Peo v. Harris

24CA1208 Peo v Harris 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1208
Adams County District Court No. 22CR1880
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Deon Lance Harris,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE MOULTRIE
Dunn and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 19, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Deon Lance Harris, appeals the judgment of

conviction entered by the trial court after a bench trial in which the

court found him guilty of second degree (reckless) assault and

adjudicated him a habitual criminal. We reverse the judgment of

conviction and remand with directions.

I. Background

¶2 In June 2022, Harris, the victim, and a friend were drinking at

the friend’s apartment when an incident occurred. The friend and

the victim had been drinking heavily for hours before Harris arrived

at the apartment. When Harris entered the apartment, he asked

the victim to leave. The victim refused and told him to “F off.” The

friend described that the victim “started getting crazy with words”

and “being really mean to [Harris]” during this interaction. Not long

after, the victim went to the bathroom, and the friend said that the

victim “kept talking some serious sh*t” as she made her way to the

bathroom.

¶3 The victim had been in the bathroom for a few minutes, so

Harris went to check on her. The friend described that that’s when

“all . . . hell broke loose.” The friend went to the bathroom to see

what was going on. She saw the victim lying on the ground with a

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big “knot” on her head. She also saw that Harris’s hand was

bleeding.

¶4 The victim called 911 multiple times and asked the operator

for help. She told the operator she had blood all over her; “He’s

going to kill me”; and “If you can’t find me, then I’m going to be

dead.” The operator asked the victim what happened to her that

caused her to bleed to which the victim responded, “He beat the

f*ck out of me.” The operator then asked the victim where the man

was and the name of the man who hit her. The victim didn’t know

where she was, and the operator was having difficulty locating the

victim. After getting frustrated that the operator couldn’t find her,

the victim hung up, but the operator called her back. The operator

asked the victim, “The male that hit you, what’s his name? Maybe I

can find his apartment.” The victim identified Harris as the man

who hit her (identification statement).

¶5 First responders transported the victim to the ER where a

doctor treated her. The ER doctor completed a form indicating that

he believed the victim suffered serious bodily injury (SBI), in part

because of a hematoma on her forehead.

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¶6 The prosecution charged Harris with first degree assault. A

few weeks before the case was set to proceed to a jury trial, Harris

requested a bench trial. Defense counsel also filed a pretrial motion

objecting to the prosecution introducing the statements from the

victim’s 911 call. Defense counsel argued that the victim’s

statements in the 911 call were (1) testimonial statements that

implicated the Confrontation Clause under both the United States

and Colorado Constitutions and (2) inadmissible hearsay not

subject to the excited utterance exception in CRE 803(2).

¶7 The court addressed Harris’s objection during the second day

of the bench trial. The court found that the victim was unavailable

and ruled that, based on the 911 operator’s testimony and the

recording itself, the victim was in an “excited state”; thus, the 911

call was admissible under CRE 803(2). The court also ruled that

the victim’s 911 statements were nontestimonial because the

purpose of her statements was to stop an emergency and obtain

police intervention.

¶8 The court found Harris not guilty of first degree assault but

guilty of the lesser included offense of second degree (reckless)

assault. Before trial, the prosecution filed a motion requesting to

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add habitual criminal counts as a sentence enhancer. The

prosecution alleged that Harris had been convicted of four prior

felonies between 1999 and 2015. Defense counsel filed a motion

asking the court to declare Colorado’s habitual offender statute,

section 18-1.3-801(2)(a)(I), C.R.S. 2025, facially unconstitutional.

The court granted the prosecution’s request and denied the

defense’s motion. Thus, after the court entered the guilty verdict, it

held a separate hearing during which it received evidence regarding

Harris’s prior felony convictions and issued a written order

adjudicating Harris a habitual criminal. The court sentenced

Harris to thirty-two years in the custody of the Department of

Corrections to run consecutive to a term of five years from an

unrelated case.

¶9 Harris appeals and argues that (1) the court erred when it

admitted evidence of the victim’s 911 call; (2) the evidence is

insufficient to support the court’s SBI finding; and (3) Colorado’s

habitual offender statute is facially unconstitutional.

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II. Admissibility of the 911 Call

A. Applicable Legal Principles

1. CRE 803(2)

¶ 10 Hearsay statements aren’t admissible unless they fall under

an applicable exception like the excited utterance exception. See

CRE 802; CRE 803(2). A proponent seeking to admit a hearsay

statement as an excited utterance must demonstrate, as relevant

here, that “(1) the occurrence or event was sufficiently startling to

render inoperative the normal reflective thought processes of an

observer,” and “(2) the declarant’s statement was a spontaneous

reaction to the event.” People v. King, 121 P.3d 234, 237 (Colo.

App. 2005).

¶ 11 A court considers the following nonexhaustive factors in

determining whether a statement was spontaneous: the lapse of

time between the startling event and the out-of-court statement,

whether the statement was accompanied by outward signs of

excitement or emotional distress, whether the statement was made

in response to an inquiry, and the words the declarant used to

describe the experience. People v. Abdulla, 2020 COA 109M, ¶ 65.

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¶ 12 Because the trial court “is in the best position to consider the

effect of the startling event on the declarant,” it has wide discretion

in determining the admissibility of an excited utterance. People v.

Martinez, 18 P.3d 831, 835 (Colo. App. 2000). We therefore review

the court’s ruling for an abuse of discretion. Gonzales v. People,

2020 CO 71, ¶ 25. A court abuses its discretion when its decision

is manifestly arbitrary, unreasonable, or unfair or based on an

erroneous understanding or application of the law. People v. McFee,

2016 COA 97, ¶ 17. We won’t disturb the court’s ruling if it has

record support. Martinez, 18 P.3d at 835.

2. The Confrontation Clause

¶ 13 A defendant in a criminal case has a constitutional right to

confront witnesses against him. See U.S. Const. amends. VI, XIV;

Colo. Const. art. II, § 16. The Confrontation Clause bars the

admission of testimonial statements of a witness who doesn’t

appear at trial and wasn’t previously subject to cross-examination.

Crawford v. Washington, 541 U.S. 36, 53-54 (2004); People v. Fry,

92 P.3d 970, 976 (Colo. 2004) (adopting Crawford’s Confrontation

Clause inquiry); see also Nicholls v. People, 2017 CO 71, ¶ 31

(“Colorado’s Confrontation Clause [is] commensurate with the

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federal Confrontation Clause.”). However, a defendant’s right of

confrontation doesn’t extend to nontestimonial hearsay statements

that fall within a firmly rooted exception. See Davis v. Washington,

547 U.S. 813, 821 (2006).

¶ 14 A court determines whether a 911 call is testimonial by

considering the caller’s intent. People v. Welsh, 176 P.3d 781, 792

(Colo. App. 2007). For example, if a caller is answering a 911

operator’s questions that are asked primarily to establish or prove

the facts of a past crime, then those statements are testimonial.

Davis, 547 U.S. at 826. Conversely, if a 911 caller describes

current circumstances that require police or medical assistance,

then those statements are nontestimonial. Id. at 827; Welsh, 176

P.3d at 792.

¶ 15 We review de novo whether the admission of evidence violated

a defendant’s confrontation rights. McFee, ¶ 28.

B. Analysis

¶ 16 Harris contends that the statements were inadmissible

hearsay not subject to the excited utterance exception and that the

court violated his Sixth Amendment right to confront the victim

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when it admitted the identification statement from the 911 call. We

disagree.

1. The Victim’s Statements Were Admissible as Excited
Utterances

¶ 17 Harris argues that the victim’s statements weren’t excited

utterances because the victim was relatively calm during the 911

call and her responses to the operator’s questioning indicated that

she maintained a normal, operative thought process; the victim

hung up on the operator, demonstrating that she didn’t fear

ongoing danger or an ongoing startling event; and the victim’s

identification statement wasn’t a spontaneous reaction to the

incident but was instead made in response to questioning. But, for

three reasons, we conclude that the court didn’t abuse its discretion

in admitting into evidence the 911 call.

¶ 18 First, we reject Harris’s assertion that the victim was relatively

calm during the call. The victim was audibly distraught throughout

the call. The victim expressed multiple times throughout the call

that if the operator couldn’t help her, she was “going to be dead.”

And, during the last minute of the call, the victim can be heard

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screaming, “Get him out of here!” which supports that the victim

continued to experience fear and distress until the end of the call.

¶ 19 Second, the circumstances of the call negate Harris’s assertion

that the victim’s action of hanging up evidenced that she had an

“independent interlude[] of reflective thought.” People v.

Stephenson, 56 P.3d 1112, 1116 (Colo. App. 2001). Mere seconds

elapsed between the instances of the victim hanging up. Contra id.

at 1115 (concluding a witness’s statement wasn’t spontaneous

because it occurred three hours after the startling event). Each

time the victim hung up, the operator either immediately called the

victim back or had the victim call back, and the victim continued to

express that she feared for her life.

¶ 20 Third, while it’s true that the victim’s identification statement

was made in response to a question from the 911 operator, the

question and the victim’s answer were directly related to the

operator’s attempt to locate the victim. The victim made the

identification statement shortly after she was assaulted, and the

fact that she couldn’t tell the operator where she was supports an

inference that the victim’s thought process was disrupted by the

assault. See Martinez, 18 P.3d at 835 (an assault is a “startling

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event”); see also King, 121 P.3d at 237-38 (the excited utterance

exception applies to statements made in response to questioning so

long as the circumstances demonstrate the statements were made

in response to a sufficiently startling event).

¶ 21 The record demonstrates that the incident was sufficiently

startling to render inoperative the victim’s normal reflective thought

processes, there was only a short lapse of time between the event

and the victim’s out-of-court statements, the victim continued to be

distressed, and the statements — including the identification

statement — were made in response to the incident. See Abdulla,

¶ 65. Accordingly, the court didn’t abuse its discretion when it

determined that the victim’s statements were admissible as excited

utterances.

2. The Identification Statement Was Nontestimonial

¶ 22 Harris concedes that, “during the early portion of the call, [the

victim’s] statements were nontestimonial.” But he argues that the

911 operator’s questions later “morphed the call into a statement to

prove a past fact” — the identity of the victim’s attacker. It’s

possible for a 911 call that begins for an emergency assistance

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purpose to become testimonial. Davis, 547 U.S. at 828. However,

we can’t conclude that is the scenario here.

¶ 23 During the 911 call, the victim indicated that the man who

had attacked her was still present. And, as already discussed, the

911 operator couldn’t locate the victim as she was in the midst of

this emergency. Thus, when viewed objectively, it’s clear that the

primary purpose of the 911 operator’s questions was to resolve the

emergency, rather than to learn what had already happened. See

id. at 827.

¶ 24 Accordingly, we conclude that the victim’s identification

statement was nontestimonial and therefore didn’t implicate

Harris’s confrontation rights.

III. Sufficiency of the Evidence

A. Additional Background

¶ 25 The court heard testimony from the ER doctor during the trial.

As relevant here, the ER doctor said that a large hematoma above

the victim’s left eye constituted SBI. The ER doctor explained that a

hematoma is a collection of blood that develops underneath the

skin due to a traumatic injury.

¶ 26 The ER doctor then testified as follows:

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[Prosecutor]: Okay. And as to the hematoma
specifically[,] what is the risk of — substantial
risk of serious permanent disfigurement?

[ER Doctor]: Well, with the large hematoma
that she had it can — there [are] a lot of facial
nerves that we have obviously and when you
have a large hematoma or pressure on that it
can damage the nerves and that can eventually
cause in her case like asymmetrical forehead
movement.

[Prosecutor]: Involuntary movements of her
face?

[ER Doctor]: Not necessarily involuntary but
inability to move, correct.

(Emphasis added.)

¶ 27 Crediting the ER doctor’s testimony and opinions, the court

found that the prosecution had proved beyond a reasonable doubt

that the victim had suffered SBI because the hematoma created a

substantial risk of serious permanent disfigurement.

B. Applicable Legal Principles

¶ 28 Serious bodily injury includes “bodily injury that, either at the

time of the actual injury or at a later time, involves . . . a

substantial risk of serious permanent disfigurement.”

§ 18-1-901(3)(p), C.R.S. 2025. “[T]he facts of the actual injury

control the substantial risk of [serious permanent disfigurement]

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determination under section 18-1-901(3)(p), not the risk generally

associated with the type of conduct or injury in question.” People v.

Vigil, 2021 CO 46, ¶ 33.

¶ 29 We review sufficiency of the evidence claims de novo. McCoy v.

People, 2019 CO 44, ¶ 63; Maestas v. People, 2019 CO 45, ¶ 13 (“[A]

conviction that is based on legally insufficient evidence cannot

stand.”). When a defendant challenges the sufficiency of the

evidence supporting a conviction, we consider whether the relevant

evidence, viewed as a whole and in the light most favorable to the

prosecution, “is substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt.” McCoy, ¶ 63 (quoting Clark v. People,

232 P.3d 1287, 1291 (Colo. 2010)). We must “give the prosecution

the benefit of all reasonable inferences that might fairly be drawn

from the evidence,” People v. Donald, 2020 CO 24, ¶ 19, so long as

such inferences are supported by a “logical and convincing

connection” between the inferred conclusion and the established

facts, id. (quoting People v. Perez, 2016 CO 12, ¶ 25).

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C. Analysis

¶ 30 Harris argues that the evidence doesn’t support that the

victim’s facial hematoma created a substantial risk of permanent

disfigurement because the victim wasn’t “actually at risk of

suffering from nerve damage” and wasn’t diagnosed with any nerve

damage. He asserts that the ER doctor’s testimony that a

hematoma can cause damage to facial nerves only identified a risk

generally associated with the type of injury the victim sustained,

rather than a risk associated with the victim’s actual injury. See

Vigil, ¶ 33.

¶ 31 The People dispute Harris’s assertion that the doctor’s

testimony pertained to the risks generally associated with

hematomas, rather than to the risks specific to the injury the victim

actually suffered. In essence, the People argue that the doctor’s “in

her case” statement moved the risks resulting from the victim’s

hematoma injury from the realm of generalized possibilities to the

realm of specific inevitabilities.

¶ 32 To the extent that Harris asserts that the victim needed to

have suffered facial nerve damage at the time she was hospitalized

for her injury to qualify as SBI, we reject that assertion. Section

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18-1-901(3)(p) expressly considers a substantial risk of serious

permanent disfigurement that occurs either at the time of the

actual injury or in the future.

¶ 33 However, even affording the prosecution the benefit of any

conflicting inferences from the doctor’s testimony, Perez, ¶ 31, we

conclude that the doctor’s testimony was insufficient to support the

court’s SBI finding. This is so because nothing in the doctor’s

testimony supports the conclusion that the risk the victim actually

suffered from the hematoma — the risk of future asymmetrical

forehead movement — was likely to be permanent.

¶ 34 Although the ER doctor testified that the victim’s hematoma

could eventually result in the victim being unable to move portions

of her forehead, nothing in the doctor’s testimony indicated that

such disfigurement would be permanent. See People v. Duncan,

2023 COA 122, ¶ 10 (discussing the meaning of the term

“permanent” under section 18-1-901(3)(p)) and defining it as

“continuing or enduring without fundamental or marked change,”

“stable,” or generally “indelible” (quoting Merriam-Webster

Dictionary, https://perma.cc/DSC9-FAMB)). Indeed, the doctor

admitted on cross-examination that a hematoma “will evolve into a

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bruise,” reduce in swelling, and ultimately resolve on its own as

part of the healing process. And given that the victim’s future risk

of asymmetrical forehead movement was linked to the pressure that

the hematoma placed on her facial nerves, there is no evidence in

the record to explain how the victim’s injuries would be permanent

regardless of the hematoma healing process. See Perez, ¶ 25.

¶ 35 And although the ER doctor opined that the hematoma

constituted an SBI, it remained the trial court’s responsibility to

determine whether the evidence satisfied the legal definition of SBI,

regardless of the ER doctor’s uncontroverted opinion. See Corcoran

v. Sanner, 854 P.2d 1376, 1380 (Colo. App. 1993) (a court is not

bound by an expert’s determination of the applicability of the law).

Yet the trial court doesn’t explain in its verdict — nor does the

record reveal — how the victim suffered a substantial risk of serious

permanent disfigurement based on the evidence underlying the ER

doctor’s ultimate opinion. Thus, even giving the prosecution the

benefit of all reasonable inferences, we can’t conclude that the

evidence is sufficient to support Harris’s conviction for second

degree assault beyond a reasonable doubt. See McCoy, ¶ 63.

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¶ 36 The trial court explicitly based its SBI findings on the doctor’s

testimony about the victim’s hematoma. Nonetheless, the People

contend that we can — and should — affirm the court’s SBI finding

on alternate grounds. Specifically, the People argue that there was

sufficient evidence to establish SBI based on the ER doctor’s

testimony that the victim experienced symptoms consistent with

having sustained a concussion. But whether an injury qualifies as

an SBI is a factual determination. People v. Baker, 178 P.3d 1225,

1233 (Colo. App. 2007). And we can’t make factual findings.

Carousel Farms Metro. Dist. v. Woodcrest Homes, Inc., 2019 CO 51,

¶ 19, (“[A]ppellate tribunals don’t (and, indeed, can’t) make findings

of fact.”).

¶ 37 Harris doesn’t challenge the sufficiency of the evidence

supporting the court’s remaining elemental findings. And because

we’ve determined the evidence wasn’t sufficient to support the

court’s SBI finding, the People request remand for entry of

judgment of conviction and resentencing on the lesser included

offense of third degree assault. See People v. Rigsby, 2020 CO 74,

¶ 34 (third degree assault is a lesser included offense of second

degree assault); People v. Thompson, 529 P.2d 1314, 1316 (Colo.

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1975) (third degree assault is a lesser included offense of second

degree assault where the only difference between the greater and

the lesser offense is the degree of injury). Harris concedes that this

is the appropriate remedy, and we agree.

¶ 38 Accordingly, we reverse the judgment of conviction for second

degree assault, and we remand the case to the trial court with

directions to enter a judgment of conviction for third degree assault

and to resentence Harris on that conviction.

IV. Harris’s Challenge to the Constitutionality of Colorado’s
Habitual Offender Statute

¶ 39 Because we conclude that the trial court must reverse Harris’s

second degree assault conviction and resentence him on remand for

the third degree assault conviction — a class 1 misdemeanor — we

don’t address Harris’s constitutional challenge to the habitual

offender statute, which is only implicated when the offense for

which a defendant is convicted is a felony. See § 18-1.3-801(2)(a)(I);

Thomas v. People, 2021 CO 84, ¶ 60; see also Mulberger v. People,

2016 CO 10, ¶ 23 (Gabriel, J., concurring in the judgment) (noting

that the “cardinal principle of judicial restraint” is deciding no more

than is necessary (quoting PDK Lab’ies Inc. v. U.S. Drug Enf’t

18
Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring

in part and concurring in the judgment))).

V. Disposition

¶ 40 The judgment of conviction for second degree assault is

reversed. The case is remanded to the trial court to enter a

judgment of conviction for third degree assault and to resentence

Harris on that conviction.

JUDGE DUNN and JUDGE HARRIS concur.

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