meaning a

particular drug.

¶ 69 We are aware of only one Colorado appellate opinion that has

discussed the meaning of street slang terms. In People v. Glover,

, a detective testified as to the meaning of several

terms of street slang. In that case, however, the terms at issue were

used on Facebook and did not involve the names of any illegal

substances. Instead, the detective in Glover explained that “‘fam’

meant the street family, ‘wea at’ meant ‘we are at,’ ‘he bitched out’

meant that the person ran away, and ‘we still havin 5’ was a

reference to a meeting somewhere to talk.” ¶ 46. The division in

Glover reasoned that the meaning of these slang terms could be

determined “‘from a process of reasoning familiar in everyday life,’

29 rather than ‘a process of reasoning which can be mastered only by

specialists in the field.’” ¶ 53 (quoting People v. Rincon,

(Colo. App. 2005)).3

¶ 70 As more recently clarified by our supreme court in Venalonzo,

however, the test for whether testimony is expert or lay rests on the

“nature of the experiences that could form the opinion’s basis”

rather than the “process of reasoning.” ¶ 22. The terms discussed

in Glover closely resemble the words they stand for, are phonetically

indicative of the meaning, or are otherwise used frequently enough

in the common vernacular so that their meaning would be evident

to someone with ordinary experiences and knowledge. By contrast,

the word “sherm” is not a word that is likely to be known by

someone with ordinary experiences and knowledge.

¶ 71 To be sure, there are some drug-related slang terms that an

ordinary person would know because those terms have entered the

common vernacular through music, television, radio, film, etc.

Terms such as “pot” or “crack” would be recognized and identified

3When discussing “a process of reasoning which can be mastered only by specialists in the field,” People v. Rincon relied in part on the advisory committee note to Fed. R. Evid. 701.

, 982- 83 (Colo. App. 2005).

30 based on an ordinary person’s everyday experiences and knowledge.

See State v. Hyman,

(N.J. Super. Ct. App. Div.

2017) (“Some [drug culture slang or code] words may have entered

the popular lexicon as a result of music, film, and other aspects of

modern culture, obviating the need for opinion testimony.”).

¶ 72 “Sherm,” on the other hand, falls into the category of drug-

related slang that has yet to enter the common vernacular and

would only be known by someone with intimate knowledge of drug

culture or who has participated in the drug trade. Thus, Officer

Fink’s definition of “sherm” at trial fell squarely into the realm of

expert testimony.

¶ 73 We note that other jurisdictions have likewise determined that

the act of defining drug-related slang is expert rather than lay

testimony. See United States v. Smith,

(D.C. Cir.

2011) (ruling that an FBI agent’s testimony at trial defining drug-

related slang constituted expert testimony); Hyman,

(ruling that a detective’s testimony at trial defining drug-

related slang and code words constituted expert testimony); see also

United States v. Garcia,

, 139 n.9 (2d Cir. 2002) (“If [a

drug dealer] offered his opinion on the allegedly coded conversation

31 and [the defendant’s] knowledge based on his ‘past experiences in

drug dealing,’ his opinion was not based on his perception of the

situation as a participant in it” and therefore constituted expert

testimony.); United States v. Peoples,

(8th Cir.

2001) (noting that law enforcement officers are often qualified as

experts to interpret intercepted conversations using slang, street

language, and the jargon of the illegal drug trade).

2. Harmless Error

¶ 74 However, while we conclude that the trial court erred in

allowing Officer Fink to testify as a lay witness as to the meaning of

“sherm,” we also conclude that the error was harmless. See People

v. Froehler,

.

¶ 75 Bryant argues that Officer Fink’s testimony that “sherm”

means “PCP” was key testimony relied upon by the prosecution to

prove that Bryant knowingly possessed a controlled substance. A

review of the record, however, suggests otherwise.

¶ 76 The question before us is whether the erroneous admission of

Officer Fink’s testimony at trial that “‘[s]herm’ is the street slang for

PCP” was harmless. Contrary to Bryant’s arguments, we fail to see

how this testimony could have been a key factor in establishing

32 Bryant’s knowledge that the substance he possessed was “PCP.”

See, e.g., id. at ¶ 40 (noting that evidence about computer software

used to search the defendant’s home computers had no direct

bearing on whether the defendant “knowingly possessed” child

pornography on a flash drive).

¶ 77 At best, Officer Fink’s testimony was cumulative of other

evidence presented at trial that served to prove the “knowingly”

element of the possession charge, see id. at ¶¶ 41-42, including the

fact that Bryant admitted during interrogation that the substance

he volunteered to Officers Ortiz and Fink, and which he initially

identified as “sherm,” was “PCP,” and that a chemical analysis

conducted on that same substance proved that the substance was

indeed “PCP.”

¶ 78 Officer Fink’s testimony is therefore easily distinguished from

testimony whose admission was deemed not harmless in other

cases. In Veren, two officers gave lay opinion testimony “that

possession of large amounts of pseudoephedrine in combination

with the other chemicals and supplies found in defendant’s truck

indicated an intent to manufacture methamphetamine.” 140 P.3d

at 139. A division of this court determined that “the two officers

33 were essentially allowed to give expert testimony under the guise of

lay opinions,” and that such testimony was key testimony proving

that “the items found in defendant’s truck were precursors and

materials used in the manufacture of methamphetamine.” Id. at

140. Because the challenged evidence in that case was not

cumulative of other properly admitted evidence, the division

concluded that admission of the officers’ opinion testimony was not

harmless. Id.

¶ 79 We are likewise unpersuaded by Bryant’s conclusory

argument that the erroneous admission of Officer Fink’s testimony

prevented him from presenting his own expert witness to rebut

Officer Fink’s testimony. We fail to see, and Bryant has not

identified, what kind of expert testimony could have been offered to

rebut the simple definition by Officer Fink that “sherm” is “PCP,”

and we also do not perceive how any potential rebuttal could have

negated the evidence otherwise properly admitted that Bryant

knowingly possessed “PCP.” See Froehler, ¶ 43.

¶ 80 Additionally, we note that the majority of Officer Fink’s

testimony was proper under CRE 701 as lay opinion testimony,

34 including his observations and inferences about Bryant’s behavior

prior to his arrest and during the interrogation.

¶ 81 Considering all of the above, we conclude that Officer Fink’s

testimony that “sherm” means “PCP” did not have a substantial

influence on the verdict or impair the fairness of the trial.

Accordingly, the error was harmless and thus not reversible. See

Stewart,

(“A ruling admitting or excluding evidence

is not reversible unless the ruling affects a substantial right of the

party against whom the ruling is made.”); Froehler, ¶ 44.

IV. Jury Instructions

¶ 82 Bryant contends that the trial court erred by instructing the

jury that voluntary intoxication was an invalid defense to the

charged crimes, arguing that the instruction was superfluous and

unrelated to the issues in controversy. He also contends that the

trial court erred by rejecting his tendered mens rea jury instruction,

arguing that the instruction given instead did not provide the jury

with the full and accurate definition of what the prosecutor had to

prove relating to culpable mental state. Finally, Bryant contends

that these errors, both individually and cumulatively, mandate

reversal. We disagree.

35 A. Standard of Review and Applicable Law

¶ 83 A trial court has a duty to correctly instruct the jury on the

governing law, properly, plainly, and accurately, but it has broad

discretion over the form and style of the instructions so long as they

are correct statements of the law. People v. Pahl,

(Colo. App. 2006). “The trial court should instruct the jury on a

principle of law when there is some evidence to support the

instruction.” People v. Montoya,

(Colo. App.

1996). A trial court should not, however, instruct the jury on an

abstract principle of law unrelated to the issues in controversy.

.

¶ 84 “While the court is duty-bound to instruct the jury, ‘it is

equally the duty of counsel to assist the court by objection to

erroneous instructions, and by the tender of instructions covering

matters omitted by the court.’” Stewart,

(quoting

Fresquez v. People,

,

(Colo.

1972)).

¶ 85 We review jury instructions de novo to determine whether they

accurately informed the jury of the governing law, but we review

questions of form and style for an abuse of discretion. Townsend v.

36 People,

(Colo. 2011). Whether additional jury

instructions may be given is also a matter committed to the sound

discretion of the trial court. People v. Burke,

(Colo. App. 1996). If the instructions, taken as a whole, properly

instructed the jury on the governing law, there is no error. People v.

Merklin,

(Colo. App. 2003).

¶ 86 Under Colorado law, we often find no error, or no reversible

error, where a trial court gave a superfluous instruction to the jury.

See, e.g., People v. Weeks,

(not plain error to

include superfluous elements in instruction); People v. Ujaama,

(not plain error to include superfluous

instructions); People v. Manzanares,

(Colo.

App. 1996) (error was harmless where superfluous instruction

given); People v. Baca,

(Colo. App. 1992)

(inclusion of an unnecessary instruction was not reversible error);

Kaesik v. John E. Mitchell Co.,

, 231,

, 873 (1971) (not error to give superfluous instruction), aff’d,

,

(1973) (per curiam).

¶ 87 Instructional error occurs where an instruction misleads or

confuses the jury. Williams v. Chrysler Ins. Co.,

,

37 1377 (Colo. App. 1996). “But, language in a jury instruction cannot

be a ground for reversal unless it prejudices a party’s substantial

rights.”

.

B. Analysis

1. Intoxication Instruction

¶ 88 At trial, the prosecutor requested a four-paragraph jury

instruction explaining that voluntary intoxication was not a valid

defense to any of the charged crimes. Bryant objected to the

entirety of the requested instruction, but stated that if the trial

court was inclined to give an instruction on the invalidity of such a

defense, the instruction should be limited to the first two sentences

of the prosecution’s tendered instruction.

¶ 89 The trial court overruled Bryant’s objection, but limited the

instruction to the jury, using only the first two sentences of the

prosecution’s instruction, which stated, “Voluntary Intoxication is

not a defense to the charge of Possession of a Scheduled [sic] I/II

Controlled Substance. Voluntary Intoxication is not a defense to

the charge of Assault in the Third Degree.”

¶ 90 Although Bryant did not argue a defense based on voluntary

intoxication, he did base his defense on the theory that he did not

38 possess the requisite culpable mental state to commit the charged

crimes, in large part because of his intoxication. Indeed, Bryant

repeatedly argued at trial that he was intoxicated at the time of his

arrest, and thus was incapable of forming the requisite mental state

to be guilty of knowingly possessing a controlled substance and

assaulting two individuals.

¶ 91 Under these circumstances, we conclude that the instruction

that voluntary intoxication was not a valid defense to the charged

crimes did not constitute error. In all likelihood, the instruction

served to prevent any confusion for the jury in its determination of

whether Bryant possessed the culpable mental state required for a

guilty verdict. Accordingly, the instruction did not contain “abstract

legal principles unrelated to the issues in controversy.” Montoya,

.

¶ 92 Thus, we conclude that the inclusion of this instruction, even

if superfluous, could not have confused the jury, especially because

it was very brief and contained a correct statement of the law. See,

e.g., Kaesik,

, 492 P.2d at 873.

¶ 93 Accordingly, under these circumstances, the inclusion of this

instruction did not amount to error, let alone reversible error.

39 2. Mens Rea Instruction

¶ 94 At trial, Bryant also argued that the jury should consider his

education and cognitive impairments, or lack of impairments, when

determining whether he possessed the requisite mental state to

commit the charged crimes. He therefore asked the trial court to

use the following mens rea instruction, taken from People v.

Heywood,

, which quotes Oram v. People,

(Colo. 2011):

The mental state of “knowingly” is a subjective, rather than an objective, standard and does not include a reasonable care standard. Therefore, circumstances where a defendant may reasonably be aware that his conduct is of such a nature or that such circumstances exist are insufficient to fulfill the knowingly mental state.

¶ 95 The prosecutor objected to Bryant’s tendered mens rea

instruction, arguing that it was confusing and that the trial court

had already provided a proper instruction on culpable mental state.

Additionally, the prosecutor argued that the tendered instruction

was contrary to the law on voluntary intoxication, citing

Hendershott v. People,

(Colo. 1982).

40 ¶ 96 The pattern instruction on mens rea given at trial stated, as

relevant here, as follows:

A person acts “knowingly” with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such a circumstance exists. A person acts “knowingly” with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result.

(Emphasis added.)

¶ 97 On appeal, Bryant contends that the pattern instruction “did

not give the jury a full and accurate definition of what the

prosecutor must prove relating to [Bryant’s] culpable mental state,”

arguing that the instruction did not accurately inform the jury that

“knowingly” is a subjective standard. To the extent that Bryant

argues that the pattern instruction is legally inaccurate, however,

we disagree.

¶ 98 By its plain language, the pattern instruction clearly directs

the jury to apply a subjective test, stating that a person acts

“knowingly” only “when he is aware that his conduct is of such

nature of that such a circumstance exists” or “when he is aware

that his conduct is practically certain to cause the result.”

41 (Emphasis added.) The instruction thus plainly directed the jurors

to consider whether Bryant acted knowingly, and in no way

suggested that they should apply an objective or reasonable person

test.

¶ 99 Bryant points to language from Heywood and Oram in arguing

that his tendered instruction should have been used instead of the

applicable pattern instruction, but neither of those cases discusses

the mental state of “knowingly” in terms of how a trial court should

instruct a jury, and neither case required that its language be used

when instructing future juries. Rather, it is well established that

“[a] district court has substantial discretion in formulating the jury

instructions, so long as they are correct statements of the law and

fairly and adequately cover the issues presented.” People v. Romero,

(Colo. App. 2008).

¶ 100 Here, the instruction given by the court was legally correct and

adequately informed the jury to apply a subjective standard rather

than an objective standard. Accordingly, the trial court did not err

by providing the applicable mens rea pattern instruction, nor did it

err by denying Bryant’s tendered instruction. See People v. Inman,

(Colo. App. 1997) (“[A] trial court may properly

42 refuse an instruction which merely restates points already

encompassed in other instructions given to the jury . . . .”).

¶ 101 Because we conclude that there was no error in the manner in

which the trial court instructed the jury, we necessarily reject

Bryant’s contention that reversal is mandated based on cumulative

error.

V. Conclusion

¶ 102 The judgment is affirmed.

JUDGE DAVIDSON and JUDGE MÁRQUEZ concur.

43