Peo v. Smith

22CA1868 Peo v Smith 12-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1868
City and County of Denver District Court No. 21CR2721
Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alonzo D. Smith,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE BERGER*
Lipinsky and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 18, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy
State Public Defender, 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. 2025.
¶1 Defendant, Alonzo D. Smith, appeals the judgment of

conviction entered after a jury found him guilty of attempt to

commit second degree assault (serious bodily injury) and third

degree assault, both as acts of domestic violence.

¶2 First, Smith argues that reversal is required because the trial

court abused its discretion by allowing a police detective to tell the

jury that the victim’s inadmissible medical records were consistent

with the victim’s statements about her injuries. Second, Smith

contends that the trial court erred by admitting the victim’s

“irrelevant” medical record release form. Third, Smith claims two

instances of prosecutorial misconduct require reversal. Finally, he

argues that if these individual errors don’t require reversal, then he

must be granted relief under the doctrine of cumulative error.

¶3 We agree that the attempted second degree assault conviction

must be reversed based on Smith’s first contention regarding the

error in admitting the detective’s “consistency” testimony, but we

affirm the third degree assault conviction.

1
I. Facts and Procedural History

A. The August and November Incidents

¶4 Smith and the victim were “boyfriend, girlfriend” for about

three years, beginning in 2018. Near the end of their relationship,

they had two physical altercations. First, in August 2020, the

victim reported that Smith bit her finger, blocked her for “like two

seconds” as she was trying to get from her apartment to her car in

the garage, and hit her (the August incident).

¶5 Second, in November 2020, the victim reported that Smith

“tried to choke [her] and throw [her] over the third floor staircase”

and also “dislocated [her] arm” (the November incident). After each

incident, the victim sought medical treatment and reported the

assaults to police.

¶6 For the August incident, the prosecution charged Smith with

two counts of third degree assault and one count of false

imprisonment. For the November incident, the prosecution charged

Smith with one count of second degree assault (serious bodily

2
injury)1 and one count of third degree assault. All counts were

charged as acts of domestic violence and filed in the same

complaint.

B. The Discovery Violation and Sanction

¶7 Fourteen days before trial and nineteen days after the pretrial

conference, the prosecution endorsed a medical doctor as an expert

witness. Defense counsel objected, arguing that the prosecution

had been required to disclose the expert no later than the date of

the pretrial conference. Defense counsel requested sanctions for

the disclosure violation. The prosecution responded that the doctor

“would be called to testify that he treated the [v]ictim in this

case . . . and that [the victim] was suffering from a dislocated

shoulder.” The prosecution also said that it “would ask [the doctor]

to testify regarding his completion of the [serious bodily injury (SBI)]

form.”

¶8 Initially, the court didn’t impose any sanctions, but it set a

deadline for the prosecution to provide its expert disclosures to

1 The prosecution charged Smith under section 18-3-203(1)(g),

C.R.S. 2025 (“With intent to cause bodily injury to another person,
he or she causes serious bodily injury to that person or another.”).

3
defense counsel. When the prosecution failed to meet the deadline,

the court precluded the doctor from testifying at trial as a sanction.

¶9 Five days before the scheduled trial, the prosecution requested

leave to replace the second degree assault charge with a charge of

attempted second degree assault. The prosecution was forthright in

explaining this late amendment. The prosecution told the court

that the amendment was “due to the unavailability of the treating

physician for testimony in th[e] case.” The court allowed the

amendment.

C. Substitution of the Doctor’s Excluded Expert Testimony

¶ 10 During trial, the prosecution told the court that, because the

doctor wasn’t allowed to testify, the prosecution planned to offer the

entirety of the victim’s medical records from the November incident

into evidence through a detective under CRE 803(4). The court

rejected the proposition that all of the medical records were

admissible, but it reserved ruling on whether it would allow the

prosecution to admit portions of the victim’s medical records.

¶ 11 While Detective Tamara Lenherr was on the witness stand, the

court allowed the prosecution to introduce a document that showed

the victim gave law enforcement access to her medical records after

4
the November incident (the medical release form). Then, after

establishing that the detective had obtained the victim’s medical

records, the prosecution asked the detective, “What injuries did

those medical records reflect that the victim suffered?” Defense

counsel objected on multiple grounds, including hearsay. In

overruling the objection, the court ruled that the detective “could

testify about her understanding of . . . you know, the diagnosis or

the injuries of the diagnosis.”

¶ 12 The court then allowed the prosecution to ask Detective

Lenherr, “And when you received those medical records back, did,

were they consistent with what she [the victim] said?” The detective

answered, “Yes.” Defense counsel again objected, arguing that the

detective’s testimony “provides an inference” that the inadmissible

doctor’s opinion “was consistent with what [the victim,] with how

[the victim] described her injury.” After again overruling defense

counsel’s objection, the court allowed the prosecution to ask the

detective, “Were the statements in the [victim’s] medical records

consistent with what she told you about the injury, what the injury

was?” Detective Lenherr responded, “Yes, they were.” Defense

5
counsel again renewed his hearsay objection, which the court

“[n]oted for the record.”

D. Evidence of the November Incident

¶ 13 Other than the victim’s testimony, the only eyewitness

testimony the prosecution presented regarding the November

incident was that of a neighbor who lived next door to the victim at

the time. The neighbor told the jury that she heard banging and

then, through the peephole in her door, saw a man “slam” a woman

against a wall. When the neighbor opened her door, the man was

gone. The neighbor testified that she didn’t see the man try to

throw the victim over the balcony.

¶ 14 Regarding the victim’s injuries immediately after the fight, the

neighbor told the jury, “Her shoulder, her arm, she couldn’t, she

couldn’t use it.” The victim testified that, at a hospital emergency

room, “[t]hey popped [her] arm back into place and gave [her] a

sling.”

E. The Verdict

¶ 15 The jury acquitted Smith of all three counts related to the

August incident (two counts of third degree assault and false

imprisonment) but convicted Smith on the two counts related to the

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November incident (attempted second degree assault and third

degree assault).

II. Legal Principles

A. Standard of Review

¶ 16 A trial court enjoys broad latitude to determine the

admissibility of evidence. Davis v. People, 2013 CO 57, ¶ 13.

Accordingly, we give considerable deference to the trial court’s

determinations and review evidentiary rulings for an abuse of

discretion. Id. A trial court abuses its discretion if its decision is

manifestly arbitrary, unreasonable, or unfair, or if it misapplies the

law. People v. Ray, 2025 CO 42M, ¶ 19.

¶ 17 We review preserved, nonconstitutional errors for harmless

error. Hagos v. People, 2012 CO 63, ¶ 12. An error is harmless if it

doesn’t substantially influence the jury’s verdict or affect the

fairness of the trial proceedings. Ray, ¶ 20; see Crim. P. 52(a).

B. Attempted Second Degree Assault

¶ 18 Second degree assault, as applicable here, requires the

prosecution to prove that the defendant, with intent to cause bodily

injury to another, caused serious bodily injury to another. § 18-3-

203(1)(g), C.R.S. 2025. “Serious bodily injury” means

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bodily injury that, either at the time of the
actual injury or at a later time, involves a
substantial risk of death; a substantial risk of
serious permanent disfigurement; a
substantial risk of protracted loss or
impairment of the function of any part or
organ of the body; or breaks, fractures, a
penetrating knife or penetrating gunshot
wound, or burns of the second or third degree.

§ 18-1-901(3)(p), C.R.S. 2025.

¶ 19 Criminal attempt to commit assault in the second degree

requires the prosecution to prove that the defendant, with intent to

commit the crime of second degree assault, engaged in conduct

constituting a “substantial step” toward the commission of second

degree assault. § 18-2-101(1), C.R.S. 2025. A substantial step is

any conduct, whether act, omission, or possession, that is strongly

corroborative of the firmness of the actor’s purpose to complete the

commission of the offense. Id.

C. Third Degree Assault

¶ 20 Third degree assault requires the prosecution to prove that the

defendant knowingly or recklessly caused bodily injury to another

person. § 18-3-204(1)(a), C.R.S. 2025. “Bodily injury” means

“physical pain, illness, or any impairment of physical or mental

condition.” § 18-1-901(3)(c).

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III. The Detective’s Improper Testimony Requires Reversal of the
Attempted Second Degree Assault Conviction

¶ 21 As related above, the trial court allowed Detective Lenherr to

tell the jury that the victim’s statements about her injuries were

consistent with the information contained in the victim’s

inadmissible medical records. Defense counsel objected to this

testimony on numerous grounds both before and during the

detective’s testimony. The grounds on which defense counsel

objected included relevance, hearsay, and improper expert

testimony. Accordingly, despite the People’s argument to the

contrary, this contention is preserved.

¶ 22 The People appear to concede — and we agree — that the

court erred by allowing this multiple-level hearsay testimony.

“‘Hearsay’ is a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Hearsay is generally

inadmissible. CRE 802. At trial, the prosecution’s only argument

as to the admissibility of this evidence was that the victim’s medical

records were admissible under CRE 803(4). But, for good reasons,

the People don’t persist in this argument on appeal.

9
¶ 23 The medical records contain statements not only by the victim

regarding her medical situation and treatment, but also statements

by doctors, nurses, and others regarding the victim’s treatment, all

of which constitute inadmissible hearsay unless they all fall within

a recognized hearsay exception. The trial court correctly recognized

that the medical records did not fall within any recognized hearsay

exception.2 But the detective’s “consistency” testimony was

tantamount to her statement or opinion of what was contained in

the victim’s medical records and constituted inadmissible hearsay.3

The trial court erred in permitting the detective to so testify.

¶ 24 Having concluded that the court erred by allowing the

detective’s testimony, we turn to whether the error was harmless.

Ray, ¶ 20. To analyze harm, we may consider “factors like

evidentiary cross-admissibility, the appropriateness of jury

instructions, and whether there is any indication that the jury

2 We note that neither the prosecution at trial nor the People on

appeal argue that any of this hearsay was admissible because it
consisted of prior consistent statements of the victim. See CRE
801(d)(1)(b).

3 We need not address whether it also constituted improper expert

testimony because the evidence was inadmissible hearsay.

10
blended the issues in considering their verdict.” Washington v.

People, 2024 CO 26, ¶ 23.

¶ 25 The People argue that the detective’s “brief comment” was

minimally prejudicial “since overwhelming evidence supported the

jury’s findings of injury; the victim, the neighbor, and the

responding officer all described the victim’s injuries and the jury

saw multiple photos of the victim’s shoulder and neck.” But our

review of the record leads us to conclude otherwise. We cannot

confidently say that there is no reasonable probability that

Detective Lenherr’s consistency testimony didn’t contribute to

Smith’s conviction for attempted second degree assault. After all,

“‘a reasonable probability’ does not mean that it is ‘more likely than

not’ that the error caused the defendant’s conviction.” People v.

Casias, 2012 COA 117, ¶ 63. “Instead, it means only a probability

sufficient to undermine confidence in the outcome of the case . . . .”

Id.

¶ 26 We consider the entire record to determine whether an

evidentiary error was harmless. See Masters v. People, 58 P.3d 979,

1002-03 (Colo. 2002) (“If a reviewing court can say with fair

assurance that, in light of the entire record of the trial, the error did

11
not substantially influence the verdict or impair the fairness of the

trial, the error may properly be deemed harmless.” (quoting People

v. Gaffney, 769 P.2d 1081, 1088 (Colo. 1989))).

¶ 27 In considering the entire record, we first reiterate that the

prosecution did not comply with the court’s expert disclosure

requirements. Accordingly, the court properly precluded the expert

from testifying as a sanction for the disclosure violation. And then,

in two respects, the prosecutor attempted an end run around the

court’s disclosure and preclusion orders. First, the prosecutor

sought amendment of the longstanding second degree assault

charge. It was clear this was not an attempt crime; it was an

alleged completed crime. Second, even though the prosecution

replaced the second degree assault charge with a charge of

attempted second degree assault, the prosecutor presented evidence

of the effects of the completed crime. Putting improper evidence

before the jury suggesting that the victim actually suffered serious

bodily injury necessarily made it easier for the jury to find that

Smith took a substantial step toward causing serious bodily injury

to the victim.

12
¶ 28 Next, we consider the jury’s multiple questions regarding the

victim’s injuries and medical records. A juror submitted a question

to an officer who took photographs of the victim in the hospital after

the November incident: “Any medical records @ time of incident[?]”

Based on objections from both defense counsel and the

prosecution, the question was not asked. In addition, another juror

sought to ask the victim, “Any x-ray of arm or official report?” But

again, this question was not asked. A third juror question was

submitted to Detective Lenherr: “If any, what laboratory results

were obtained? See exhibit 12 [the medical release form] submitted

by the People.” Again, this question was objected to and not asked.

Further, during deliberations, the jury asked, “Does Charge 1

[attempted second degree assault] refer only to attempting to throw

the victim over the balcony?” As to this question, the court

responded, “In order to convict the defendant of Criminal Attempt to

Commit Assault in the Second Degree [for the November incident,]

you must either unanimously agree that the defendant committed

the same act or acts, or that he committed all of the acts alleged.”

These juror questions reveal that the jury “grapple[d]” with the very

evidence the court precluded the prosecution from offering. Castillo

13
v. People, 2018 CO 62, ¶ 65 (“And in fact, we know the jury did

grapple with the jury instructions regarding exceptions to self-

defense because the jury asked a question related to

provocation . . . .”).

¶ 29 We also reject the People’s argument that there was

overwhelming evidence of the victim’s injuries. The prosecution was

acutely aware of this weakness and was upfront about it when it

amended the complaint days before trial after being precluded from

calling the doctor to testify about the SBI form. Though no longer

needing to prove that the victim actually suffered serious bodily

injury, the prosecution nonetheless told the court that it would be

admitting the victim’s medical records through Detective Lenherr,

instead of through the doctor. And as analyzed above, the court

allowed the prosecution to do just that.

¶ 30 Finally, the prosecutor’s own actions at trial belie the People’s

argument on appeal that the errors were harmless. If the

detective’s “brief comment” hadn’t mattered, then the prosecutor

wouldn’t have relied on it during closing argument: “You heard from

Detective Lenherr that she got an SBI (serious bodily injury) form.

[The victim] completed a [medical release] form. There was a

14
medical release, and the contents of the medical records corroborated

her investigation.” (Emphasis added.)

¶ 31 For all these reasons, we conclude a reasonable probability

exists that the court’s error contributed to Smith’s conviction,

meaning a probability sufficient to undermine confidence in the

outcome of Smith’s conviction for attempt to commit second degree

assault. Accordingly, we reverse the attempt to commit second

degree assault conviction and remand that count for a new trial.

¶ 32 But we reach a different conclusion regarding the third degree

assault conviction. The prosecution’s burden to prove third degree

assault was substantially different than its burden on the

attempted second degree assault charge. To prove third degree

assault, the prosecution did not have to prove serious bodily injury.

Instead, the prosecution only had to prove that the victim suffered

some “physical pain” from the defendant’s actions. § 18-1-901(3)(c).

The evidence that the victim suffered some physical pain, which

included not only the neighbor’s testimony but also photos of visible

red marks on the victim’s neck, was overwhelming. Therefore, we

conclude that the error identified above was harmless with respect

to the third degree assault conviction.

15
IV. Smith’s Remaining Contentions Do Not Require Reversal of the
Third Degree Assault Conviction

A. The Medical Release Form

¶ 33 Smith contends that the trial court erred by admitting the

victim’s “irrelevant” medical release form. We disagree.

¶ 34 As previously discussed, during Detective Lenherr’s testimony,

the prosecution asked her whether she was able to obtain the

victim’s medical records related to the November incident. More

specifically, the trial court overruled defense counsel’s “relevance”

objection and allowed the prosecution to introduce into evidence an

“authorization for disclosure of protected health information” form

signed by the victim.

¶ 35 The medical release form shows that the victim had authorized

the hospital to disclose her medical records to law enforcement

officials. The form covers a period of three days and shows that the

victim specifically authorized the disclosure of three types of

information for those three days: her “[e]ntire [m]edical [r]ecord,”

her “[r]adiological [r]eports and films,” and her “[l]aboratory

[r]esults.”

16
¶ 36 Smith persists in his argument that the medical release form

was irrelevant. And, for the first time on appeal, Smith argues that,

even if the form was relevant, the danger of unfair prejudice

outweighed its probative value under CRE 403.

¶ 37 Only relevant evidence is admissible. CRE 402. Relevant

evidence is “evidence having 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. Relevant evidence may be excluded “if its

probative value is substantially outweighed by the danger of unfair

prejudice.” CRE 403.

¶ 38 We conclude that the medical release form was relevant to

show that the victim sought medical treatment after the November

incident. See CRE 401. Even if we were to assume, without

deciding, that it was error to admit the evidence under CRE 403,

any prejudice flowing from this unpreserved error does not require

reversal. See People v. Ujaama, 2012 COA 36, ¶¶ 36-38; Am. Fam.

Mut. Ins. Co. v. DeWitt, 216 P.3d 60, 66-67 (Colo. App. 2008)

(relevance objection does not preserve a CRE 403 objection), aff’d,

17
218 P.3d 318 (Colo. 2009); see also People v. Alfaro, 2014 CO 19,

¶ 8 (“[E]rror cannot rise to the level of plain error if it is harmless.”).

B. Prosecutorial Misconduct

¶ 39 Smith contends that the prosecution committed misconduct

when it “repeatedly called attention to inadmissible evidence”

(referring to the victim’s medical records). Relatedly, he contends

that the prosecutor’s improper comment in closing argument that

the jury “heard from Detective Lenherr that she got [a serious bodily

injury] form” requires reversal.

¶ 40 We apply a two-step analysis to claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

We first determine “whether the prosecutor’s questionable conduct

was improper based on the totality of the circumstances.” Id. If it

was improper, we then determine whether the misconduct warrants

reversal under the appropriate standard of reversal. Id. Because

Smith properly preserved his prosecutorial misconduct arguments

for appellate review, we apply the nonconstitutional harmless error

test when deciding whether reversal is required. See Davis, ¶ 13.

18
1. Repeatedly Calling Attention to Inadmissible Evidence

¶ 41 We agree with the premise of Smith’s argument, which is that

the prosecution repeatedly sought to elicit inadmissible evidence

regarding the victim’s medical records. However, because the

prosecution’s questions to Detective Lenherr were within the scope

of the trial court’s somewhat ambiguous rulings, we can’t conclude

that the prosecution committed misconduct. For example, when

the prosecution informed the court of its plan to admit the entirety

of the victim’s medical records into evidence through Detective

Lenherr, the court reserved ruling on whether it would allow the

admission of portions of the records.

¶ 42 Though, as we concluded in Part III, the court abused its

discretion in its later rulings admitting improper hearsay evidence,

we can’t conclude that the prosecution was acting improperly by

offering and then commenting on evidence the court ruled was

admissible. Cf. People v. Fortson, 2018 COA 46M, ¶ 14 (noting that

it is improper for prosecutors to purposefully ask a question that

they know will elicit an inadmissible answer).

19
2. Closing Argument

¶ 43 In closing argument, the prosecutor told the jury, “[W]e have

to prove that [Smith] committed a substantial step” toward the

elements of assault in the second degree. Then, after reading the

definitional instruction of serious bodily injury, the prosecutor said:

We heard about how when Officer Cao
responded . . . to the emergency room, he
could see that [the victim’s] shoulder . . . that
something was wrong with her shoulder. You
heard from Detective Lenherr that she got an
SBI form. [The victim] completed a HIPAA
form. There was a medical release, and the
contents of the medical records corroborated
her investigation.

¶ 44 Defense counsel objected. After a brief bench conference, the

court sustained defense counsel’s objection, struck the statement,

told the jury to “disregard the statement made about the medical

records,” and instructed the jury that it “may not consider that

statement for any purpose.”

¶ 45 As the People concede, the prosecutor “misspoke.” Because

we agree with this concession by the People, we turn to whether the

improper statement requires reversal of the third degree assault

20
conviction and conclude that it does not.4 Domingo-Gomez v.

People, 125 P.3d 1043, 1053 (Colo. 2005). For a few reasons, we

conclude that, in the context of the third degree assault claim, the

prosecutor’s improper statement was harmless.

¶ 46 First, the prosecutor’s improper argument didn’t significantly

risk a guilty verdict on the third degree assault charge based on

considerations other than the evidence presented at trial. See

Fortson, ¶ 67.

¶ 47 Second, the sustaining of defense counsel’s objection, along

with the trial court’s instruction to the jury to disregard

inadmissible evidence, sufficiently remedied the offending

argument. Indeed, the trial court immediately sustained defense

counsel’s objection and instructed the jury to disregard the

prosecutor’s argument. Absent evidence to suggest otherwise, we

presume that the jury followed the court’s instruction. Bondsteel v.

People, 2019 CO 26, ¶ 62.

4 As explained above, the detective’s improper “consistency”

testimony requires reversal of the attempted second degree assault
conviction.

21
C. Cumulative Error

¶ 48 Finally, Smith contends that the conceded and alleged errors

cumulatively require reversal. Although we identified two errors,

there is no reversible cumulative error given the overwhelming

evidence of guilt as to the third degree assault conviction. See

People v. Mendenhall, 2015 COA 107M, ¶ 82; see also People v.

Conyac, 2014 COA 8M, ¶ 152 (“[A]lthough we have found some

errors, because we do not perceive that they substantially

prejudiced defendant’s right to a fair trial, there is no reversible

cumulative error.”).

V. Disposition

¶ 49 Smith’s conviction for third degree assault is affirmed. His

conviction for attempted second degree assault is reversed, and the

case is remanded for a new trial on that count.

JUDGE LIPINSKY and JUDGE TAUBMAN concur.

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