People v. Perez-Rodriguez

COLORADO COURT OF APPEALS 2017COA77

Court of Appeals No. 14CA1175
Arapahoe County District Court No. 12CR2748
Honorable Gerald J. Rafferty, Judge
Honorable Christopher C. Cross, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rogelia Perez-Rodriguez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE BOORAS
Román and Fox, JJ., concur

Announced June 1, 2017

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Rogelia Perez-Rodriguez, defendant, appeals the judgment of

conviction and sentence entered on jury verdicts finding him guilty

on two counts each of aggravated incest, sexual assault on a child

by one in a position of trust as a pattern of conduct, and sexual

assault with the actor ten years older than the victim. We affirm.

I. Background

¶2 Defendant started dating A.S. and soon after moved in with

her. A.S. had several children from a previous marriage and had

three children with defendant during their relationship. J.H-S. was

one of A.S.’s children from a previous marriage and was around

eleven years old when defendant started dating A.S.

¶3 Although defendant and A.S. did not have a wedding ceremony

and were never formally married, they publicly referred to each

other as husband and wife. And while defendant never formally

adopted J.H-S., they publicly referred to each other as father and

daughter.

¶4 In the summer of 2012, when J.H-S. was fifteen years old,

defendant forced her to have sexual intercourse with him on two

separate occasions, one to two weeks apart. Defendant

impregnated J.H-S., and she delivered the baby approximately nine

1
months after the incidents. DNA testing confirmed that defendant

was the baby’s biological father.

¶5 After discovering she was pregnant, J.H-S. told her mother

what had happened, and police started an investigation. During

the investigation, a detective — through an interpreter —

questioned defendant. Defendant initially denied but then admitted

to having had sexual intercourse with J.H-S.

¶6 A jury convicted defendant on all counts, and the trial court

sentenced him to a life sentence with parole eligibility after twelve

years.

II. Issues

¶7 Defendant first contends that the aggravated incest statute is

unconstitutionally vague as applied. He next contends that the

aggravated incest instruction incorrectly instructed the jury that he

did not need to know that J.H-S. was his stepdaughter. Defendant

then alleges that the prosecution misstated the law on common law

marriage during rebuttal closing argument, thereby committing

reversible misconduct. Finally, defendant asserts that his

confession was involuntary because the interrogating officers made

implied promises of leniency and compassion, and therefore the

2
court erred in admitting the taped confession into evidence. We

examine each contention in turn.

III. Aggravated Incest Statute

¶8 Defendant contends that the aggravated incest statute is

unconstitutionally vague as applied to stepchildren of common law

marriages because common law marriage itself turns on a

multitude of factors and is not sufficiently defined by statute.

Defendant asserts, therefore, that when a couple is not formally

married, the statute fails to provide a standard by which the

accused may know whether the victim is his or her stepchild. We

do not agree.

A. Standard of Review and Applicable Law

¶9 We review de novo as-applied constitutional challenges to

statutes. People v. Trujillo, 2015 COA 22, ¶ 15. A statute may be

unconstitutional on its face or as applied. People v. Stotz, 2016

COA 16, ¶ 27. A statute is unconstitutional as applied if it does

not, with sufficient clarity, prohibit the conduct against which it is

enforced. Id.; see also Johnson v. United States, 576 U.S. ___, ___,

135 S. Ct. 2551, 2556 (2015). A defendant has the burden of

3
showing beyond a reasonable doubt that the statute is

unconstitutional as applied to him or her. Trujillo, ¶ 15.

¶ 10 When determining whether a statute is vague, we apply

common principles of statutory interpretation. Stotz, ¶ 28. First,

we look to the language of the statute itself and interpret statutory

terms in accordance with their commonly accepted meanings. Id.

If the plain language is unclear or ambiguous, we may look beyond

the words of the statute to legislative history or rules of statutory

construction. Id. Otherwise, we apply the statute as written. Id.

¶ 11 Defendant preserved this argument by asserting it at trial.

The trial court ruled that a common law marriage is the same as

any other type of marriage for purposes of the incest statute — the

only difference being how a common law marriage is proved.

B. Analysis

¶ 12 Colorado’s aggravated incest statute says:

(1) A person commits aggravated incest when
he or she knowingly:

(a) Marries his or her natural child or inflicts
sexual penetration or sexual intrusion on or
subjects to sexual contact, as defined in
section 18-3-401[, C.R.S. 2016], his or her
natural child, stepchild, or child by adoption,
but this paragraph (a) shall not apply when the

4
person is legally married to the stepchild or
child by adoption. For the purpose of this
paragraph (a) only, “child” means a person
under twenty-one years of age.

§ 18-6-302, C.R.S. 2016 (emphasis added).

¶ 13 The term “stepchild” is not defined by the statute, but is

typically defined as a child of one’s wife or husband by a former

marriage or relationship. See Webster’s Third New International

Dictionary 2237 (2002). Whether a person is a stepchild depends,

therefore, on whether or not the alleged stepparent and the child’s

biological parent are husband and wife.

¶ 14 “A common law marriage is established by the mutual consent

or agreement of the parties to be husband and wife, followed by a

mutual and open assumption of a marital relationship.” People v.

Lucero, 747 P.2d 660, 663 (Colo. 1987). The Lucero court

recognized that

in many cases express agreements will not
exist. The parties’ understanding may be only
tacitly expressed, and the difficulty of proof is
readily apparent. We have recognized that ‘the
agreement need not have been in words,’ and
the issue then becomes what sort of evidence
is sufficient to prove the agreement. We have
stated that if the agreement is denied or
cannot be shown, its existence may be inferred
from evidence of cohabitation and general

5
repute. In such cases, the conduct of the
parties provides the truly reliable evidence of
the nature of their understanding or
agreement.

Id. at 664 (footnote and citations omitted).

¶ 15 Defendant contends that, because common law marriage relies

on evidence of cohabitation and general repute, the aggravated

incest statute is too vague to provide an accused with a standard by

which he or she could know that a person is his or her stepchild or

any standard by which law enforcement can differentiate illegal

conduct from legal conduct.

¶ 16 But a lack of clearly defined terms is not fatal to a statute’s

constitutionality. See Posters ‘N’ Things, Ltd. v. United States, 511

U.S. 513, 525-26 (1994) (concluding that statute defining drug

paraphernalia by using specified, objective criteria for assessing

whether an item qualifies and containing a scienter requirement

was not unconstitutionally vague); Tiplick v. State, 43 N.E.3d 1259

(Ind. 2015) (holding drug statute constitutional because, despite

having multiple undefined terms, the statute contained a scienter

requirement and numerous factors to help determine the accused’s

intent); State v. Munson, 714 S.W.2d 515, 520 (Mo. 1986)

6
(upholding drug paraphernalia statute even though it relied on

nonexclusive enumerated factors).

¶ 17 Similarly, a statute is not rendered vague when the existence

of a statutory element is determined by balancing factors that are

not included in the statute. See State v. Campbell, 756 N.W.2d 263,

270-72 (Minn. Ct. App. 2008) (upholding breach of fiduciary

obligation where statute was admittedly broad and a factual

determination based on numerous factors was necessary, noting

that “[a]lthough the determination requires a judgment call, it is not

so inherently elusive that it is not reasonably ascertainable or that

it cannot be established beyond a reasonable doubt”). Common law

marriage may be shown through agreement or consent in

combination with a variety of factors, but the two most clearly

recognized are cohabitation and “a general understanding or

reputation among persons in the community in which the couple

lives that the parties hold themselves out as husband and wife.”

Lucero, 747 P.2d at 665. Furthermore,

Specific behavior that may be considered
includes maintenance of joint banking and
credit accounts; purchase and joint ownership
of property; the use of the man’s surname by
the woman; the use of the man’s surname by

7
children born to the parties; and the filing of
joint tax returns. However, there is no single
form that any such evidence must take.
Rather, any form of evidence that openly
manifests the intention of the parties that their
relationship is that of husband and wife will
provide the requisite proof from which the
existence of their mutual understanding can be
inferred.

Id. (emphasis added) (citation omitted).

¶ 18 There is, therefore, sufficient guidance through statute, case

law, and the plain meaning of “stepchild” so that a person in a

common law marriage has sufficient notice as to the prohibited

conduct of aggravated incest.

¶ 19 Defendant cites State v. Johnson, 695 N.W.2d 165, 178-80

(Neb. 2005) (Gerrard, J., dissenting),1 as an example of when an

aggravated incest statute was unconstitutionally vague. Johnson is

not persuasive because — in addition to being a dissenting opinion

— in that case, the term “minor” was defined differently throughout

Nebraska statutes, and there was no clear or definite way for the

defendant to determine what age would be applied to the aggravated

1Although the majority of justices agreed with the dissent,
Nebraska rules required more than a majority agreement to declare
a statute unconstitutionally vague. State v. Johnson, 695 N.W.2d
165, 173 (Neb. 2005).

8
incest statute. Id. Colorado cases set forth a test to be routinely

applied in determining whether a common law marriage exists.

This eliminates the danger of arbitrary application of inconsistent

definitions as was the case in Johnson.

¶ 20 We therefore conclude that Colorado’s aggravated incest

statute is not unconstitutionally vague as applied to those in a

common law marriage.

IV. Jury Instruction

¶ 21 Defendant next contends that the trial court’s elemental

instruction on aggravated incest failed to properly instruct the jury

on the scope of the mens rea required to sustain a conviction. We

perceive no error.

A. Standard of Review and Preservation

¶ 22 Defendant concedes that he did not raise any objection to the

elemental jury instruction, and he urges that it should be reviewed

for plain error. However, the People contend that because defense

counsel stated, “No, sir” when the trial court asked if there were any

further objections to Instructions 1 through 24, waiver or invited

error should entirely preclude review.

9
¶ 23 A waiver is “an intentional relinquishment of a known right or

privilege.” Moore v. People, 2014 CO 8, ¶ 9 (quoting People v. Curtis,

681 P.2d 504, 514 (Colo. 1984)). A closely related concept, invited

error, is based on the principle that “a party may not complain on

appeal of an error that he has invited or injected into the case; he

must abide by the consequences of his acts.” People v. Foster, 2013

COA 85, ¶ 25 (quoting Horton v. Suthers, 43 P.3d 611, 618 (Colo.

2002)).

¶ 24 Generally, defense counsel’s failure to make a

contemporaneous objection results in review under the plain error

standard. See People v. Miller, 113 P.3d 743, 749 (Colo. 2005).

Although sometimes referred to as a “waiver,” the complete failure

to object is more precisely a “forfeiture” of rights. See United States

v. Olano, 507 U.S. 725, 733-34 (1993) (“Waiver is different from

forfeiture. Whereas forfeiture is the failure to make the timely

assertion of a right, waiver is the ‘intentional relinquishment or

abandonment of a known right.’” (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938))).

¶ 25 In contrast, invited error typically requires more than the

simple failure to object. People v. Gross, 2012 CO 60M, ¶ 9 (where

10
error results from counsel’s oversight, appeal is not precluded by

the invited error doctrine); People v. Garcia, 1 P.3d 214, 219 (Colo.

App. 1999) (merely failing to object to an instruction does not

constitute “invited error”), aff’d, 28 P.3d 340 (Colo. 2001). Invited

error is sometimes referred to as a strategic error. But this does not

mean that the “strategy” must be competent or well planned. It

simply means that the action that results in invited error must be

deliberate rather than inadvertent. See Gross, ¶ 9. Thus, whether

analyzed as waiver or invited error, there must be intentional or

deliberate action in order to preclude plain error review.

¶ 26 In some cases, whether an attorney’s action is deliberate

rather than inadvertent may be adequately reflected by the record.

In other cases, the record may not be clear. See id. at ¶ 11 (invited

error where defense counsel argued affirmatively for an instruction

despite opposition by the prosecution). The question here then is

whether the record reflects a deliberate act or an inadvertent act.

¶ 27 To determine whether the statement “no objection” or even

silence should be characterized as either deliberate or inadvertent,

it is necessary to consider the objection or silence in the context of

its circumstances. See United States v. Anderson, 604 F.3d 997,

11
1001 (7th Cir. 2010) (examining a party’s state of mind to

distinguish forfeiture from waiver). For example, in Stackhouse v.

People, 2015 CO 48, the supreme court viewed counsel’s silence

after the trial court explained its reasoning for closing the

courtroom to the public as a waiver. Id. at ¶ 3. Similarly, in other

cases relied upon by defendant the circumstances established more

than just a response to a general inquiry:

 People v. Riley, 2016 COA 76, ¶ 15 (the defendant’s

request for a lesser nonincluded instruction at trial

invited the potential error that he would be convicted of

that offense on insufficient evidence).

 People v. Rediger, 2015 COA 26, ¶ 53 (finding waiver

where at conclusion of jury instruction conference,

counsel stated that “[d]efense is satisfied [with the

instructions]”) (cert. granted Feb. 16, 2016).2

 Foster, ¶¶ 29, 30 (finding invited error where defense

counsel agreed with the prosecutor’s statement that

2Counsel’s statement is similar to the statement “I am content,”
which was construed as an explicit withdrawal of counsel’s
previously proffered instruction in United States v. Hansen, 434
F.3d 92, 101 (1st Cir. 2006).

12
defendant’s prior conviction acted as a sentence

enhancer that should be decided by the court, and then

expressly asked the court, rather than the jury, to make

that finding).

 People v. Gregor, 26 P.3d 530, 533 (Colo. App. 2000) (the

defendant’s affirmative proposal with respect to one

instruction and acquiescence in two others invited error).

¶ 28 Assuming that the statement “no objection” was the response

to an inquiry about specific language or a specific instruction, the

circumstances might support deliberate conduct. But here, the

court’s inquiry grouped all twenty-four instructions. It is not clear

whether defense counsel’s blanket statement indicating “no

objection” reflected deliberate agreement with all the instructions or

was an inadvertent failure to object to the error defendant now

claims. Thus, under the circumstances of this case, the record

does not establish deliberate conduct sufficient to support invited

error or waiver. Accordingly we apply the plain error standard of

review.

13
B. Analysis

¶ 29 The trial court gave the following instruction regarding

aggravated incest:

The elements of the crime of Aggravated Incest
as applied to Counts 1 & 2 are:

1. That Mr. Perez-Rodriguez,
2. in the State of Colorado, at or about the date and
place charged,
3. knowingly,
4. subjected [J.H-S.] to sexual penetration or sexual
intrusion, and
5. [J.H-S.] was his stepchild, and
6. [J.H-S.] was under twenty one years of age.

¶ 30 Defendant contends that because the court included “and” at

the end of elements four and five, the “knowingly” mens rea applied

only to his act of subjecting J.H-S. to sexual penetration or sexual

intrusion, and not to whether he knew she was his stepchild.

¶ 31 Regardless of whether the instruction was erroneous, the

evidence that defendant knew J.H-S. was his stepdaughter was

overwhelming.

 Defendant referred to J.H-S. as his stepdaughter during

his interview with police, even going so far as to

distinguish the fact that he was not her biological father,

but her stepfather.

14
 Defendant referred to A.S., J.H-S.’s mother, as his wife

numerous times throughout the interview.

 A.S. referred to defendant as her husband, and she

testified that defendant introduced all of her children,

including J.H-S., as his own.

 J.H-S. also testified that she and defendant referred to

each other as father and daughter.

¶ 32 Here, the jury found that a marital relationship legally existed,

and there was no evidence that defendant did not understand a

parent-stepchild relationship existed between him and J.H-S.

Failure to properly instruct the jury is not plain error if the subject

of the error is not contested or if evidence of the defendant’s guilt is

overwhelming. Auman v. People, 109 P.3d 647, 665 (Colo. 2005).

¶ 33 We conclude, therefore, that even if the trial court erred in

giving the elemental instruction, such error was not plain error

because the evidence overwhelmingly showed that defendant knew

J.H-S. was his stepdaughter at the time of the incidents.

15
V. Prosecutorial Misconduct

¶ 34 Defendant asserts that the prosecutor committed reversible

misconduct in rebuttal closing by misstating the law on common

law marriage. We do not agree.

A. Standard of Review and Preservation

¶ 35 Because defendant did not object to the prosecutor’s

statements, we review only for plain error. Domingo-Gomez v.

People, 125 P.3d 1043, 1053 (Colo. 2005).

¶ 36 “Prosecutorial misconduct during closing arguments rarely

constitutes plain error that requires reversal.” People v. Nardine,

2016 COA 85, ¶ 63. “To warrant reversal, the misconduct must be

obvious and substantial and so undermine the fundamental

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

judgment of conviction.” Id. “Only prosecutorial misconduct which

is ‘flagrantly, glaringly, or tremendously improper’ warrants

reversal.” Id. (quoting Domingo-Gomez, 125 P.3d at 1053).

¶ 37 In reviewing a claim of prosecutorial misconduct we engage in

a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First we determine whether the prosecutor’s conduct was

improper based on the totality of the circumstances, and second,

16
we determine whether such actions warrant reversal under the

applicable standard, in this case, plain error. Id.

B. Analysis

¶ 38 Defendant’s primary defense at trial was that no common law

marriage existed between him and J.H-S.’s mother. The court gave

the following instruction regarding common law marriage:

In order for J.H.-S. to be [defendant’s]
step-daughter, you must find beyond a
reasonable doubt that a common-law marriage
existed between A.S. and [defendant]. A
common-law marriage is established by the
mutual consent or agreement of the parties to
be husband and wife, followed by a mutual
and open assumption and acknowledgement of
a marital relationship. Behavior that may be
considered by you in determining whether
there was a common-law marriage, includes
but is not limited to: Cohabitation, which is
holding forth to the world by the manner of
daily life, by conduct, demeanor, and habits,
that the man and woman have agreed to take
each other in marriage and to stand in the
mutual relation of husband and wife;
reputation, which means the understanding
among the neighbors and acquaintances, with
whom the parties associate in their daily life,
that they are living together as husband and
wife; maintenance of joint banking and credit
accounts; purchase and joint ownership of
property; the use of the man’s surname by the
woman; the use of the man’s surname by
children born to the man and woman; and the
filing of joint tax returns.

17
¶ 39 During closing argument, defense counsel discussed several of

the factors listed in the instruction, arguing that there was no

common law marriage because there was no joint banking account,

there was no joint property, A.S. did not use defendant’s surname,

and there was no evidence of joint tax returns.

¶ 40 During rebuttal, the prosecutor stated, regarding the common

law marriage instruction, as follows:

So what do we have here? And these
elements, as it says, “including but not limited
to,” that means you can find one and find
common law marriage, so long as that one is
proven beyond a reasonable doubt. You can
have more than one, and we do have more
than one. You have cohabitation. You have
them both saying that they are married; you
have her saying she was his husband — he
was her husband, and him saying she was his
wife.

¶ 41 Defendant contends on appeal that the prosecutor’s statement

misstated the law by implying that one factor alone was sufficient to

prove common law marriage, when the law requires evidence of

both cohabitation and reputation. Lucero, 747 P.2d at 664 (citing

Graham v. Graham, 130 Colo. 225, 227, 274 P.2d 605, 606 (1954)).

¶ 42 Although the prosecutor’s simple reference to “cohabitation,”

viewed in isolation, may have misstated the law, when viewed in

18
context as rebuttal to defendant’s arguments, we perceive no plain

error. The court’s instruction defined cohabitation as including an

agreement to be married, and it correctly stated the requirements of

common law marriage. The rebuttal argument merely emphasized

behavior that may be used to show mutual consent or agreement to

be husband and wife and a mutual and open assumption and

acknowledgment of a marital relationship.

¶ 43 Defendant does not contend that the instruction itself

misstated the law. When the prosecutor’s statement is viewed in

relation to the entirety of closing arguments and the instructions

given, we conclude that even if error occurred, it was not obvious

and substantial and it did not so undermine the fundamental

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

judgment of conviction.

VI. Confession

¶ 44 Finally, defendant asserts that his confession was involuntary

and that its admission violated his state and federal due process

rights. We do not agree.

19
A. Legal Principles

¶ 45 Defendant preserved his argument by filing a motion to

suppress the confession. The trial court held an evidentiary

hearing and denied the motion.

¶ 46 “A trial court’s ruling on a motion to suppress presents a

mixed question of fact and law.” People v. Cisneros, 2014 COA 49,

¶ 56. If the statements sought to be suppressed are recorded, we

independently review them to determine whether they should have

been suppressed. Id. “Because neither party contests the facts

that controlled the trial court’s determination whether to admit the

videotaped confession, we review its admission de novo.” People v.

Wickham, 53 P.3d 691, 694 (Colo. App. 2001).

¶ 47 A defendant’s statement must be voluntary in order to be

admissible. Jackson v. Denno, 378 U.S. 368, 376-77 (1964);

Cisneros, ¶ 80. Voluntariness is determined by the totality of the

circumstances. People v. York, 189 Colo. 16, 20, 537 P.2d 294, 296

(1975); Cisneros, ¶ 81. Threats and promises of leniency may be

considered in determining whether a statement was voluntary, but

they are not conclusive. Wickham, 53 P.3d at 695. “For such

threats and promises to render a confession involuntary, they must

20
have caused the defendant to confess, for example, where police

have promised leniency in exchange for a confession or have

threatened harmful consequences unless the defendant confesses.”

Id.

¶ 48 Other factors to consider include the following:

whether the defendant was in custody or was
free to leave and was aware of his situation;
whether Miranda warnings were given prior to
any interrogation and whether the defendant
understood and waived his Miranda rights;
whether the defendant had the opportunity to
confer with counsel or anyone else prior to the
interrogation; whether the challenged
statement was made during the course of an
interrogation or instead was volunteered;
whether any overt or implied threat or promise
was directed to the defendant; the method and
style employed by the interrogator in
questioning the defendant and the length and
place of the interrogation; and the defendant’s
mental and physical condition immediately
prior to and during the interrogation, as well
as his educational background, employment
status, and prior experience with law
enforcement and the criminal justice system.

Id. (quoting People v. Gennings, 808 P.2d 839, 844 (Colo. 1991)).

B. Additional Background

¶ 49 When defendant was taken into custody he was questioned for

approximately forty minutes by a detective and a translating officer.

21
The detective advised defendant of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966), in English and Spanish, and

defendant indicated that he understood his rights and signed a

waiver form. Defendant initially denied having had any sort of

sexual intercourse with J.H-S., but after approximately fifteen more

minutes, he confessed to it.

¶ 50 During the interrogation, the detective told defendant several

times that he did not believe defendant. The detective also told

defendant

people are going to watch this interview, to
include like judges and district attorneys, and
they are going to have to make a decision
based on whether you are being truthful or
not. If you’re truthful sometimes these folks
have some sort of level of compassion. But
when people lie it’s very bad for you.

The detective made similar remarks several times during the

interview before defendant admitted to the intercourse.

C. Analysis

¶ 51 During the interrogation, the detective never made a specific

threat or promise.3 At times he suggested that judges or

3We may conduct an independent review of the interrogation video.
See People v. Martin, 222 P.3d 331, 334 (Colo. 2010).

22
prosecutors may be more lenient on a defendant who they perceive

as being honest and who “took responsibility” for his actions. These

statements, however, do not promise any sort of leniency or

guarantee any special treatment. These facts are distinguishable

from those in cases like People v. Quintana, 198 Colo. 461, 601 P.2d

350 (1979), in which a sheriff promised the defendant that

if the defendant cooperated the sheriff would
do what he could to see that the defendant was
not unjustly accused of offenses he did not
personally commit, although the final decision
would be with the District Attorney and the
court; if the defendant would talk with the
sheriff and the undersheriff he might get
probation since he had a clean record, and he
might be released from custody that day; if he
talked, the sheriff would talk to the
defendant’s employer, the manager of the
Forbes Trinchera Ranch, about re-hiring him;
and, if the defendant waited to talk until
Monday, November 27th, he would have to
“face the music” with the rest of the
defendants.

Id. at 463, 601 P.2d at 351 (footnotes omitted).

¶ 52 Here, the alleged promises were merely conjectures that

prosecutors or judges may show leniency, and that the detective

was giving defendant an opportunity to take responsibility for his

actions. See Gimmy v. People, 645 P.2d 262, 268-69 (Colo. 1982)

23
(upholding trial court’s finding that confession was voluntary where

officer told defendant that he would recommend revoking

defendant’s sentence but ultimately the district attorney would

decide the consequences of defendant’s confession); People v. Joyce,

878 P.2d 48, 49-50 (Colo. App. 1994) (admission was voluntary

where interrogating officer “indicated that the defendant’s level of

cooperation would be reported to the district attorney’s office,

but . . . he made no threats or promises to the defendant”). As for

the detective’s statements that he did not believe defendant, we do

not perceive such statements as threatening or coercive.

¶ 53 Although defendant was detained and could not leave, he had

been advised of his Miranda rights and signed a waiver. As shown

in the videotaped interview, the body language of the detective and

defendant did not suggest any sort of hostility or threat, and the

interrogation was only about forty minutes long. Although

defendant is not highly educated, he did not seem overwhelmed by

his circumstances, and his physical appearance and mannerisms

did not suggest any sort of mistreatment or coercion rendering his

statements involuntary.

24
¶ 54 Based on the totality of the circumstances, we conclude that

defendant’s admission was voluntary and that the trial court did

not err in admitting it into evidence.

VII. Conclusion

¶ 55 For the forgoing reasons, we affirm the judgment of conviction.

JUDGE ROMÁN and JUDGE FOX concur.

25