Peo v. Doctor

23CA1175 Peo v Doctor 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1175
Montezuma County District Court No. 22CR162
Honorable Todd Jay Plewe, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gabrielle D. Juan Doctor,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE PAWAR
Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Benjamin B. Currier, Deputy
State Public Defender, Mallory Taub, Deputy State Public Defender, Durango,
Colorado, for Defendant-Appellant
¶1 Defendant, Gabrielle D. Juan Doctor, appeals the judgment of

conviction entered after a jury found him guilty of multiple criminal

charges stemming from a car and motorcycle collision resulting in

death. We affirm.

I. Background

¶2 While driving his car, Doctor struck the victim motorcyclist,

Travis Beeson, who later died from his injuries. When police

arrived at the scene, Doctor told them he was turning left into

oncoming traffic, the sun was in his eyes, and he did not see the

motorcycle until it was too late. Doctor was driving with his

nephew and his six-year-old niece, who was unrestrained, in the

backseat, and he admitted that he did not have insurance and was

not wearing the corrective lenses required by his driver’s license.

¶3 After administering horizontal gaze nystagmus (HGN) tests,1

law enforcement arrested Doctor under suspicion of driving while

ability impaired (DWAI). A blood toxicology test taken two hours

after the collision reflected that Doctor’s blood alcohol content (BAC)

was .057 g/100 mL and his THC level was 4.2 ng/mL. Doctor told

1 An HGN test seeks to detect an involuntary jerking of the eyes

associated with impairment.

1
police he had been drinking the night before and into the morning

of the accident. Police found several empty alcohol containers in

his car, as well as a makeshift pipe with burnt marijuana residue in

his driver’s side door.

¶4 The prosecution charged Doctor with vehicular homicide

(DWAI); criminally negligent homicide; DWAI; child abuse

(negligence, no injury); careless driving resulting in death;

compulsory insurance; failure to yield right of way; and no child

restraint. A jury acquitted him of vehicular homicide and criminally

negligent homicide but found him guilty of the remaining charges.

¶5 Doctor appeals, arguing that the trial court erred by

(1) denying his motion to suppress evidence obtained during a

roadside sobriety test and (2) allowing the prosecution to display an

in-life photograph of the decedent at trial. Doctor also claims the

prosecutor engaged in misconduct during closing argument.

II. Motion to Suppress

A. Applicable Law

¶6 Appellate review of a trial court’s order on a motion to

suppress presents mixed questions of law and fact. People v.

Kessler, 2018 COA 60, ¶ 16. We review the trial court’s factual

2
findings for clear error, but we review de novo the court’s legal

conclusions. Id.

¶7 A roadside sobriety test is a full search in the constitutional

sense and, as relevant here, can be administered when the driver

voluntarily consents to perform the test. People v. Young, 2024

COA 1, ¶ 11. To assess whether a person’s consent was voluntary,

we consider the totality of the circumstances and apply an objective

test to determine whether the defendant could reasonably have

construed the police conduct to be coercive. Id. at ¶ 12. Consent is

involuntary when it results from duress, coercion, or any other form

of undue influence exercised by the police against the defendant.

Id. at ¶ 13.

¶8 Police officers are entitled to conduct an investigatory stop of a

motorist if they have reasonable suspicion that the motorist has

committed or is about to commit a crime. People v. Ramos, 13 P.3d

295, 297 (Colo. 2000). However, “once the purpose of an initially

valid investigatory stop has been satisfied, any further detention or

questioning of the driver of a vehicle constitutes unreasonable and

therefore unlawful detention prohibited by the Fourth Amendment.”

People v. Redinger, 906 P.2d 81, 85 (Colo. 1995).

3
B. Additional Facts

¶9 Officer Sharp and Sergeant Edwards responded to the scene of

the accident. Sharp was new to the force, while Edwards had years

of experience. Edwards smelled alcohol while standing with Doctor

and his family and directed Sharp to proceed with a DUI

investigation.

¶ 10 Sharp asked Doctor if he would be willing to perform voluntary

roadside sobriety maneuvers. Doctor declined to perform the walk-

and-turn and one-leg stand test due to a knee injury, but consented

to a HGN test. Sharp did not see any signs of impairment from the

test.

¶ 11 Edwards, unsure about Sharp’s assessment, asked Doctor if

he could look at his eyes “real fast.” Doctor agreed, and after

administering a second HGN test, Edwards observed four out of six

clues showing impairment.

C. Discussion

¶ 12 Doctor argues the trial court erred by concluding that his

consent to the second HGN test was knowing and voluntary. He

further argues that because the police’s reasonable suspicion of

him dissipated after he satisfactorily completed the first HGN test,

4
the second HGN test exceeded the bounds of a permissible

investigatory stop. We are not persuaded.

¶ 13 Doctor concedes that he consented to the first HGN test

administered by Sharp. But he argues that his consent to the

second HGN was not knowing because he did not know Edwards

was asking to conduct further sobriety examinations. Rather, he

says he understood Edwards’ request to look in his eyes as a

request to observe him, not to subject him to additional testing.

That is, he does not disagree that he uttered words of consent, but

he argues that he did not consent to testing.

¶ 14 The trial court disagreed, finding that “[i]n the context of the

situation, any reasonable person would have understood that []

Edwards was asking to repeat the HGN test that [] Sharp had

performed.” The record supports this finding. The trial court

considered testimony from both officers and reviewed footage

obtained from body cameras they wore during their interactions

with Doctor. It noted that Doctor was present when Edwards asked

Sharp if he could double check the results of the first HGN, and

Doctor “should have heard this interaction.” Also, Edwards’ request

to look at Doctor’s eyes a second time came immediately after Sharp

5
completed the first HGN test.2 We agree with the trial court that

this context should have indicated to Doctor that Edwards sought

to continue the roadside sobriety test that was already in progress.

Accordingly, we conclude Doctor’s consent to the second HGN test

was voluntary.

¶ 15 Doctor next asserts that the second HGN test exceeded the

bounds of a permissible investigatory stop because, after Sharp saw

no signs of impairment, the police no longer had reasonable

suspicion to conduct their investigation. We disagree.

¶ 16 As an initial matter, as we just discussed, Doctor consented to

the second test, thereby making it a consensual interaction. That

is, the police had permission to detain Doctor via his consent.

¶ 17 In any event, based on the undisputed body camera

recordings, the trial court found that “[a]lmost directly after Officer

Sharp completed the HGN test, Sgt[.] Edwards first asked Officer

Sharp what result he got from the HGN and when Officer Sharp

said ‘good,’ Sgt. Edwards asked if Officer Sharp minded if he

2 Doctor does not dispute the trial court’s summary of the body

camera recordings. Because the recordings are omitted from the
record on appeal, we must assume they support the trial court’s
findings. See People v. Schupper, 2014 COA 80M, ¶ 31 n.3.

6
checked.” The court credited Edwards’ testimony that he doubted

Sharp’s initial conclusion, noting that “Edwards was acting in a

training role for a much less experienced officer,” and “[i]t is not

unreasonable to believe that [he] was more attuned to perceiving

evidence” than Sharp.

¶ 18 Based on this record, we conclude the second HGN test was

part of a reasonable investigatory stop. Sharp’s statement to

Edwards that the first HGN test was “good” was part of their

ongoing investigation, not a statement to Doctor that the

investigation had ended. Viewed in that context, even after the first

HGN test, the police continued to have reasonable suspicion that

Doctor had committed a crime. See Ramos, 13 P.3d at 297.

Because the purpose of the investigatory stop was ongoing, we

conclude the second HGN test was part of a reasonable detention.

See Redinger, 906 P.2d at 85.

III. Admission of In-Life Photograph

A. Applicable Law

¶ 19 Generally, evidence is admissible if it is relevant — that is, if it

tends to make the existence of any consequential fact more or less

probable than it would be without the evidence. CRE 401; CRE

7
402; Rojas v. People, 2022 CO 8, ¶ 25. But relevant evidence must

be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice. CRE 403. Before admitting “in-life”

photographs of homicide victims, the trial court must apply CRE

403’s balancing test.

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

discretion. People v. McClelland, 2015 COA 1, ¶ 40. An abuse of

discretion occurs when a trial court’s ruling is manifestly arbitrary,

unreasonable, or unfair. Id. We review nonconstitutional errors

that were preserved by objection for harmless error. Hagos v.

People, 2012 CO 63, ¶ 12. Under this standard, an erroneous

evidentiary ruling does not require reversal unless it substantially

influenced the verdict or affected the fairness of the trial

proceedings. Id.

B. Additional Facts

¶ 21 The victim’s father testified at trial. During his testimony, and

over defense counsel’s objection, the trial court allowed the

prosecution to display for the jury a photograph of the victim as he

appeared months before the accident — smiling with Christmas

lights behind him. The court concluded that because the jury had

8
already seen a picture of the injured victim at the accident, the in-

life photograph was probative “to see what he looked like before

that.”

¶ 22 Following the testimony, defense counsel moved for a mistrial

because two jurors were crying after the photograph was displayed.

The trial court denied the motion. It also allowed the prosecutor to

display the in-life photograph during closing argument, again over

defense counsel’s objection.

C. Discussion

¶ 23 As noted, CRE 403 requires a court to conduct a balancing

test to weigh the probative value of evidence against the risk of

unfair prejudice. While the trial court identified some probative

value for the evidence (beyond that argued by the prosecution), it

did not explicitly address the danger of unfair prejudice. But even if

we assume without deciding that the photograph’s risk of unfair

prejudice outweighed its probative value, we conclude the error was

harmless.

¶ 24 Recall that the jury acquitted Doctor of vehicular homicide and

criminally negligent homicide. “While a split verdict does not

conclusively decide the harmlessness question, it is ‘an indication

9
that the jurors exercised some discretion in their deliberations’ and

that the error did not cause them to ‘blindly convict the defendant.’”

Washington v. People, 2024 CO 26, ¶ 35 (citation omitted).

¶ 25 Doctor points to McClelland to urge us to reach a different

conclusion. There, the division concluded that the court’s error in

admitting in-life photographs under CRE 403 was not harmless,

despite the jury’s split verdict, because the photographs may have

persuaded the jury to convict McClelland of a different offense

(reckless manslaughter). See McClelland, ¶ 56 n.4. But even the

McClelland division recognized that unfair prejudice may be limited

when there is a split verdict, and it found reversible error based on

the photographs’ influence “along with” a plainly erroneous self-

defense jury instruction. Id. We have found no similarly reversible

error here, and we see no similar risk of unfair prejudice because

Doctor’s convictions were for counts wholly different from the

homicide counts and supported by independently strong evidence.

For example:

• Undisputed evidence established that Doctor turned left

into oncoming traffic, did not have insurance, and did

not have his child in a booster seat, supporting his

10
convictions for failure to yield, compulsory insurance, no

child restraint, child abuse. In fact, during closing

argument, defense counsel made no attempt to argue

that Doctor was not guilty of these offenses.

• Substantial undisputed evidence also supported the

careless driving resulting in death conviction. That the

collision caused the victim’s death was undisputed, and

the jury heard evidence that Doctor drove without

wearing his prescription lenses, turned into oncoming

traffic while the sun was in his eyes, and failed to block

the sun with his hand so he could see. It also heard that

Doctor reported he had been drinking the night before

and into the morning of the collision. Indeed, defense

counsel acknowledged during closing argument that

Doctor made some mistakes on the day of the accident,

including by failing to shield his eyes from the sun.

• Substantial evidence likewise supported the DWAI

conviction. A person commits DWAI if they “drive[] a

motor vehicle or vehicle while impaired by alcohol or by

one or more drugs, or by a combination of alcohol and

11
one or more drugs.” § 42-4-1301(1)(b), C.R.S. 2024. Two

hours after the accident, Doctor’s BAC was .057 and he

had THC in his system. An expert testified that it was

possible this degree of impairment would prevent safe

operation of a motor vehicle and that the effects of THC

and alcohol increase one another. The jury was also

instructed to presume that Doctor was not under the

influence of alcohol if, at the time of the accident, he had

.05 or less grams of alcohol per one hundred milliliters of

blood.

¶ 26 Considering the jury’s split verdict in combination with the

strong evidence of Doctor’s guilt for the nonhomicide offenses, we

conclude that there is no reasonable probability the jury’s sympathy

for the victim substantially influenced the verdict or affected the

fairness of Doctor’s trial. See Hagos, ¶ 12.

IV. Prosecutorial Misconduct

A. Applicable Law

¶ 27 A prosecutor has wide latitude during closing argument to

argue all reasonable inferences that may be drawn from evidence in

the record. People v. Rhea, 2014 COA 60, ¶ 46. However, a

12
prosecutor may not make comments that amount to expert

testimony, refer to facts not in evidence, or make arguments that

are calculated to appeal to the jury’s prejudices. See Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005); People v. Davis,

280 P.3d 51, 54 (Colo. App. 2011).

¶ 28 We review a claim of prosecutorial misconduct in two steps.

Rhea, ¶ 40. We first determine whether misconduct occurred based

on the totality of the circumstances. Id. If we conclude it did, we

determine whether it warrants reversal according to the proper

standard of review. Id.

¶ 29 We review a preserved claim of prosecutorial misconduct for

an abuse of discretion, People v. Monroe, 2018 COA 110, ¶ 11, aff’d,

2020 CO 67, and “will only reverse if there is a reasonable

probability that the error contributed to the defendant’s conviction.”

Id.

B. Discussion

¶ 30 Doctor argues he is entitled to a new trial because, during

closing argument, the prosecutor held himself out as an expert in

retrograde extrapolation (a method of determining a person’s BAC

at a point in time earlier than the draw) by opining that Doctor’s

13
likely BAC at the time of the accident was between .077 and .107.

He also argues the prosecutor argued facts not in evidence by

arguing that Doctor used marijuana while children were in the

vehicle. And he asserts the prosecutor attempted to inflame the

jury’s passions by displaying the in-life photograph of the victim

and arguing that the victim “lost more than his life. His parents

lost the ability to see him get married, have kids, have a successful

life.”

¶ 31 At the outset, we disagree that the prosecutor’s argument

regarding the likely range of Doctor’s BAC at the time of the

accident amounted to improper expert testimony. These comments

were explicitly based on an expert toxicologist’s testimony that

Doctor had a BAC of .057 g/100 mL two hours after the accident,

and the body consumes alcohol at a rate of .01 to .025 g/100 mL

per hour. Multiplying each end of the range of rate of consumption

by two (because Doctor’s blood was drawn two hours after the

accident), results in the precise range argued by the prosecutor:

14
.077 to .107 g/100 mL.3 Therefore, these comments were

reasonable inferences drawn from the evidence. See Rhea, ¶ 46.

¶ 32 We agree with Doctor that the prosecutor’s other comments

were improper. After Doctor’s initial objection to the prosecutor’s

statement that Doctor chose “to use marijuana while he has his

family in the vehicle,” the trial court ruled there was no evidence

that Doctor used marijuana while driving. Despite this ruling, the

prosecutor argued again during rebuttal closing that Doctor decided

“to get behind the wheel of that car to begin with and to put

children into the car and then to use drugs.” This was an improper

reference to facts not in evidence.4 See Davis, 280 P.3d at 52.

¶ 33 Likewise, the prosecutor’s references to the victim’s missed

opportunities in life improperly suggested that the jury should

3 Low end of the range: .01 x 2 (hours) = .02 + .057 = .077

g/100mL.
High end of the range: .025 x 2 (hours) = .05 + .057 = .107
g/100mL.
4 The parties disagree as to whether Doctor preserved his objection

to the prosecutor’s second misstatement of the evidence. But we
need not decide this issue, because we conclude the prosecutor’s
comment was ultimately harmless, so it cannot have been plain.
See Hagos v. People, 2012 CO 63, ¶ 14 (plain error must impair the
reliability of the judgment of conviction to a greater degree than
under harmless error to warrant reversal).

15
reach its verdict out of sympathy for the victim, rather than based

on the evidence. See People v. McBride, 228 P.3d 216, 223 (Colo.

App. 2009) (prosecutors may not suggest that guilty verdicts are

necessary to do justice for a sympathetic victim). As already

discussed, the impropriety of these comments was further

exacerbated by the prosecutor’s display of the victim’s in-life

photograph during closing argument.

¶ 34 Nevertheless, we cannot conclude these comments warrant

reversal. As described above, the evidence that Doctor failed to

yield, lacked insurance, failed to use a child restraint, and engaged

in negligent child abuse was undisputed, and the evidence of

careless driving resulting in death and DWAI was strong. The

prosecutor’s improper comments were relatively brief and isolated,

and the jury’s split verdict indicates that it was able to fairly

consider the evidence despite them. See Washington, ¶ 35.

¶ 35 Moreover, the trial court properly instructed the jury that

there was no evidence that Doctor used marijuana with children in

the vehicle, and it told the prosecutor to move on from his

references to the victim’s missed opportunities. See People v.

Tillery, 231 P.3d 36, 43 (Colo. App. 2009) (we presume the jury

16
followed the court’s curative instructions), aff’d sub nom. People v.

Simon, 266 P.3d 1099 (Colo. 2011). The trial court also instructed

the jury that “[s]ympathy and prejudice have no place in a criminal

trial,” and “[t]his case must be decided only on the evidence

presented.” Viewing the prosecutor’s improper comments in the

context of the record as a whole, we discern no reasonable

probability that prosecutorial misconduct contributed to Doctor’s

convictions. See Monroe, ¶ 11.

V. Disposition

¶ 36 The judgment is affirmed.

JUDGE HARRIS and JUDGE GROVE concur.

17