Peo v. Kim

23CA2000 Peo v Kim 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2000
Arapahoe County District Court No. 22CR388
Honorable Michelle Jones, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Geoffrey S. Kim,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE BERNARD*
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 17, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Law Office of Keyonyu X O’Connell, Keyonyu X O’Connell, 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 A jury found defendant, Dr. Geoffrey S. Kim, guilty of

attempted reckless manslaughter and obstruction of telephone

service. He appeals. We affirm.

I. Background

¶2 On August 1, 2019, the victim went to defendant’s surgical

center for cosmetic surgery. A certified registered nurse

anesthetist, who worked for defendant, gave her a combination of

drugs — midazolam, fentanyl, and propofol — to sedate her for the

surgery.

¶3 Shortly after the victim received these drugs, her heart

stopped beating. Within a minute, the anesthetist ventilated her,

and defendant began performing chest compressions. Although her

heart rate returned quickly after that, the victim remained

comatose.

¶4 At trial, the anesthetist and a nurse testified that, after the

victim’s heart rate returned, surgical staff repeatedly asked

defendant to call 911 for emergency care. The nurse testified that

defendant either ignored the requests or said that the victim would

“wake up in [his operating room].” The anesthetist testified that he

did not feel he could “override [defendant’s] decision.” During this

1
time, defendant and his staff repeatedly assured the victim’s

mother, who had accompanied the victim to the surgical center,

that the victim was “fine.”

¶5 The anesthetist finally called 911 about six hours later. One

of the emergency medical technicians who came to the surgical

center testified that defendant told him the 911 call had been

placed “during [the] time that they were doing [cardio-pulmonary

resuscitation]” on the victim.

¶6 The victim did not regain consciousness after being

transferred to the hospital. She died fourteen months later.

¶7 The prosecution charged defendant with having committed

three crimes: criminally negligent homicide in violation of section

18-3-105, C.R.S. 2024; reckless manslaughter in violation of

section 18-3-104(1)(a), C.R.S. 2024; and obstruction of telephone

service in violation of section 18-9-306.5, C.R.S. 2024. The jury

convicted him of attempted reckless manslaughter, a lesser

included offense of the manslaughter charge, and obstruction of

telephone service.

2
II. Analysis

¶8 For the purposes of our discussion, we group defendant’s

contentions into four categories based upon how they interrelate.

¶9 First, he submits that the court erred when it admitted

irrelevant evidence and that the prosecution committed misconduct

by prosecuting defendant while knowing the elements of the

charged crimes were not supported by admissible evidence.

¶ 10 Second, he contends that the prosecution committed

misconduct by allowing witnesses to commit perjury and by making

improper arguments in closing argument.

¶ 11 Third, he asserts that the court erred when it instructed the

jury on a lesser included offense, when it violated his confrontation

clause rights by excessively limiting cross-examination, and when it

denied his request for partial transcripts.

¶ 12 Fourth, he submits that the prosecution presented insufficient

evidence to support his conviction for obstruction of telephone

service contrary to section 18-9-306.5(1).

A. Standard of Review

¶ 13 We review the trial court’s evidentiary rulings for an abuse of

discretion. People v. Quillen, 2023 COA 22M, ¶ 14. We apply the

3
same standard to defendant’s submissions that the prosecution

engaged in misconduct, that there was insufficient evidence to

support an instruction on a lesser included offense, and that the

court erred when it denied his request for partial transcripts. See

People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010); People v.

Abdulla, 2020 COA 109M, ¶ 11; People v. Dunlap, 124 P.3d 780,

817 (Colo. App. 2004). “A trial court abuses its discretion when its

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

misconstrues or misapplies the law.” People v. Vigil, 2024 COA 72,

¶ 19.

¶ 14 We review de novo whether the court applied the correct legal

standard when evaluating the prosecutor’s request to instruct on a

lesser included offense, whether it violated defendant’s

confrontation clause rights by excessively limiting cross-

examination, and whether sufficient evidence supported a

conviction. See Abdulla, ¶ 11; People v. Houser, 2013 COA 11,

¶ 57; People v. Liebler, 2022 COA 21, ¶ 14.

¶ 15 When an assertion is unpreserved, we will reverse only if the

defendant establishes that any error was plain, meaning there is

“(1) an error, (2) that is obvious, and (3) that so undermines the

4
fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” Cardman v. People,

2019 CO 73, ¶ 19. An error is obvious if the action challenged on

appeal contravenes a clear statutory command, a well-settled legal

principle, or Colorado case law. Id. at ¶ 34. To decide whether an

error undermines a conviction to the point that we have serious

doubts about its reliability, we ask whether “a reasonable possibility

exists that [any error] . . . contributed to [the] conviction.” Id. at

¶ 39 (citation omitted).

B. Inadmissible Evidence

¶ 16 Defendant contends that we must vacate his conviction for

attempted reckless manslaughter because all the evidence

presented at trial to support it was inadmissible. Relatedly, he

asserts that the prosecution’s pursuit of the charged offenses,

knowing that they were supported only by what he characterizes as

inadmissible evidence, was prosecutorial misconduct. We disagree

with both contentions.

1. Additional Facts

¶ 17 At trial, the parties presented conflicting evidence about what

caused the victim’s death.

5
¶ 18 The prosecution’s theory was that defendant’s delay in

transferring the victim to the hospital was “the reckless cause of

[the victim’s] death.” Accordingly, the prosecution presented

evidence showing the following:

• The medically appropriate step for a doctor to take after a

patient suffers cardiac arrest in a clinic like defendant’s is

to transfer her to a better-equipped facility for advanced

care.

• Defendant’s own protocols required him to call 911 “as soon

as” a patient suffered a cardiac arrest.

• “There is no medical basis” for “do[ing] nothing” after a

patient “sustains an out-of-hospital but in-healthcare-

facility cardiac arrest.”

• Transferring the victim to a hospital “would have given her

the most improved chance of survival.”

• Defendant’s hours-long refusal to call 911 and arrange for

the victim’s transfer to a hospital after she suffered cardiac

arrest was “reckless” and represented “a gross deviation

from the standard of care that a reasonable person . . .

would exercise.”

6
¶ 19 The defense theorized that the cause of the victim’s death was

the dosage of anesthesia administered by the anesthetist.

Defendant presented evidence that the anesthetist “overdosed . . .

[the victim’s] sedation,” particularly the fentanyl, which caused

irreversible brain damage that, in turn, led to her cardiac arrest.

He also presented testimony that the outcome would not have been

different even if defendant had immediately called 911.

2. Discussion

¶ 20 “Only relevant evidence is admissible.” People v. N.T.B., 2019

COA 150, ¶ 15; CRE 402. Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than

it would be without the evidence.” CRE 401. To prove homicide or

manslaughter, the prosecution must prove that a “defendant’s

conduct was the actual cause of death, in the sense that it began a

chain of events the natural and probable consequence of which was

the victim’s death.” People v. Saavedra-Rodriguez, 971 P.2d 223,

225 (Colo. 1998).

¶ 21 Defendant contends that the prosecution presented “no

evidence that [defendant’s] conduct began the chain of events”

7
leading to the victim’s death. Instead, he asserts, “all evidence

presented” supported the theory that defendant’s failure to get

timely help was “an intervening/contributory cause of death” rather

than the actual cause. As a result, he finishes up, all the evidence

introduced in support of the prosecution’s theory was irrelevant and

inadmissible.

¶ 22 But defendant’s assertion ignores a critical piece of the

prosecution’s theory of the case: It argued, supported by evidence,

that the victim had not suffered irreversible brain damage at the

point when defendant restarted her heart by performing chest

compressions. Under this theory, it was not the anesthesia that

caused her eventual death; rather, it was defendant’s decision to

“wait[] on the injury, allow[] the injury to languish, [and] fail[] to get

any type of appropriate aid.” In other words, the prosecution did

not argue that defendant was an intervening or contributing cause

of the victim’s death; it argued that defendant was the actual cause

of her death.

¶ 23 The prosecution’s evidence was relevant to prove this theory,

and we therefore conclude that the court’s decision to admit it was

not manifestly arbitrary, unreasonable, or unfair and that its

8
decision did not misconstrue or misapply the law. See Vigil, ¶ 19.

For example, the prosecution offered testimony that defendant did

not immediately call 911 and, moreover, instructed his staff not to

do so, despite their multiple requests, and presented evidence that

the victim’s chances of survival would have increased had she been

quickly transferred to the hospital. This testimony made it more

likely that defendant’s failure to promptly transfer the victim to the

hospital was the cause of her death. We recognize that the defense

presented conflicting evidence on this point, but it does not make

the prosecution’s evidence irrelevant; it merely creates a triable

issue of fact to be resolved by the fact finder. See People v. Perez,

2016 CO 12, ¶ 25 (“When conflicting evidence exists, the jury must

be allowed ‘to perform its historic fact-finding function.’”)(citation

omitted).

¶ 24 Because we conclude that the challenged evidence was

admissible, we must, as a logical extension of that conclusion,

likewise reject defendant’s assertion that the prosecution committed

misconduct by prosecuting a case it knew was “unsupported by

admissible evidence.”

9
C. Jury Instructions

¶ 25 Defendant next submits that the court erred by instructing the

jury (1) on the lesser included offense of attempted reckless

manslaughter over his objection and (2) about impossibility. We are

not persuaded.

1. Applicable Law

¶ 26 A defendant may be convicted of a lesser offense that consists

of “an attempt to commit . . . the offense charged.” Crim. P. 31(c);

see also § 18-1-408(5)(b), C.R.S. 2024. But, when an instruction on

such an offense is sought by the prosecution over the defendant’s

objection, People v. Cooke requires that the lesser included offense

be “(1) easily ascertainable from the charging instrument, and

(2) not so remote in degree from the offense charged that the

prosecution’s request appears to be an attempt to salvage a

conviction from a case which has proven to be weak.” 525 P.2d

426, 428-29 (Colo. 1974). This requirement is intended to

safeguard “the primacy of notice within the constitutional guarantee

of due process of law.” Id. at 428.

¶ 27 When a defendant’s objection to an instruction on a lesser

included offense rests on insufficient evidence to support it, as

10
opposed to lack of notice about the possibility of such an

instruction, “the trial court must . . . determine that there is a

rational basis for a verdict acquitting the defendant of the offense

charged and convicting him of the lesser included offense.”

Abdulla, ¶ 16; see also § 18-1-408(6). “Such a rational basis exists

when ‘there is some evidence, however slight, tending to establish

the lesser included offense.’” Id. at ¶ 13 (citation omitted).

2. Cooke Challenge

¶ 28 Defendant does not contest that attempted reckless

manslaughter is a lesser included offense of reckless manslaughter

or that it is therefore “easily ascertainable from the charging

instrument,” as demanded by the first prong of Cooke. 525 P.2d at

429; see also § 18-1-408(5)(b)(“A defendant may be convicted of an

offense included in an offense charged in the . . . information. An

offense is so included when . . . [i]t consists of an attempt . . . to

commit the offense charged . . . .”). Instead, defendant submits that

the court erred by instructing the jury on attempted reckless

manslaughter because it was an “attempt to salvage a conviction”

from a “weak case.” We conclude, for two reasons, that the court

did not abuse its discretion when it gave the jury this instruction.

11
¶ 29 First, the challenged lesser included offense, attempted

manslaughter, is not remote in degree from the offense charged.

See Cooke, 525 P.2d at 429. The charged offense was

manslaughter, a class four felony. § 18-3-104(2). Attempted

manslaughter is a class five felony. See § 18-2-101(4), C.R.S. 2024.

Given that these offenses were separated by just one degree, we

reject defendant’s assertion that the inclusion of the lesser was “so

remote in degree from the offense charged that the prosecution’s

request appears to be an attempt to salvage a conviction from a

case which has proven to be weak.” Cooke, 525 P.2d at 429.

¶ 30 Second, we do not agree that the prosecution’s case was weak.

True, the court noted that the case was “highly defensible.” But

there is a difference between “weak” and “highly defensible.” As

noted above, the prosecution presented considerable evidence that

defendant did not call 911 despite multiple requests from his staff

to do so, that his failure to do so was reckless and a gross deviation

from the standard of care a reasonable person would have

exercised, and that the victim’s chances of survival would have

increased had she been transferred to a hospital.

12
¶ 31 Last, to the extent that defendant submits that, under Cooke,

he had insufficient notice that the prosecutor would ask for a

factual or legal impossibility instruction, we decline to address this

submission because it is conclusory and undeveloped. See People

v. Venzor, 121 P.3d 260, 264 (Colo. App. 2005)(declining to review

issues that were presented in “a perfunctory or conclusory

manner”).

3. Abdulla Challenge

¶ 32 Defendant next contends that the trial court erred when, as

required by Abdulla, it did not make an explicit finding that there

was “a rational basis for a verdict acquitting the defendant of the

offense charged and convicting him of the lesser included offense.”

Abdulla, ¶ 16. We conclude that defendant did not preserve this

issue before the trial court and that any error was not plain.

¶ 33 Although we do not require talismanic language to preserve

arguments, “[p]arties must make objections that are specific enough

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

People, 2015 CO 16, ¶ 14. In this case, defense counsel objected to

the inclusion of the lesser included offense on due process grounds,

echoing language from Cooke. He did not cite Abdulla or object on

13
the grounds that there was no rational basis to acquit defendant of

the offense charged and convict him of the lesser included offense,

and he did not ask the court to make the Abdulla findings. We thus

conclude that defendant did not preserve this issue, so we will

analyze it to determine whether any error was plain.

¶ 34 We conclude that any error associated with the absence of

Abdulla findings did not “so undermine[] the fundamental fairness

of the trial itself as to cast serious doubt on the reliability of the

judgment of conviction.” Cardman, ¶ 19.

¶ 35 First, as we mentioned above, defendant’s theory of the case

was countered by the prosecution’s theory. While there was

evidence to support defendant’s theory, there was likewise evidence

to support the prosecution’s theory.

¶ 36 Second, we have already concluded that, although there was a

conflict in the evidence, the prosecution’s case was not “weak.”

¶ 37 Third, evidence supporting defendant’s theory provided a

rational basis for acquitting defendant of reckless manslaughter

and criminally negligent homicide because it supported a potential

jury verdict that it was the combination of drugs that the

anesthetist administered to the victim that caused her death. And

14
evidence supporting the prosecution’s theory provided a rational

basis for convicting defendant of attempted reckless manslaughter

because it raised the question of whether defendant’s long refusal to

contact emergency medical assistance, and the prospect that

quicker action could have averted the victim’s brain death, was a

substantial step in the chain of events that led to her death. See

People v. Thomas, 729 P.2d 972, 975 (Colo. 1986).

D. Impossibility Instruction

¶ 38 The court instructed the jury that factual or legal impossibility

was not a defense to the lesser included offense of attempted

reckless manslaughter. Defendant asserts that the court erred by

giving this instruction to the jury. We conclude that defendant did

not sufficiently develop this assertion, so we shall not consider it.

See People v. Stone, 2021 COA 104, ¶ 52 (appellate courts do not

address undeveloped arguments).

E. Confrontation Clause

¶ 39 Defendant next contends that the court violated his

confrontation clause rights by precluding him from confronting the

anesthetist and a prosecution expert with other act evidence

showing that the anesthetist had lied about a previous malpractice

15
suit on his application to work for defendant and with information

that the charges against the anesthetist had been dismissed in

exchange for his testimony. We disagree.

1. Applicable Law

¶ 40 A defendant has a constitutional right to confront and to

cross-examine witnesses about bias and impeachment evidence.

Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009); People v.

Taylor, 545 P.2d 703, 705 (Colo. 1976). But that right is not

absolute or unlimited. People v. McFee, 2016 COA 97, ¶ 56.

Instead, “[t]he scope and duration of cross-examination is under the

control of the trial court subject to well-established rules.” Merritt

v. People, 842 P.2d 162, 166 (Colo. 1992)(citing Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986)). For example, a trial court has

discretion to limit cross-examination “based on concerns about . . .

harassment, prejudice, confusion of the issues, the witness’ safety,

or interrogation which is repetitive or only marginally relevant.” Id.

2. Additional Facts

¶ 41 Before trial, defendant filed a notice of intent to present

extrinsic evidence of a prior civil wrongful death lawsuit that had

been filed against the anesthetist in 2007. Defendant stated that,

16
because the anesthetist had not disclosed this lawsuit in his

application to work for defendant, it was admissible under CRE

608(b) to attack the anesthetist’s character for truthfulness and

under CRE 404(b) to show absence of mistake or accident and

common scheme, pattern, and practice.

¶ 42 After a hearing, the court ruled that it would not admit the

evidence for three reasons. Initially, because defendant did not

make an offer of proof about the outcome of, testimony in, or

findings from the lawsuit, the court could not find “by a

preponderance of the evidence that the acts as alleged in fact

occurred.” Next, the court decided that testimony about the lawsuit

would have “a great tendency to muddle the issue before the jury

and would be more prejudicial than probative,” so it should be

excluded under CRE 403. Last, the court determined that the

evidence was inadmissible under CRE 404(b) because defendant

had not shown how the evidence established absence of mistake or

accident or common scheme, pattern, or practice.

¶ 43 During the trial, defense counsel asked the anesthetist during

cross-examination if he “reached an agreement with the DA’s office

to dismiss [his] charges in exchange for testifying.” The anesthetist

17
answered, “[N]o,” adding that his charges had been dismissed “once

they had questioned me and received my testimony and felt that

there [were not] grounds for the charges” and that the prosecution

had not asked him to testify in exchange for dismissing the charges.

¶ 44 At the trial’s end, defense counsel gave the court a copy of the

charges against the anesthetist and a proposed jury instruction

regarding the anesthetist’s credibility. The prosecution objected,

arguing both that defense counsel had not laid a foundation for the

instruction and that there was no legal basis in the record to admit

evidence of the anesthetist’s arrest. The court decided that it would

not read the proposed instruction to the jury.

3. Discussion

¶ 45 We conclude, for the following reasons, that the court did not

abuse its discretion when it precluded defendant’s other act

evidence and, further, that this decision did not violate defendant’s

Sixth Amendment confrontation rights.

¶ 46 Defendant contends that he should have been permitted to

cross-examine the anesthetist about whether he had been

dishonest on his job application to show that he had a character for

being untruthful. But, as the court found considering the evidence

18
that had, and had not, been admitted, defendant had not shown, by

a preponderance of the evidence, that the anesthetist had lied on

the application. See People v. Garner, 806 P.2d 366, 370 (Colo.

1991).

¶ 47 The court found, with support in the record, that defendant

had tendered a civil complaint, with no accompanying “offer of proof

as to the outcome of the suit, or any testimony or findings from the

suit.” It noted that defendant had not provided an “attributed

source of direct information for [the] allegation, such as a named

witness” or a “citation to medical records.” Finally, emphasizing

that it had “no information before it that [the anesthetist]

acknowledged liability in [the former] suit or any facts or findings”

from it, the trial court held that the evidence could not survive a

CRE 403 analysis because it would “muddle” the issues for the jury

and would be more prejudicial than probative.

¶ 48 Next, we disagree with defendant that the court excessively

limited cross-examination by precluding extrinsic evidence of the

anesthetist’s charges in this case. At the end of the trial, defense

counsel tendered a copy of the charges and the motion to dismiss

them without establishing a foundation for their admission, and

19
counsel did not cite any legal authority to support the request to

admit them. While the motion to dismiss noted that the anesthetist

had agreed to testify against defendant, the motion did not state

that the charges against him had been dismissed as a quid pro quo

in exchange for his testimony. Perhaps most importantly, the court

stated that defense counsel could nonetheless say during closing

argument that the jury could infer that the charges had been

dismissed in exchange for the anesthetist’s testimony, but counsel

did not make such an argument.

¶ 49 Finally, we note that defense counsel cross-examined the

anesthetist in detail, and defendant’s expert and one of the

prosecution’s experts said they believed that the anesthetist had

mis-dosed the victim, thus causing her cardiac arrest.

¶ 50 So the jury heard the gist of defendant’s theory of the case:

• The jury learned that the anesthetist had originally been

charged with crimes in this case and that the prosecution

had later dismissed those charges.

• Impeachment of the anesthetist about the lawsuit involving

him would have added little to defendant’s theory of the

20
case, particularly because defense counsel’s information

about the lawsuit was so sketchy.

• Impeachment of the anesthetist with evidence that the

charges against him had been dismissed would have had

slight impact considering that defendant could not show

that the charges had been dismissed in exchange for his

testimony and considering that the court allowed him an

opportunity, which he declined, to argue that there was an

inference that the charges had been dismissed for that

reason.

¶ 51 And impeachment of the anesthetist with the limited

information about the lawsuit and the dismissal of the charges

against him would not have had a significant effect on his testimony

that defendant did not want to transfer the victim to the hospital for

hours after she had been revived. Not only did the nurse

corroborate the anesthetist’s testimony, but defendant did not

present any evidence that he wanted the victim transported to the

hospital earlier than she was.

21
F. Denial of Request for Transcripts

¶ 52 Defendant contends that the court erred when it denied his

request for transcripts to support a C.A.R. 21 petition that he

intended to file in our supreme court. He adds that the court’s

ruling denied his rights to effective assistance of counsel and to due

process. We disagree, albeit on different grounds than the trial

court used when it denied defendant’s request. See Million v.

Grasse, 2024 COA 22, ¶ 29 (The court of appeals “may affirm a trial

court’s judgment on any basis supported by the record.”). We

conclude, for reasons that we explain next, that the trial court did

not err when it denied defendant’s request for partial transcripts.

¶ 53 Before sentencing, defendant asked for transcripts to

accompany a C.A.R. 21 petition. When defendant was told the

entirety of the trial would not be transcribed within the requested

timeframe, he asked for “partial transcripts.” The transcription

company said that it would not provide partial transcripts because

they could be “taken out of context.”

¶ 54 Later, counsel asked the court for partial transcripts so that

counsel could challenge (1) the court’s ruling on defendant’s motion

for a judgment of acquittal; (2) some of the jury instructions; (3) the

22
court’s rulings about questions the jurors asked during

deliberations; and (4) the court’s ruling on the renewed motion for a

judgment of acquittal. The court denied this request as “improper,”

reasoning that the use of partial transcripts “would not allow for a

complete understanding of the issues presented at trial and later

ruled upon.”

¶ 55 C.A.R. 21 authorizes relief when “an appellate remedy would

be inadequate, a party may suffer irreparable harm, or a petition

raises an issue of first impression that has significant public

importance.” People v. Howell, 2024 CO 42, ¶ 5 (quoting People v.

Seymour, 2023 CO 53, ¶ 16); see also C.A.R. 21(a)(1). We conclude

that, because the issues that defendant wanted the supreme court

to review in his potential C.A.R. 21 petition have now been resolved

in this appeal or could have been raised in this appeal, defendant

cannot make the required showing that an appellate remedy would

be inadequate.

G. Perjured Testimony

¶ 56 Defendant asserts that the prosecution committed misconduct

because it knew it was presenting perjured testimony from the

anesthetist and from an investigator. Defendant did not raise this

23
issue at trial, so he did not preserve it. We conclude, for the

following reasons, that there was no error, and, even if there were,

any error was not plain. (The prosecution submits that, because

defense counsel was present when these witnesses testified and did

not object, defendant waived this issue. Based on the existing

record, we cannot conclude that counsel was aware of the alleged

perjury when it occurred or that counsel then made an intentional

decision to remain silent instead of objecting. See People v. Rediger,

2018 CO 32, ¶ 39 (waiver is the intentional relinquishment of a

known right).

¶ 57 A person commits perjury in the first degree if, in an official

proceeding, the person “knowingly makes a materially false

statement, which the person does not believe to be true, under an

oath required or authorized by law.” People v. Schupper, 140 P.3d

293, 296 (Colo. App. 2006); see also § 18–8–502(1), C.R.S. 2024. “It

is fundamental that prosecutors may not present or allow perjured

testimony.” People v. Medina, 260 P.3d 42, 48 (Colo. App. 2010).

¶ 58 To establish that a prosecutor suborned perjury, “the

defendant must show that (1) the prosecutor’s case included

perjured testimony; (2) the prosecutor knew or should have known

24
of the perjury; and (3) the perjury was material,” meaning “there

[wa]s any reasonable likelihood that the false statements could have

affected the jury’s judgment.” People v. Valera-Castillo, 2021 COA

91, ¶ 42. The first two prongs of this test are “heavily fact

dependent” and “normally cannot be resolved from a cold trial

record.” Medina, 260 P.3d at 48.

¶ 59 Defendant first contends that the prosecution suborned

perjury by allowing the anesthetist to testify at trial that “he felt he

could not call 911” despite the prosecutor’s knowledge that the

anesthetist had an independent duty to call 911. But the

anesthetist did not testify that he had no duty to call 911 — he

testified that he “felt” he could not call 911. And we cannot

determine from the cold record before us whether the anesthetist

perjured himself when he made this comment and, if so, whether

the prosecution knew or should have known of the perjury. See id.

¶ 60 Next, defendant submits that the prosecution allowed the

anesthetist to commit perjury by testifying that “as he understood

it,” his charges were dismissed because the prosecution felt “there

[were not] grounds for charges” rather than in exchange for his

testimony. In support of this submission, defendant points to the

25
prosecution’s motion to dismiss the charges against the anesthetist,

which reads:

[The district attorney] respectfully moves the
Court to dismiss COUNTS ONE and TWO in
the above captioned case, and as grounds
therefore states as follows:

1. Further prosecution of the above counts are
no longer in the interests of justice because
the prosecution has received additional
evidence and interviews since the filing of the
case. After consulting with one of their expert
witnesses about the new information, the
People do not believe they can proceed on
either charge as they would be unable to prove
one or more of the elements beyond a
reasonable doubt.

2. Additionally, this defendant has proffered
his testimony and has agreed to testify against
the co-defendant . . . .

¶ 61 The statements in this motion are not sufficient to establish

that the prosecution knowingly allowed the anesthetist to perjure

himself. The motion does not state that his charges were dismissed

in exchange for his testimony; it states that his charges were

dismissed because the prosecution believed it could not prove the

charges beyond a reasonable doubt. Consistently with what we

hold above, we conclude that defendant has not made the requisite

26
showing that the anesthetist perjured himself when he made this

comment. See id.

¶ 62 Finally, defendant contends that the prosecutor allowed an

investigator to knowingly perjure herself when she testified

incorrectly that the prosecution had charged the anesthetist only

with reckless manslaughter rather than with criminally negligent

homicide and with manslaughter. But defendant has not shown

that the investigator did not believe this statement to be true. The

investigator’s testimony was not material because the jury knew,

from the beginning of the trial, that defendant had been charged

with criminally negligent homicide and because criminally negligent

homicide is a lesser included offense of manslaughter. People v.

Medina, 51 P.3d 1006, 1014 (Colo. App. 2001), aff’d sub nom. Mata-

Medina v. People, 71 P.3d 973 (Colo. 2003).

H. Misconduct in Closing Arguments

¶ 63 Defendant asserts that the prosecutor committed misconduct

by making improper comments during closing argument. We

conclude, for the following reasons, that there was no error, and,

even if there were, it was not plain.

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1. Applicable Law

¶ 64 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct during closing arguments. Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). First, we determine

whether, based on the totality of the circumstances, the

prosecutor’s behavior was improper. Id. Second, we determine

whether the challenged actions warrant reversal under the proper

standard of review. Id. In making these determinations, we may

consider the language used, the context of the statements, the

strength of the evidence, whether the prosecutor improperly

appealed to the jurors’ sentiments, whether the misconduct was

repeated, and any other relevant factors. Liebler, ¶ 51.

2. Discussion

¶ 65 Although defendant cites multiple alleged errors in the

prosecutor’s closing arguments, he did not contemporaneously

object to any of them. We will therefore reverse only if any putative

error was plain.

¶ 66 First, defendant submits that the prosecutor improperly

vouched for the anesthetist’s testimony when she made the

following statements in closing argument:

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I want to talk to you a little bit about [the
anesthetist’s] credibility. He never tried to
mislead any other medical professional. He
constantly and consistently offered the truth.
He took ownership of the medications that he
provided, he made detailed records of
everything that happened in the [operating
room], and he only left [the victim’s] side
briefly one time several hours after that
cardiac event.

(Emphasis added.)

¶ 67 It is indeed the law that prosecutors may not vouch for the

credibility of witnesses by communicating their opinion “on the

truth or falsity of [witness] testimony during closing argument.”

Wilson v. People, 743 P.2d 415, 419 (Colo. 1987). And it is also true

that “the ‘determination of the credibility of witnesses is solely

within the province of the jury.’” People v. Vanderpauye, 2021 COA

121, ¶ 49 (quoting People v. Gonzales, 666 P.2d 123, 128 (Colo.

1983)), aff’d, 2023 CO 42.

¶ 68 But, even if this comment were error, we conclude that it did

not undermine the fundamental fairness of the trial to the point

that it cast serious doubt on the conviction’s reliability, see

Cardman, ¶ 19; in other words, there was not a reasonable

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possibility that this putative error contributed to the conviction, see

id. at ¶ 39.

¶ 69 The prosecutor did not repeat the comment or unduly

emphasize it. See People v. McBride, 228 P.3d 216, 225 (Colo. App.

2009)(finding reversible error where the prosecutor’s “plainly

improper arguments” were “pervasive”). Defense counsel cross-

examined the anesthetist at length. And the trial court instructed

the jury that counsels’ arguments were not evidence.

¶ 70 Second, defendant asserts that the prosecutor improperly

expressed personal opinions and impermissibly vouched for the

credibility of the prosecution’s expert, as compared to the defense’s

expert, when she said:

So let’s talk about the [d]efense expert. Now,
this is true of all the experts, and we talked
about this at jury selection. You guys get to
decide what to use or disregard of every expert.

Well, first of all, compare the fees in this case.
You heard the [d]efense expert did 20 to 40
hours at $400 an hour, $16,000. Now, I’m not
saying he — that colored his — his testimony
or he wasn’t being honest, but that’s going to
have an effect on anyone when you’re
considering what their motives are and their
biases and what things they’re going to talk
about.

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¶ 71 We conclude that this comment was not error, let alone plain

error. Although prosecutors cannot communicate their opinions on

the truth or falsity of witness testimony during closing argument,

they are free to “point to circumstances that raise questions or cast

doubt on a witness’ testimony and draw reasonable inferences from

the evidence as to the credibility of witnesses.” Liebler, ¶ 58. With

this particular argument, the prosecutor did just that. But she also

clarified that “[the jury] get[s] to decide what to use or disregard of

every expert,” and that she “[was] not saying that [the fee]

colored . . . his testimony or [that] he wasn’t being honest.”

Compare McBride, 228 P.3d at 223 (prosecutor’s remarks framing

expert as “hired gun” who was “full of it” and who, in return for fee,

“made up” testimony that was “garbage” necessitated reversal), with

People v. Rhea, 2014 COA 60, ¶ 71 (prosecutor’s references to an

expert as a “hired gun” and “professional witness” did not

necessitate reversal as they were “much less flagrant” and “brief

and isolated”)(citation omitted).

¶ 72 Third, defendant suggests that the prosecution relied on a

legal opinion from a medical expert that the court had ruled

inadmissible. During the medical expert’s testimony, the expert

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said that the anesthetist “shouldn’t be charged with a crime”

because “his conduct was not medically reckless or medically

knowing or medically purposeful.” Defense counsel objected, and

the court instructed the jury that they should disregard the expert’s

testimony about whether the anesthetist had committed any

crimes, but it could consider his opinion that the anesthetist had

not been medically reckless or purposeful.

¶ 73 In closing argument, the prosecutor said:

And you did hear some testimony about how
[the anesthetist] was originally charged and his
cases were, ultimately, dismissed. But you
also heard from [the medical expert] exactly
why that was.

¶ 74 This argument may have been somewhat ambiguous because

it left open the possibility that it was referring to the expert’s legal

opinion. But the prosecutor did not expressly refer to the expert’s

legal opinion, and any reference to the expert’s medical opinion was

fair game. The court had instructed the jury not to consider the

expert’s legal opinion, so it is reasonable to believe that the jury

would consider the prosecutor’s argument as referring to the

expert’s medical opinion. And, to the extent that the jury may have

understood this argument to refer to the expert’s legal opinion, such

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a reference was not overt and was not repeated or emphasized, and

thus, there is not a reasonable possibility that this error

contributed to defendant’s convictions. See Cardman, ¶ 39.

¶ 75 Fourth, defendant contends that the prosecutor improperly

implied there were facts that were not in the evidence by arguing

that defendant “tried to bury the evidence” and that defendant

“delayed [the] possibility” of “go[ing] back in time” to know “exactly

what happened.” But “[f]inal argument may properly include the

facts in evidence and any reasonable inferences drawn therefrom.”

Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo.

2005)(emphasis added).

¶ 76 The prosecutor’s argument referred to such reasonable

inferences based on the following evidence in the record. For

example, the prosecution presented evidence that defendant

delayed getting emergency care for the victim and that, during the

six-hour delay, he consistently informed the victim’s mother that

the victim was “fine,” even though he knew that she was not.

¶ 77 Fifth, we disagree with defendant that the prosecutor

misstated the law by arguing that, although the prosecution’s

medical expert could not say whether defendant was responsible for

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the victim’s death, the expert’s testimony did not “rule that out as a

possibility.” Then the prosecutor said: “You folks get to decide that,

not any of the doctors who testified, not any of the witnesses. It is

your prerogative, as the finders of fact, to decide if . . . [d]efendant is

solely responsible.” As we noted before, “the ‘determination of the

credibility of witnesses is solely within the province of the jury,’”

Vanderpauye, ¶ 49 (citation omitted), so this comment, focusing the

jurors on their role as fact finders, was not misconduct.

¶ 78 Sixth, defendant asserts that the prosecutor, at various times,

“inappropriately encourage[d] [the] jury to decide the case based on

emotion rather than on a rational assessment of the evidence.” We

decline to consider this contention because defendant does not

develop it with sufficient legal analysis. See People v. Wallin, 167

P.3d 183, 187 (Colo. App. 2007)(declining to consider conclusory

issues).

I. Insufficient Evidence to Support the Conviction for
Obstruction of Telephone Service

¶ 79 Defendant submits that there was insufficient evidence to

sustain his conviction for obstruction of telephone service contrary

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to section 18-9-306.5(1). We disagree, and we conclude that the

evidence was sufficient.

¶ 80 When a defendant makes a sufficiency challenge, we review

the record de novo “to determine whether the evidence presented is

sufficient both in quantity and quality.” Thomas v. People, 2021 CO

84, ¶ 10. In doing so, we consider “whether the 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.’” People v. Harrison, 2020 CO 57, ¶ 32 (citation omitted).

We must “give the prosecution the benefit of every reasonable

inference which might be fairly drawn from the evidence.” Perez,

¶ 25 (citation omitted).

¶ 81 A person commits obstruction of telephone service if he

“knowingly prevents, obstructs, or delays, by any means

whatsoever, the sending, transmission, conveyance, or delivery in

this state of any message, communication, or report by or

through . . . any telephone line.” § 18-9-306.5(1). “Obstruct”

means “[t]o make difficult or impossible; to keep from happening;

[or to] hinder.” Black’s Law Dictionary 1246 (12th ed. 2024).

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¶ 82 At trial, the prosecution presented evidence that defendant, as

the chief executive officer of the surgical center, was at the top of

the organizational chart and in charge of the operating room. Both

the anesthetist and the nurse testified that they or other members

of the surgical staff made multiple requests of defendant to call 911

during the six hours that the victim lay unconscious in the center.

He either ignored or rejected them. The anesthetist testified that,

because defendant was in charge, he did not feel he could “override”

defendant’s decisions.

¶ 83 Evaluating this evidence in the light most favorable to the

prosecution and giving the prosecution the benefit of every

reasonable inference which might be drawn from it, we conclude

that there was sufficient evidence for a jury to find that defendant

violated section 18-9-306.5(1) because he prevented his staff from

calling 911 to obtain emergency care for the victim.

¶ 84 The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.

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