Peo v. Bauereiss

22CA1724 Peo v Bauereiss 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1724
City and County of Denver District Court No. 21CR5088
Honorable Adam J. Espinosa, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip L. Bauereiss,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE TOW
Lum and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Phillip L. Bauereiss, appeals the judgment of

conviction entered on a jury verdict finding him guilty of assault in

the second degree (restrict breathing) and obstruction of telephone

service. We reverse and remand for a new trial.

I. Background

¶2 At trial, the prosecution introduced the following evidence.

¶3 Bauereiss was engaged in a heated discussion with his wife,

Patricia Arce, in their home. At one point during the discussion,

Bauereiss took a dog leash, wrapped it around Arce’s neck, and

began to pull on both ends of the leash. Before Bauereiss started to

tighten the leash, Arce placed one of her hands between the leash

and her neck, thereby preventing her breathing from being

impaired. Arce asked Bauereiss to stop and he did. Bauereiss took

Arce’s cell phone out of her hand, and they continued talking.

¶4 Eventually, Bauereiss stepped out of the room and Arce

attempted to flee through their front doorway. Bauereiss came up

behind Arce, pulled her away from the door, and threw her onto the

couch. Bauereiss then placed a pillow over Arce’s face and began

smothering her. Arce flailed her arms and legs in an attempt to get

away and after a brief period was able to turn her head sideways to

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breathe. Bauereiss removed the pillow from Arce’s face, and they

continued talking. After a few minutes, Bauereiss placed the pillow

back over Arce’s face. She once again flailed her arms and legs and

Bauereiss removed the pillow.

¶5 Bauereiss then went to make a call in their basement. Before

he went downstairs, Bauereiss returned Arce’s cell phone to her.

Arce left the house and went down the street to a grocery store.

Arce contacted a friend, Amber Still, and asked for a ride. Arce also

called 911, and two police officers, Officer Kimberly Blanchard and

Officer Margaret Barnes, arrived to take Arce’s statement. The

officers then went to the couple’s home and arrested Bauereiss.

¶6 The prosecution charged Bauereiss with two counts (counts

one and two) of assault in the second degree (restrict breathing) and

one count of obstruction of telephone or telegraph service. Count

one addressed Bauereiss’s alleged strangulation of Arce with the

dog leash. Count two addressed Bauereiss’s alleged smothering of

Arce with the pillow.

¶7 During the three-day jury trial, the prosecution called Still to

testify about her call with Arce after the alleged assault. The

prosecution also called Michelle Metz as an expert witness in

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strangulation. Metz testified about the mechanics of strangulation,

how strangulation differed from smothering, and the potential

injuries associated with strangulation. The prosecution called

Barnes as its last witness. Barnes testified about arriving on the

scene to take Arce’s statement and the subsequent arrest of

Bauereiss at the couple’s residence.

¶8 A jury found Bauereiss guilty of assault in the second degree

on count two and obstruction of telephone service. The jury

acquitted Bauereiss of assault in the second degree on count one.

The district court sentenced Bauereiss to two years of probation on

each count, to be served concurrently.

II. Admission of Metz’s Testimony

¶9 Bauereiss argues the trial court erred in admitting Metz’s

testimony about the potential long-term effects of strangulation.

We agree.

A. Standard of Review and Applicable Law

¶ 10 “We review a trial court’s evidentiary rulings, including the

admission of expert testimony, for an abuse of discretion.” People v.

Martinez, 2020 COA 141, ¶ 61. “A trial court abuses its discretion

when its ruling is manifestly arbitrary, unreasonable, or unfair, or

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when it misapplies the law.” Id. (quoting People v. Williams, 2019

COA 32, ¶ 21).

¶ 11 We review preserved, nonconstitutional trial errors for

harmless error. Hagos v. People, 2012 CO 63, ¶ 12. Under

harmless error review, “reversal is required only if the error affects

the substantial rights of the parties.” Id. An error affects a party’s

substantial rights if it “substantially influenced the verdict or

affected the fairness of the trial proceedings.” Id. (quoting Tevlin v.

People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 12 CRE 702 governs the admission of expert testimony. “Expert

testimony admissible under CRE 702 must be both relevant and

reliable.” People v. Davis, 2012 COA 56, ¶ 42. And prior to the

admission of expert testimony, the trial court must conduct a

Shreck analysis, “which requires that: (1) the scientific principles

underlying the testimony are reasonably reliable; (2) the expert is

qualified to opine on such matters; (3) the expert testimony will be

helpful to the jury; and (4) the evidence satisfies CRE 403.” People

v. Rector, 248 P.3d 1196, 1200 (Colo. 2011); People v. Shreck, 22

P.3d 68, 77-79 (Colo. 2001). Relevant evidence may still be

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excluded “if its probative value is substantially outweighed by the

danger of unfair prejudice.” CRE 403.

B. Analysis

1. Preservation

¶ 13 The parties disagree as to whether this issue is preserved. The

trial court held a Shreck hearing regarding Metz’s testimony.

During the hearing, defense counsel objected to Metz’s satisfaction

of the first and third Shreck prongs and argued that Metz’s

testimony was not reliably based on valid scientific principles and

her proffered statements were not helpful to the jury because they

did not fit the case. At the conclusion of the Shreck hearing, the

trial court found that Metz’s testimony was reasonably reliable, that

Metz was qualified to offer such testimony, that her testimony

would be helpful to the jury, and that the probative nature of her

testimony was not outweighed by unfair prejudice. Because

defense counsel alerted the trial court to its concerns regarding the

scientific reliability and fit of Metz’s testimony, we find this issue is

preserved. People v. Tallent, 2021 CO 68, ¶ 12 (“To preserve a

claim, a party must make an objection ‘specific enough to draw the

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trial court’s attention to the asserted error.’” (quoting Martinez v.

People, 2015 CO 16, ¶ 14)).

2. Potential Injuries Testimony

¶ 14 Bauereiss argues Metz’s testimony about potential

injuries — both physical and psychological — that could result from

strangulation was inadmissible because it did not fit the facts of the

case and was therefore unhelpful to the jury. Specifically,

Bauereiss argues that “[t]he prosecution failed to identify a proper

purpose for the testimony,” that “there was no evidence . . . Arce

experienced any of these conditions,” and that the testimony “did

not make . . . Bauereiss’s guilt any more or less likely.”

¶ 15 The People counter that “Metz distinguished strangulation

from smothering,” and because Bauereiss was ultimately acquitted

of count one — which was the only count involving

strangulation — any error in admitting evidence about potential

strangulation injuries is moot. The People similarly contend that

any error is harmless because “[n]either the prosecutor nor Metz

connected the challenged consequences to smothering,” and “[i]n

this context, the jury was unlikely to understand this testimony as

explaining the consequences of smothering.”

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¶ 16 True, Metz initially differentiated the act of strangulation from

the act of smothering. And, at first, Metz referred only to the act of

strangulation, as opposed to smothering, when describing potential

injuries that could arise in the aftermath of strangulation.

However, the prosecutor eliminated this point of separation in her

own direct examination. After Metz described potential injuries that

could result from strangulation, the prosecutor asked whether “that

was the same with different . . . methods of strangulation, as in

ligature, manual, and smothering.” Metz responded that “any

mechanism of injury . . . can do the same types of things.” Thus,

the prosecutor explicitly tied the effects of strangulation Metz had

described to the act of smothering as well.

¶ 17 Because the jury could have heard Metz’s testimony to be

equally applicable to strangulation and smothering, we conclude

that the fact that the jury acquitted Bauereiss on the strangulation

count does not render the issue moot.

¶ 18 And the admission of this aspect of Metz’s testimony was

improper. Arce did not suffer from any of the potential injuries

Metz testified about. Nor did the prosecution have to prove that any

of the supposed injuries occurred as part of the elements for count

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one or count two. Thus, Metz presented testimony about unrelated

long-term issues that could potentially arise from Bauereiss’s

alleged conduct. Because this evidence did not fit the facts of the

case, it did not make any fact of consequence more or less likely.

People v. Martinez, 74 P.3d 316, 323 (Colo. 2003) (“Fit demands

more than simple relevance; it requires that there be a logical

relation between the proffered testimony and the factual issues

involved in the litigation.”). In other words, it was irrelevant.

¶ 19 And, for reasons similar to those underlying our rejection of

the People’s mootness argument, we cannot say the admission of

this evidence was harmless. In particular, Metz’s testimony about

the potential psychological effects of strangulation, including PTSD,

was harmful. Because the prosecution offered no evidence that

Arce suffered from PTSD or any other psychological issue in the

aftermath of the alleged assaults, this evidence could only serve to

create sympathy for Arce and a speculative concern in the jury’s

collective mind about future risks Arce might face. Thus, we cannot

say there is no reasonable probability that this improper evidence

contributed to the verdict. See People v. Yachik, 2020 COA 100,

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¶ 42 (holding the prosecutor’s use of evidence to appeal to the

jurors’ emotions was not harmless).

¶ 20 Bauereiss raises several other issues involving claimed

evidentiary errors and prosecutorial misconduct. But we do not

know if, or in what context, these matters would arise on remand.

Accordingly, we decline to address them.

III. Disposition

¶ 21 The judgment of conviction is reversed, and the case is

remanded for a new trial.

JUDGE LUM and JUDGE MOULTRIE concur.

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