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People v. Bowers.

2021 COA 41. No. 18CA1747.  Criminal Law—First Degree Assault—Strangulation—Extreme Indifference—Serious Bodily Injury—Expert Testimony—Prosecutorial Misconduct.

April 1, 2021

Defendant had an altercation with his girlfriend K.B. during which he strangled her; grabbed her arms, causing significant bruising; and headbutted her, causing a laceration above her eye. A jury found defendant guilty of first degree assault with extreme indifference.

On appeal, defendant contended that there was insufficient evidence of first degree assault because his conduct did not meet the definition of serious bodily injury under the relevant statutes. Here, defendant’s “conduct” was strangulation, and there was expert testimony that the strangulation and resulting constriction of K.B.’s carotid artery had placed her at a substantial risk of death. There was also photographic evidence of K.B.’s injuries. Moreover, the jury could reasonably infer from K.B.’s altered state and memory loss that her brain had been deprived of oxygen for a time. Viewing this evidence in the light most favorable to the prosecution, there was sufficient evidence to support a jury finding that K.B. suffered serious bodily injury.

Defendant also argued that reversal is required due to statements made by law enforcement witnesses at trial. Defendant did not object to the statements at trial. Defendant contended that two officers improperly offered expert testimony that K.B. was disoriented because she had been strangled. This testimony about their observations of the victim’s mental and physical condition at the hospital was not improper, but in any event, any error was harmless because it was cumulative of the physician’s testimony. And the testimony about the types of strangulations cases one officer observed was elicited by the defense and defense counsel did not object to the statement’s admission. Further, the investigator’s testimony about strangulation injuries and doctors’ frequency in signing serious bodily injury forms was also cumulative of other evidence. Accordingly, the district court did not abuse its discretion.

Defendant further contended that the prosecution engaged in misconduct throughout the trial. As to only the investigator, the prosecution’s examination was improper but does not warrant reversal. And as to the closing statement, the prosecution did not misstate the definition of reasonable doubt or the law on serious bodily injury, did not improperly refer to testimony, and did not improperly argue a cycle of violence theory because it was supported by the evidence.

Defendant also requested correction of the mittimus, which reflects that he pleaded guilty to first degree assault with extreme indifference.

The judgment of conviction was affirmed and the case was remanded for correction of the mittimus.

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

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