Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

People v. Duncan.

2023 COA 122. No. 22CA1114. Provisions Applicable to Offenses Generally—Definitions—Serious Bodily Injury—Protracted—Sufficiency of Evidence—Prosecutorial Misconduct.

December 21, 2023

Duncan and the victim, Phalen, were living together. They had an argument that escalated, and Duncan struck Phalen on the left side of her face, contacting her ear and knocking her down. Duncan then punched, kicked, and stomped on Phalen until she fought him off and escaped. As a result of Duncan’s attack, Phalen suffered a hole in her eardrum and temporary hearing loss. Duncan was charged with second-degree assault for causing serious bodily injury and was convicted as charged.

On appeal, Duncan contended that the jury had insufficient evidence to find that he caused Phalen an injury that carried a substantial risk of “protracted loss or impairment.” He argued that “protracted” means “permanent” and that the prosecution failed to present sufficient evidence that Phalen experienced a substantial risk of suffering permanent hearing loss from the hole in her eardrum. As relevant here, under CRS § 18-1-901(3)(p), serious bodily injury is “bodily injury that, either at the time of the actual injury or at a later time, involves . . . a substantial risk of protracted loss or impairment of the function of any part or organ of the body.” The court of appeals held that “protracted,” as used in this definition, means “prolonged, continued, or extended” but does not necessarily mean “permanent.” Here, (1) Phalen’s injury itself; (2) Phalen’s physician’s testimony that such an injury typically causes hearing loss, which usually resolves within four to eight weeks; and (3) Phalen’s testimony that she suffered hearing loss for five months constituted sufficient evidence to support the jury’s finding.

Duncan also argued that the definition of “serious bodily injury” is unconstitutionally vague, both facially and as applied, because the word “protracted” could mean an injury that extends for any period of time, from minutes to permanently. The court declined to address Duncan’s unpreserved as-applied claim because as-applied challenges ordinarily require development of a factual record, which is lacking here. The court also declined to consider Duncan’s unpreserved facial vagueness challenge, but stated that even if it were to review this claim, it would not discern plain error due to a lack of authority holding that the word “protracted” is unconstitutionally vague.

Duncan further asserted that the prosecutor committed misconduct during closing arguments when he (1) mischaracterized the definition of reasonable doubt and shifted the burden of proof to Duncan; (2) misled the jury about the meaning of “substantial risk”; and (3) misled the jury about the meaning of “protracted.” However, the prosecutor’s comments concerning reasonable doubt were not improper. Second, the prosecutor’s substantial risk comments were within the realm of reasonable inferences that may fairly be drawn from the evidence, and Duncan took most of the prosecutor’s statements that he identified out of context. Third, the prosecutor did not mislead the jurors by informing them that they could find serious bodily injury based on a risk of an impairment that was not permanent.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

Back to the From the Courts Page