Peo v. Lucero

18CA1454 Peo v Lucero 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA1454

Alamosa County District Court No. 17CR442

Honorable Michael A. Gonzales, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Danny Norman Lucero,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE DUNN

Dailey and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 21, 2021

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Danny Norman Lucero, appeals his judgment of

conviction after a jury found him guilty of second degree assault.

We affirm.

I. Background

¶ 2

In September 2017, Lucero went to the Alamosa Police

Department for an interview. At the end of the interview, Corporal

Jamie Coulson and Officer John Vasquez handcuffed Lucero and

led him through the station and out the back door to the parking lot

for transport to jail. It’s undisputed that Lucero had a bloody nose

(and some abrasions) by the time the group reached the police car,

and that Officer Vasquez ended up with blood spatter on his face.

But the parties disputed how those things happened.

¶ 3

According to the officers, as they escorted Lucero through the

station, he became increasingly agitated and swore at Officer

Vasquez. Then, while still handcuffed, Lucero squatted down,

flexed his arms, and stiffened his hands. This movement caught

Officer Vasquez’s wrist in the handcuff chain. And it’s undisputed

Officer Vasquez’s wrist was injured; the jury saw a photograph of

the injury. To release Officer Vasquez’s wrist, the officers testified

that they lifted Lucero and “put him up against” a locker.

2

¶ 4

Once Officer Vasquez’s wrist was released, the officers

escorted Lucero out of the building to Corporal Coulson’s police car

(over Lucero’s continued resistance). The officers explained that

they then opened the car door, turned Lucero around so that he

was facing them, and sat him down. As Lucero was scooting to the

back of the seat, both officers said that he spat at Officer Vasquez,

splattering blood and saliva on the officer’s face.

¶ 5

At trial, Lucero’s counsel offered a different version of events.

Defense counsel posited that, in response to Lucero’s aggressive

tone and language, the officers became physical and slammed

Lucero into a wall, causing him to bleed. As to the blood on Officer

Vasquez, defense counsel argued that Lucero sneezed, and, because

he had a bloody nose, the sneeze resulted in the blood spatter on

Officer Vasquez’s face. Defense counsel contended that the officers,

realizing they had injured Lucero and that there would be

consequences, “used [the blood on Officer Vasquez] as their way

out” — to make it “look like” Lucero was the aggressor.

¶ 6

In addition to other charges not relevant here, the People

charged Lucero with second degree assault for spitting on Officer

Vasquez. The jury found Lucero guilty but determined that the

3

assault occurred while Lucero was “acting upon a provoked and

sudden heat of passion” (reducing the conviction from a class 4

felony to a class 6 felony).

¶ 7

Lucero appeals his conviction, arguing that (1) insufficient

evidence supports it; (2) the failure to preserve surveillance video

showing the parking lot violated his due process rights; (3) the trial

court erred by failing to disclose any records from Officer Vasquez’s

internal affairs file; (4) the trial court abused its discretion by

allowing Officer Vasquez to give expert testimony in the guise of lay

testimony; and (5) the trial court erred by refusing to instruct the

jury on the affirmative defense of self-defense.

¶ 8

We perceive no reversible error and therefore affirm the

judgment of conviction.

II. Second Degree Assault

¶ 9

The prosecution charged Lucero with second degree assault

under section 18-3-203(1)(f.5)(I), C.R.S. 2020. A person is guilty

under that statute if,

[w]hile lawfully confined in a detention facility

. . . a person with intent to infect, injure,

harm, harass, annoy, threaten, or alarm a

person in a detention facility whom the actor

knows or reasonably should know to be an

4

employee of a detention facility, causes such

employee to come into contact with blood . . .

[or] saliva . . . including but not limited to

throwing, tossing, or expelling such fluid or

material.

(Emphasis added.)

¶ 10

For purposes of this statute, a detention facility includes “any

building, structure, enclosure, vehicle, institution, or place . . .

where persons are or may be lawfully held in custody or

confinement.” § 18-3-203(1)(f.5)(III)(A). Lawfully confined, however,

is not defined.

¶ 11

Lucero contends that the prosecution presented insufficient

evidence to prove either (1) that he was “lawfully confined in a

detention facility” at the time of the assault or (2) that Officer

Vasquez was an “employee of a detention facility.”

¶ 12

We review de novo whether sufficient evidence was presented

to sustain a conviction. People v. Perez, 2016 CO 12, ¶ 8. In doing

so, we must determine whether the evidence, when viewed in the

light most favorable to the prosecution, was substantial and

sufficient to support a conclusion by a rational jury that the

defendant was guilty beyond a reasonable doubt. Id.

5

¶ 13

When a sufficiency claim depends on our interpretation of a

statute, we also review that issue de novo. McCoy v. People, 2019

CO 44, ¶ 37. Our primary task in construing a statute is to

ascertain and give effect to the General Assembly’s intent. Id. To

do that, we begin with the statute’s plain language. People v.

Huckabay, 2020 CO 42, ¶ 13. If the language is clear and

unambiguous, we apply it as written, construing the words and

phrases according to the rules of grammar and common usage. See

id.; accord McCoy, ¶ 37.

A. Lawfully Confined

¶ 14

Lucero doesn’t dispute that he was in custody when he spat

on Officer Vasquez. But he argues that “lawfully confined” means

something different than “in custody.” Additionally, because “he

was in the process of being placed in” the police car when he

assaulted Officer Vasquez, Lucero contends he was not confined “in

a detention facility” when the assault occurred.

¶ 15

We start with Lucero’s argument that confinement and

custody are different for purposes of subsection (f.5). To get there,

Lucero relies on People v. Olinger, 39 Colo. App. 491, 566 P.2d 1367

(1977). That case also involved a defendant who spat on a police

6

officer while in (or near) a police car and was convicted of second

degree assault. Construing an older, different version of the second

degree assault statute, Olinger concluded that “lawfully confined”

had a narrower meaning than “in custody.” Id. at 493, 566 P.2d at

1368.

¶ 16

But Olinger is not helpful for a couple of reasons. First, it’s

unclear exactly where the defendant in Olinger was when he

assaulted the officer. The case suggests the defendant was not in

the police vehicle and that, instead, the assault occurred outside

the police car; thus, the defendant was not confined. See id. at 492,

566 P.2d at 1367-68 (describing assault occurring as the defendant

“was taken out of the police car”). But, in any event, the second

degree assault statute has since been amended, and two divisions

of this court have construed the current statute more broadly to

include confined individuals who are “under arrest.” See People v.

Luna, 2013 COA 67, ¶¶ 29, 31; see also People v. Miller, 97 P.3d

171, 173 (Colo. App. 2003).

¶ 17

Luna is particularly instructive. There, the jury convicted the

defendant of second degree assault for spitting on a police officer

while the defendant was seated in the back of a police car. On

7

appeal, the Luna division determined that any ambiguity in the

term “lawfully confined” was clarified by the broad statutory

definitions of “detention facility” and “employee of a detention

facility.” Luna, ¶¶ 29, 31. Considering these two definitions and

the legislative history of subsection (f.5), the Luna division

concluded that a defendant under arrest and in a patrol vehicle is

“lawfully confined” for purposes of subsection (f.5). Id. at ¶ 32; see

also Miller, 97 P.3d at 174 (quoting legislators’ statements that

subsection (f.5) was intended to apply “not just” to prisoners but

also to those “arrested” and “in the back of” a police car) (citation

omitted). Because we are persuaded Luna correctly interpreted

subsection (f.5), we decline Lucero’s request that we interpret

“lawfully confined” to exclude someone who is “in custody” and

confined in a police vehicle.

¶ 18

Lucero next tries a different approach and says that, because

he was “in the process” of being placed in the police car — and, in

his view, not fully in the car when he spat on Officer Vasquez — the

evidence was insufficient to show he was “in a detention facility.”

But Corporal Coulson testified that Lucero was handcuffed, in the

backseat, and “scooting his butt into the back of the seat” when the

8

assault occurred. And both officers testified the parking lot was a

“secured facility” surrounded by a wall and fence and not accessible

by the public. From this evidence, a reasonable juror could

conclude that Lucero was lawfully confined in the police car (or in

the enclosed, secure parking structure) when the assault occurred.

See Luna, ¶ 32; see also § 18-3-203(1)(f.5)(III)(A) (defining a

detention facility broadly to include a “vehicle” and any “structure,

enclosure, . . . or place”). We therefore conclude that the

prosecution presented sufficient evidence that Lucero was lawfully

confined in a detention facility when he assaulted Officer Vasquez.

B. Employee of a Detention Facility

¶ 19

We likewise reject Lucero’s argument that the People provided

insufficient evidence that Officer Vasquez was an employee of a

detention facility.

¶ 20

An “employee of a detention facility” includes

employees of the department of corrections,

employees of any agency or person operating a

detention facility, law enforcement personnel,

and any other persons who are present in or in

the vicinity of a detention facility and are

performing services for a detention facility.

§ 18-3-203(1)(f.5)(III)(B).

9

¶ 21

Although Lucero agrees Officer Vasquez qualifies as law

enforcement personnel, he contends that “law enforcement

personnel” is limited by the next clause: “who are present in or in

the vicinity of a detention facility and . . . performing services for a

detention facility.” Thus, according to Lucero, law enforcement

personnel must be at a detention facility or nearby and performing

services for the facility to qualify as an “employee of a detention

facility.”

¶ 22

Though we doubt that Lucero’s interpretation is correct, see

Luna, ¶ 31 (noting that law enforcement personnel are employees of

a detention facility for the purposes of the second assault statute),

even if we accept his interpretation, the prosecution presented

sufficient evidence for the jury to find that Officer Vasquez qualified

as an “employee of a detention facility.” Officer Vasquez testified

that he was employed by the Alamosa Police Department and was

assisting Corporal Coulson with placing Lucero in the police car (a

detention facility under the second degree assault statute) for

transport to jail (also a detention facility). From this, a reasonable

jury could conclude that, while helping put Lucero in the police car,

Officer Vasquez was “present in or in the vicinity of a detention

10

facility and . . . performing services for a detention facility.” § 18-3-

203(1)(f.5)(III)(B).

¶ 23

And although Lucero points out that his actions also fit under

a different subsection of the second degree assault statute, section

18-3-203(1)(h), that doesn’t change anything. After all, the

prosecution has discretion to determine what charges to file when a

defendant’s conduct violates more than one statute. § 18-1-408(7),

C.R.S. 2020. Here it exercised that discretion by charging Lucero

under subsection (f.5).

¶ 24

We thus conclude that sufficient evidence supports Lucero’s

conviction for second degree assault.

III. Surveillance Video

¶ 25

Lucero next contends that the court erred by denying his

motion to dismiss the second degree assault charge as a sanction

for the failure to preserve video surveillance footage. We are

unpersuaded.

A. Background

¶ 26

At the preliminary hearing, Officer Vasquez testified that, in

addition to a camera in the interview room, there were cameras in

the police parking lot. When asked if he had obtained the footage

11

from the parking lot, Officer Vasquez said he hadn’t because it was

dark and he didn’t think the video “was going to show anything.”

But he said the footage was saved.

¶ 27

However, when Lucero filed a subpoena seeking the video

footage from the parking lot (about four months after the

preliminary hearing), he learned it had been automatically purged.

Lucero then moved to dismiss the second degree assault charge as

a sanction for the failure to preserve the footage, which he asserted

“would have been exculpatory.”1

¶ 28

At the hearing on Lucero’s motion, the Alamosa police chief

confirmed there were “two cameras in the parking area,” but, by the

time he received the subpoena seeking the footage, no videos before

2018 remained. When asked about this, the chief explained that

the surveillance system automatically purged videos after about a

month and a half. He also testified that, although the outside

cameras “may have” captured “a small piece” of what happened, it

was unlikely the cameras would’ve captured the relevant

1 Lucero also contended that the prosecution’s failure to produce

the video footage violated its disclosure obligations. The trial court

rejected this argument, and Lucero doesn’t re-raise it on appeal.

12

movements based on the location of the outside cameras and his

understanding of where the police car was parked.

¶ 29

The trial court denied the motion, finding that Lucero hadn’t

established the video surveillance had exculpatory value or that the

State acted in bad faith in purging the video.

B. Analysis

¶ 30

To establish a due process violation for failure to preserve

exculpatory evidence, the defendant must demonstrate that (1)

state action destroyed the evidence; (2) the evidence had

exculpatory value that was apparent before the state destroyed it;

and (3) the defendant could not obtain comparable evidence by

other reasonably available means. People v. Braunthal, 31 P.3d

167, 173 (Colo. 2001).

¶ 31

If the evidence was not apparently exculpatory before it was

destroyed but was only “potentially useful,” the defendant must

show that the state acted in bad faith when it destroyed the

evidence to obtain relief. See Arizona v. Youngblood, 488 U.S. 51,

58 (1988); People v. Abdu, 215 P.3d1265, 1270 (Colo. App. 2009).

¶ 32

Here, the evidence doesn’t show that the surveillance footage

contained apparently exculpatory value before it was purged. At

13

most, the evidence shows that the cameras “may have” captured a

“small piece” of the events, but, based on the locations of the

outdoor cameras and the police car, it’s unlikely the cameras

“would have captured any of the movements.” Without any

evidence that the outside cameras captured the interaction between

Lucero and the officers, or what the footage would have shown,

Lucero wasn’t able to demonstrate that the footage had exculpatory

value that was apparent before it was purged. See Abdu, 215 P.3d

at 1270; see also Braunthal, 31 P.3d at 174-75 (the burden is on

the defendant to establish that evidence had apparent exculpatory

value when it was destroyed). Even assuming — as Lucero

contends — that the missing footage was potentially useful to his

defense, he didn’t establish that the police department acted in bad

faith. Youngblood, 488 U.S. at 58 (concluding that the destruction

of potentially useful evidence — that is, not apparently material and

exculpatory evidence — constitutes a due process violation only

when it’s done in bad faith); accord Abdu, 215 P.3d at 1270. The

evidence showed only that the surveillance footage was

automatically purged as part of the system’s routine functioning.

See Abdu, 215 P.3d at 1270 (There was no bad faith where

14

videotape was destroyed “automatically and not through any

deliberate decision to deprive defendant of evidence.”).

¶ 33

Officer Vasquez’s testimony that the video was saved as of the

preliminary hearing date doesn’t change the fact that the footage

was purged automatically. No evidence suggests the police

deliberately destroyed the footage. See Illinois v. Fisher, 540 U.S.

544, 548 (2004) (finding no due process violation where potentially

useful evidence was destroyed in normal course while a discovery

request was pending because there was no evidence of bad faith).

And even if the failure to save the surveillance video was negligent,

the negligent destruction of potentially useful evidence doesn’t

violate due process. Youngblood, 488 U.S. at 58; see also Fisher,

540 U.S. at 548.

¶ 34

For these reasons, we see no due process violation.

IV. Officer Vasquez’s Internal Affairs File

¶ 35

Before trial, Lucero asked the trial court to “order the release

and production” of Officer Vasquez’s internal affairs and personnel

file. Lucero specifically sought, among other things, any excessive

use of force complaints and records related to dishonesty and

untruthfulness.

15

¶ 36

After conducting an in camera review of Officer Vasquez’s file,

the trial court denied the request, finding “none of the documents”

were relevant to the case. Lucero now asks us to review Officer

Vasquez’s file to determine whether the court abused its discretion

by denying the motion. See People v. West, 2019 COA 131, ¶ 31.

¶ 37

Based on our independent and careful review of Officer

Vasquez’s internal affairs file, we agree that the file contains

nothing relevant to Lucero’s case. We therefore conclude that the

trial court didn’t abuse its discretion by denying Lucero’s request.

V. Lay Opinion Testimony

¶ 38

Next, Lucero contends that the trial court erred by allowing

Officer Vasquez to offer expert opinion in the guise of lay testimony.

We perceive no reversible error.

¶ 39

We review a trial court’s decision to admit lay opinion

testimony for an abuse of discretion. Venalonzo v. People, 2017 CO

9, ¶ 24. Where, as here, a defendant objected to the challenged

testimony, we review for harmless error and will reverse only if an

error substantially influenced the verdict or affected the fairness of

the trial. See Hagos v. People, 2012 CO 63, ¶ 12.

16

¶ 40

Though police officers may testify as lay witnesses “based on

their perceptions and experiences,” an officer’s testimony crosses

the line from lay to expert opinion when it is based on an officer’s

specialized skills or training. People v. Stewart, 55 P.3d 107, 123

(Colo. 2002); see also People v. Veren, 140 P.3d 131, 137 (Colo. App.

2005).

¶ 41

Officer Vasquez testified at trial about what happened the day

Lucero assaulted him, describing his interactions with, and

perceptions of, Lucero. Officer Vasquez also outlined his extensive

experience and training, including his training as a use of force

instructor. And referring to his use of force training, Officer

Vasquez described aspects of Lucero’s body language and actions

that he believed indicated Lucero was going to attack. He then

described Lucero’s actions in reference to “an OODA loop” — a term

from his training that describes the cycle that the brain goes

through “when you are going to make an action.” And he explained

how he engaged Lucero in conversation to essentially break

17

Lucero’s concentration.2 The court allowed this testimony over

defense counsel’s objection that it was improper opinion testimony.

¶ 42

Even if we assume that some aspects of Officer Vasquez’s

testimony crossed into the realm of expert evidence, we conclude

that any error in admitting the testimony was harmless for two

reasons.

¶ 43

First, the testimony was largely cumulative. The jury heard

extensive evidence of Lucero’s demeanor and actions. Indeed, it

was undisputed that Lucero was upset when the officers

handcuffed him and aggressive as they escorted him through the

police station to the parking lot. Corporal Coulson testified that he

requested Officer Vasquez’s assistance because he anticipated

Lucero would be upset that he was going to jail. He then explained

that as they escorted Lucero through the station, Lucero became

increasingly angry, swore at them, and physically resisted them.

2 Lucero also recites Officer Vasquez’s testimony that police officers

are trained to “verbalize everything” to their partners and why they

do so. But beyond recounting the testimony, Lucero doesn’t further

address it. To the extent he contends that was improper opinion

testimony, we decline to address this undeveloped argument. See

People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to

address arguments presented in a perfunctory or conclusory

manner).

18

¶ 44

Another witness present at the police station also described

Lucero as aggressive, swearing, and resisting as the officers

escorted him through the station. And in addition to this

testimony, the jury saw surveillance video showing the officers

handcuffing Lucero and, thus, were able to independently observe

and assess Lucero’s demeanor.

¶ 45

Second, the improper testimony was brief when compared with

Officer Vasquez’s proper testimony, which largely focused on what

he personally observed.

¶ 46

Given that the improper testimony was cumulative and brief,

we conclude that Officer Vasquez’s testimony was harmless. See

People v. Dominguez, 2019 COA 78, ¶ 77 (concluding that agent’s

improper expert testimony was harmless in part because it was

cumulative of other evidence); accord People v. Baird, 66 P.3d 183,

192 (Colo. App. 2002); see also People v. Mendenhall, 2015 COA

107M, ¶ 69 (stating that improper witness testimony was harmless

because, among other things, it was “brief and constituted a small

part of his testimony”).

19

¶ 47

We conclude any error in admitting the improper expert

opinion didn’t substantially influence the verdict or affect the

fairness of the trial.

VI. Self-Defense Jury Instruction

¶ 48

We also reject Lucero’s final contention that the trial court

erred by refusing to instruct the jury on the affirmative defense of

self-defense.

¶ 49

A defendant is entitled to an instruction on an affirmative

defense if he presents “some credible evidence” supporting it. § 18-

1-407(1), C.R.S. 2020. We review de novo whether sufficient

evidence supports a requested jury instruction. O’Shaughnessy v.

People, 2012 CO 9, ¶ 13.

¶ 50

Lucero asked the court to instruct the jury on self-defense. In

support of the instruction, Lucero pointed to evidence that he was

not bleeding when he arrived at the police station but was when he

left. He argued that this evidence established “a scintilla of

evidence” that he acted in self-defense and that he spat on Officer

Vasquez “to terminate the abuse that was being inflicted on him.”

The trial court disagreed, finding that “the quantum of evidence

necessary to allow this instruction” wasn’t met.

20

¶ 51

We agree with the trial court’s assessment. The only evidence

presented showed that Lucero was injured at some point when the

officers were attempting to extricate Officer Vasquez’s wrist from the

handcuff link. And Lucero doesn’t contend that he spat at Officer

Vasquez inside the police station or in response to the officers’

actions to free Officer Vasquez’s wrist. Instead, the evidence shows

that Lucero waited until he sat in the police car to assault Officer

Vasquez. Nothing in the record suggests that Lucero was defending

himself at that time or that he faced any imminent harm. See § 18-

1-704(1), C.R.S. 2020 (stating when a person is justified in using

self-defense); cf. People v. Suazo, 867 P.2d 161, 169 (Colo. App.

1993) (collecting definitions of “imminent” — “near at hand,

impending[,] or on the point of happening”; “likely to happen

without delay”; and “menacingly near”) (citations omitted).

¶ 52

We therefore conclude the trial court properly refused to

instruct the jury on self-defense.

VII. Conclusion

¶ 53

We affirm the judgment of conviction.

JUDGE DAILEY and JUDGE KUHN concur.