Peo v. Eugene

19CA2267 Peo v Eugene 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA2267
Arapahoe County District Court No. 18CR1224
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Terrence Kenneth Eugene,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE PAWAR
Kuhn and Bernard*, JJ., concur

Prior Opinion Announced September 1, 2022, Reversed in 22SC952

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 6, 2025

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, 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. 2024.
¶1 Defendant, Terrence Kenneth Eugene, was convicted of second

and third degree assault arising out of a road rage incident. He

appealed to this court, challenging the trial court’s failure to

suppress at least part of his interrogation by police, among other

things. Two members of this division agreed with his suppression

argument and reversed without addressing his additional appellate

arguments. People v. Eugene, 2022 COA 99, ¶ 6, rev’d, 2024 CO

59. The supreme court granted certiorari and reversed that

opinion, holding that the entire interrogation was properly

admitted. People v. Eugene, 2024 CO 59, ¶ 1. It then remanded

the case to us to consider Eugene’s remaining appellate arguments.

Id. at ¶ 28. We do so now, affirming the judgment of conviction and

remanding to merge the convictions and correct the mittimus.

I. Background

¶2 Eugene was driving with his wife and got into a road rage

incident with two men in another vehicle. Eventually, all four

individuals got out of their respective vehicles, and Eugene had a

physical altercation with the other driver. There was conflicting

evidence about who initiated the physical fight. Both men

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sustained injuries, though the other driver’s injuries were more

severe, including cuts to his face and back.

¶3 Eugene was charged with two counts of second degree assault.

The jury found him guilty of one count of second degree assault and

one count of third degree assault, both of which required the jury to

find that he caused the other driver serious bodily injury.

¶4 On remand from the supreme court, the remaining arguments

we must consider are Eugene’s contentions that the trial court

erred by (1) admitting expert testimony about whether the victim’s

injuries constituted serious bodily injury; (2) allowing the

prosecutor to engage in misconduct during closing argument;

(3) failing to give defense-tendered jury instructions; and (4) failing

to merge the assault convictions. We conclude that only the last of

these arguments warrants relief.

II. Expert Testimony

¶5 Eugene argues that a medical expert improperly opined on

whether a legal standard had been met by testifying that the victim

suffered serious bodily injury. We review evidentiary rulings like

this one for an abuse of discretion. See Campbell v. People, 2019

CO 66, ¶ 21. Because this alleged error is unpreserved, we will

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reverse only if any error is plain. See Hagos v. People, 2012 CO 63,

¶ 14. Plain error must be both obvious and substantial, meaning

that it so undermined the fundamental fairness of the trial that it

cast serious doubt on the reliability of the conviction. Id. We

perceive no plain error here.

¶6 An expert may provide testimony that “embraces an ultimate

issue to be decided by the trier of fact.” CRE 704. But an expert

“may not usurp the function of the jury.” People v. McMinn, 2013

COA 94, ¶ 51. Expert testimony usurps the function of the jury if

the testimony “form[s] conclusions for the jurors that they are

competent to reach on their own” by “applying the law to the facts

to reach a conclusion.” People v. Baker, 2019 COA 165, ¶ 14, aff’d,

2021 CO 29.

¶7 Whether injuries meet the legal definition of serious bodily

injury is a question of fact for the jury. People v. Baker, 178 P.3d

1225, 1233 (Colo. App. 2007). Thus, an expert risks impermissibly

usurping the jury’s function by testifying that a victim’s injuries

satisfy the legal definition of serious bodily injury. See People in

Interest of J.R., 2021 COA 81, ¶¶ 31-33 (expert usurped the

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function of the jury by testifying that the victim suffered sexual

abuse under the legal definition of that term).

¶8 The expert testimony at issue here came from the doctor who

treated the other driver at the hospital. On direct examination, the

prosecution asked him to read the legal definition of serious bodily

injury, which the doctor did. The prosecution then asked whether

the other driver’s injuries satisfied that definition, and the doctor

answered that they did. The trial court also admitted a “Serious

Bodily Injury Determination Form” in which the doctor affirmed the

same. Thus, the doctor testified that a required element of the

charged offenses (serious bodily injury) was met.

¶9 We will assume without deciding that admitting the testimony

was an abuse of discretion. But even if admitting the testimony

was error, it was not plain error.

¶ 10 The properly admitted testimony from the doctor included his

opinion that the cut on the other driver’s face had “the potential

risk of permanent scarring or misalignment of the eyebrow after

repair [and] ha[d] the risk of disfigurement.” The jury also saw

photographs of the other driver’s injuries. Because all of this

evidence was uncontroverted, the properly admitted evidence

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overwhelmingly established that the other driver suffered serious

bodily injury. See § 18-1-901(3)(p), C.R.S. 2024 (defining serious

bodily injury as involving “a substantial risk of serious permanent

disfigurement” or “a substantial risk of protracted loss or

impairment of the function of any part or organ of the body”).

¶ 11 Moreover, the main issue at trial was whether Eugene or the

other driver was the initial aggressor and, therefore, whether

Eugene acted in self-defense. The expert’s testimony did not bear

on these issues.

¶ 12 Thus, we are able to say that there was no plain error because

the erroneously admitted evidence does not cause us to doubt the

reliability of the conviction. See Hagos, ¶ 14.

III. Prosecutorial Misconduct

¶ 13 We evaluate allegations of prosecutorial misconduct using a

two-step analysis. First, we determine whether the conduct was

improper based on the totality of the circumstances. Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). Second, if the conduct

was improper, we determine whether the impropriety warrants

reversal under the applicable standard. Id.

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¶ 14 When evaluating propriety under the first step, we are mindful

that arguments delivered during trial are not always perfectly

scripted. People v. Samson, 2012 COA 167, ¶ 30. Accordingly,

prosecutors have wide latitude in the language they choose, and we

accord them “the benefit of the doubt when their remarks are

ambiguous or simply inartful.” Id.

¶ 15 The prosecutor’s statement at issue here came during closing

argument:

We met [Eugene]. This is not self-defense.
This is assault.

Look at the credibility when you evaluate self-
defense, when you evaluate who told you what.

[Eugene] never mentions or claims self-
defense. He admits some words.

....

. . . He denies a weapon. He denies punching.
He denies injuries. . . . [Eugene] got out of his
car first. He is the initial aggressor. He never
calls the police for help. He never mentions
self-defense.

¶ 16 Eugene contends that this argument was improper because it

(1) implied that Eugene had to say the phrase “self-defense” to

invoke that defense; (2) invited the jury to penalize Eugene for

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declining to testify at trial; and (3) suggested that it was Eugene’s

burden to prove self-defense, not the prosecution’s burden to

disprove it. We conclude the challenged statements did none of

these things.

¶ 17 The evidence included Eugene’s interrogation by police, in

which he gave police his version of the events at issue. In that

interrogation, Eugene did not say that he engaged in the physical

fight to protect himself or his wife. The prosecutor’s reference to

what Eugene did and did not say was therefore a proper comment

on facts in evidence and the reasonable inferences to be drawn from

them. See People v. Jamison, 2018 COA 121, ¶ 31. And at no point

did the prosecutor refer to Eugene’s decision not to testify at trial or

whether it was his burden to prove anything. We therefore reject

Eugene’s argument that the prosecutor engaged in misconduct.

IV. Jury Instructions

¶ 18 Eugene next argues that the trial court erred by failing to give

three jury instructions he tendered related to self-defense. These

are challenges to the trial court’s decision about which instructions

to give; they do not assert that the court incorrectly instructed the

jury on the applicable law. We therefore review the trial court’s

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actions for an abuse of discretion. See People v. Gwinn, 2018 COA

130, ¶ 31, overruled on other grounds by Linnebur v. People, 2020

CO 79M, ¶ 8. We perceive none.

¶ 19 A defendant is entitled to a requested instruction if there is

some credible evidence to support it. See Cassels v. People, 92 P.3d

951, 955 (Colo. 2004). When determining whether the evidence

warrants a requested instruction, we view the evidence in the light

most favorable to the defendant. Id.

¶ 20 In general, self-defense justifies a defendant’s use of physical

force against an alleged victim as long as (1) the force was deployed

by the defendant to defend himself or another person from what he

reasonably believed was the use or imminent use of unlawful

physical force by the alleged victim, and (2) the defendant used a

degree of force he reasonably believed to be necessary to defend

himself or the other person from the alleged victim. See Pearson v.

People, 2022 CO 4, ¶ 22.

¶ 21 Eugene’s defense at trial was that the other driver initiated the

physical altercation, and whatever force he used in the fight was

reasonable given that initial force and threat of force from the other

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driver. Because there was some credible evidence to support this

theory, the trial court gave the following self-defense instruction:

The defendant was legally authorized to use
physical force upon another person without
first retreating if:

1. he used that physical force in order to
defend himself or a third person from what he
reasonably believed to be the use or imminent
use of unlawful physical force by the other
person, and

2. he used a degree of force which he
reasonably believed to be necessary for that
purpose, and

3. he did not, with intent to cause bodily injury
or death to another person, provoke the use of
unlawful physical force by that other person,
and

4. he was not the initial aggressor, or, if he
was the initial aggressor, he had withdrawn
from the encounter and effectively
communicated to the other person his intent
to do so, and the other person nevertheless
continued or threatened the use of unlawful
physical force.

¶ 22 Eugene argues that the first two of his tendered instructions

were necessary because the evidence showed that he faced a threat

from multiple assailants (the other driver and his passenger), and

the self-defense instruction the court gave contemplated a threat

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from just one assailant (the other driver). We need not address the

substance of those two additional instructions because we disagree

that there was any evidence of a threat from the other driver’s

passenger. Eugene’s wife testified that after Eugene and the other

driver exited their vehicles, she and the passenger got out of their

respective vehicles and “then we stood next to each other while [the

fight] was going on.” There was no evidence that the passenger did

anything threatening the imminent use of unlawful force to Eugene

or his wife. Indeed, the passenger’s only involvement in the fight

was to pull the other driver off Eugene at the end. We therefore

reject Eugene’s argument that he was entitled to any instructions

based on evidence that there were multiple assailants.

¶ 23 Eugene also argues that he was entitled to his third tendered

instruction on the lack of a duty to retreat because the given self-

defense instruction did not adequately convey this principle to the

jury. We disagree.

¶ 24 Eugene’s tendered instruction on this aspect of self-defense

read, “A person is entitled under the law to exercise his right to self-

defense without attempting to retreat or flee. A person has the right

to stand his ground when confronted by another who he reasonably

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believes to be threatening or assaulting him.” But the given self-

defense instruction said as much. It said that Eugene was legally

authorized to use physical force in self-defense “without first

retreating.” Because the tendered instruction would have been

redundant, the court did not abuse its discretion by declining to

give it.

V. Merger

¶ 25 Finally, Eugene argues, and the prosecution agrees, that the

trial court erred by failing to merge his second and third degree

assault convictions. We also agree and conclude that although the

error was unpreserved, it warrants relief.

¶ 26 Third degree assault merges with second degree assault as

long as there was only a single act of assault. See People v. Valera-

Castillo, 2021 COA 91, ¶ 52. We agree with Eugene and the

prosecution that there was only a single assault here. It was

therefore error not to merge the two assault convictions. This error

requires a remedy regardless of whether it qualified as plain error.

See Whiteaker v. People, 2024 CO 25, ¶ 24 (“[W]hen a defendant

establishes that a trial court entered multiplicitous punishments in

violation of double jeopardy principles, merger is the remedy.”). We

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therefore remand with directions to merge the convictions and

correct the mittimus.

VI. Disposition

¶ 27 The case is remanded to the trial court with directions to

correct the mittimus by merging the two assault convictions. The

judgment of conviction is otherwise affirmed.

JUDGE KUHN and JUDGE BERNARD concur.

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