Peo v. Teague

21CA1579 Peo v Teague 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1579
City and County of Denver District Court No. 21CR47
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David A. Teague,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE TAUBMAN*
Tow, J., concurs
Dunn, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 24, 2025

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, 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. 2024.
¶1 Defendant, David A. Teague, appeals his convictions entered

on a jury verdict finding him guilty of first degree assault causing

serious bodily injury by means of a deadly weapon and menacing.

We affirm and remand for clarification of the mittimus.

I. Background

¶2 In September 2020, Slade Mills and his girlfriend, Lindsey

Rasmussen, were walking on South Broadway in Denver near their

apartment when a man, later identified as Teague, approached

them asking for help. Although Teague initially asked Rasmussen

to call 911, he changed his mind, asked her to call his sister

instead, and gave Rasmussen his sister’s phone number. Teague

then became agitated and told Rasmussen to delete his sister’s

phone number, which Rasmussen did.

¶3 After Rasmussen deleted the phone number, Teague lunged

toward Rasmussen, attempting to grab the phone. As Teague

lunged, Mills stepped between Rasmussen and Teague. Mills

dodged Teague’s first swing, but Teague lunged a second time and

hit Mills in the head. Teague was carrying a messenger or tool bag.

Mills saw an object fall to the ground after being struck in the head.

1
Rassmussen saw a screwdriver during the assault, and a neutral

eyewitness saw a screwdriver on the ground after the assault.

¶4 Mills and Rasmussen ran to a restaurant down the block,

where Mills collapsed on the ground just outside the front door and

several patrons came to his aid. Mills was transported to Denver

Health, received “quite a few” stitches, and stayed overnight.

¶5 Mills’s blood and Teague’s DNA were later found on the

screwdriver.

¶6 Police created a six-person photo array that included Teague’s

photo, but neither Mills nor Rasmussen could identify Teague with

absolute certainty in the days following the assault. However, both

identified Teague’s photo as one of two suspects from the photo

array.

¶7 The prosecution charged Teague with (1) attempted first

degree murder of Mills; (2) first degree assault of Mills; and (3)

felony menacing of Rasmussen. The jury acquitted Teague of

attempted murder but convicted him of first degree assault and

misdemeanor menacing. The trial court sentenced Teague to thirty

years in the custody of the Department of Corrections on the

assault conviction and six months in jail on the menacing

2
conviction. Due to either a recording error or malfunction with the

courtroom recording equipment, no transcript of the sentencing

hearing could be created.

II. Analysis

A. The Paramedic’s Testimony

¶8 Teague argues the trial court abused its discretion in allowing

lay opinion testimony of the paramedic who treated Mills because

he should have been qualified as an expert. Specifically, he argues

the paramedic offered a medical diagnosis without having been

qualified as an expert. We are not persuaded.

1. Standard of Review

¶9 We review a court’s evidentiary ruling regarding lay testimony

for an abuse of discretion. People v. Chavez, 190 P.3d 760, 765

(Colo. App. 2007). An abuse of discretion occurs when the trial

court’s ruling is manifestly arbitrary, unreasonable, or unfair. Id.

2. Analysis

¶ 10 Lay opinion testimony is limited to opinions that are

(1) rationally based on the perception of the witness; (2) helpful to a

clear understanding of the witness’s testimony or the determination

of a fact in issue; and (3) not based on scientific, technical, or other

3
specialized knowledge within the scope of CRE 702. If scientific,

technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise. CRE 702.

¶ 11 To determine whether an opinion is based on specialized

knowledge, we must determine whether ordinary citizens can be

expected to know the information provided or have the experiences

that form the basis of the witness’s opinion. People v. Rincon, 140

P.3d 976, 983 (Colo. App. 2005). Thus, we must consider whether

the opinion results from reasoning found during everyday life

experience or if the witness is offering testimony that could not be

offered without specialized experience, knowledge, or training.

Venalonzo v. People, 2017 CO 9, ¶ 2, 388 P.3d 868, 870-71; People

v. Ramos, 2012 COA 191, ¶¶ 12-13, 396 P.3d 21, 25. The basis for

the opinion is the crux of the inquiry.

¶ 12 Here, the responding paramedic testified that he felt bones

crunching when he pressed on Mills’s head wound. The trial court

overruled Teague’s objection that this was expert testimony

presented by a lay witness.

4
¶ 13 We are not persuaded that the trial court abused its discretion

by allowing the paramedic’s testimony. The paramedic testified

about his perception of Mills’s injury. Specifically, the paramedic

described what the wound looked like, its location, and what he felt

when he pressed on it. His perception was similar to what any

ordinary person could have perceived and described: “[The wound

was on] the top of his head,” “I remember seeing some blood from

the wound site,” and “I felt some bones crunching.”

¶ 14 Accordingly, the basis of the paramedic’s testimony was his

perception of the wound site, so he provided information that did

not depend on his expertise in the medical field. Thus, the trial

court did not abuse its discretion in allowing the paramedic’s

testimony as lay opinion.

B. Serious Bodily Injury and Deadly Weapon

¶ 15 Teague next contends that the trial court erred by concluding

that sufficient evidence supported the first degree assault elements

of serious bodily injury and use of a deadly weapon. We address

and reject each contention in turn.

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1. Standard of Review

¶ 16 An acquittal must be entered when the evidence is insufficient

to support a jury’s guilty verdict. People v. Cardenas, 2014 COA 35,

¶ 21, 338 P.3d 430, 433. We review the record de novo to

determine whether the evidence before the jury was sufficient in

both quantity and quality to sustain the conviction. Montes-

Rodriguez v. People, 241 P.3d 924, 927 (Colo. 2010); Dempsey v.

People, 117 P.3d 800, 807 (Colo. 2005). We “consider ‘whether the

relevant evidence, both direct and circumstantial, when viewed as a

whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

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

doubt.’” McCoy v. People, 2019 CO 44, ¶ 63, 442 P.3d 379, 392

(quoting Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)).

2. Serious Bodily Injury

¶ 17 Teague argues that the prosecution failed to prove Mills

suffered a serious bodily injury because the paramedic’s testimony

was insufficient to establish a serious bodily injury under the

statute. We are not persuaded.

6
¶ 18 As relevant here, the statute provides that serious bodily

injury is an injury that, “either at the time of the actual injury or at

a later time, involves a substantial risk of death . . . or breaks,

fractures, or burns of the second or third degree.” § 18-1-901(3)(p),

C.R.S. 2020.

¶ 19 Teague focuses on People v. Vigil, 2021 CO 46, 488 P.3d 1150,

where the supreme court held that the defendant did not suffer a

serious bodily injury because the victim’s neck stab wound did not

damage any vital structures. Id. at ¶ 38, 488 P.3d at 1157. The

Vigil court analyzed the victim’s injury under Stroup v. People, 656

P.2d 680 (Colo. 1982), where the supreme court held that the facts

of the actual injury control the risk of death, not the risk generally

associated with an injury. Id. at 685.

¶ 20 Teague’s reliance on Vigil’s analysis under Stroup is misplaced.

In Vigil, the evidence showed there was no substantial risk of death.

No such evidence exists here. In contrast, we focus on Mills’s

actual injury suffered and whether it created a break or fracture,

not whether his injury produced a substantial risk of death.

¶ 21 Here, Teague argues that the prosecution relied on the theory

that serious bodily injury occurred under the “breaks” or “fractures”

7
theory, but the prosecution did not present evidence of any broken

bones or fractures. However, the paramedic’s testimony that we

discussed above describing the injury as visible to the naked eye

and that he felt bones crunching was sufficient to support the

breaks and fractures statutory component. Further, Mills was

loaded onto a stretcher and spent the night in the hospital, where

he received “quite a few” stitches in his head.

¶ 22 In addition, Mills described that he blacked out after being

struck in the head. He also described how he felt “dizzy” and “just

collapsed on the ground” following the assault.

¶ 23 Different divisions of this court have held that serious bodily

injury “could be anything from a minor fracture to a substantial

risk of death.” People v. Tallwhiteman, 124 P.3d 827, 836 (Colo.

App. 2005); see also People v. Daniels, 240 P.3d 409, 410 (Colo.

App. 2009) (“[W]e conclude that any break or fracture is sufficient to

establish ‘serious bodily injury’. . . .”).

¶ 24 We acknowledge that this is a close call. But our supreme

court has said that the standard of review for sufficiency of the

evidence challenges is a “relatively lenient” one. Gorostieta v.

People, 2022 CO 41, ¶ 2, 516 P.3d 902, 903. Thus, taken in the

8
aggregate, and viewing the evidence in the light most favorable to

the prosecution, it was sufficient to conclude that Mills suffered a

serious bodily injury.

3. Deadly Weapon

¶ 25 Teague also argues the prosecution failed to prove beyond a

reasonable doubt that he used a screwdriver during the assault.

We disagree.

¶ 26 Under section 18-1-901(3)(e)(II), C.R.S. 2024, a deadly weapon

is any weapon, device, or instrument that, in the manner it is used

or intended to be used, can produce death or serious bodily injury.

Colorado employs a two-step inquiry to determine whether an object

is a deadly weapon. First, the object must be used or intended to

be used as a weapon. People v. Lee, 2020 CO 81, ¶ 24, 476 P.3d

351, 356. Second, the object must be capable of causing serious

bodily injury. Id.

¶ 27 Here, Teague argues that the prosecution’s evidence did not

show that the screwdriver was actually used in the assault as a

deadly weapon; rather, Teague contends that the evidence only

showed that it was found on the ground and thus Teague could

have simply dropped it.

9
¶ 28 Rasmussen testified that she saw the screwdriver in Teague’s

hand during the assault. Mills testified that he saw an object fall

out of Teague’s hand immediately after Teague struck his head.

Additionally, a neutral eyewitness testified that she saw the

screwdriver on the ground immediately following the assault. While

Teague argues that neither Mills nor Rasmussen could say for sure

that he or she saw the screwdriver before Teague used it to hit

Mills, the prosecution presented considerable evidence from which

the jury could infer that Teague struck Mills with the screwdriver.

The jurors were also instructed that they could consider both direct

and circumstantial evidence to reach their verdict. Accordingly,

this evidence, together with reasonable inferences from the

testimony, was sufficient for the jury to conclude that Teague used

a screwdriver to assault Mills.

¶ 29 Next, we must examine whether the screwdriver could cause a

serious bodily injury. Id. As discussed above, we have concluded

that Mills suffered a serious bodily injury. Mills testified that

Teague “threw a punch and [Mills] dodged that first one and then

out of nowhere a second swing and [Mills] felt this bam, right to the

side of [his] head and [Mills] went out, just completely out.” Teague

10
also did not dispute during trial that a screwdriver could cause

serious bodily injury. Thus, the above testimony and the

reasonable inferences from it sufficed to establish that the

screwdriver caused Mills’s head injury. Therefore, both Lee prongs

are satisfied, and the evidence supports the conclusion that the

screwdriver was used as a deadly weapon.

C. Rasmussen’s In-Court Identification

¶ 30 Teague next argues that the trial court violated his

constitutional rights by allowing Rasmussen to identify him for the

first time in court after not being able to positively identify him in a

prior lineup. We do not discern any constitutional violations.

1. Standard of Review

¶ 31 The constitutionality of an in-court identification procedure

presents mixed questions of fact and law. Bernal v. People, 44 P.3d

184, 190 (Colo. 2002). We review the trial court’s findings of fact

for clear error and its legal conclusions de novo. Id.

2. Analysis

¶ 32 A defendant is denied due process when an in-court

identification is based on an out-of-court identification that is “so

suggestive as to render the in-court identification unreliable.”

11
People v. Godinez, 2018 COA 170M, ¶ 56, 457 P.3d 77, 89 (quoting

People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003)). One-on-one

show-up identifications are not per se due process violations.

People v. Monroe, 925 P.2d 767, 773 (Colo. 1996). The exclusionary

rule has not been extended in Colorado to prohibit allegedly

suggestive in-court identifications simply because of the trial

setting. People v. Garner, 2015 COA 175, ¶ 13, 439 P.3d 4, 8.

Rather, it is the jury’s duty to assess the reliability of identification

evidence unless there is a substantial likelihood of

misidentification. Id.

¶ 33 One-on-one identification procedures are historically viewed

unfavorably because they tend to be suggestive. People v. Walker,

666 P.2d 113, 119 (Colo. 1983). However, an in-court identification

may be properly considered by the jury if it does not stem from a

constitutionally defective identification procedure. Garner, ¶ 19,

439 P.3d at 10; Monroe, 925 P.2d at 771.

¶ 34 Colorado follows the lead of other jurisdictions whose courts

hold that, with respect to first-time in-court identifications, “the

requirements of due process are satisfied in the ordinary

protections of trial.” Garner v. People, 2019 CO 19, ¶ 52, 436 P.3d

12
1107, 1117 (citation omitted). Colorado courts do not require

prescreening of in-court identifications when a witness has failed to

identify the defendant in a pretrial procedure. Id. at ¶ 65, 436 P.3d

at 1119. Here, as noted, Rasmussen failed to identify Teague at a

pretrial procedure. Additionally, during the in-court identification,

Teague objected to Rasmussen’s in-court identification. Further,

Teague’s counsel cross-examined Rasmussen about her in-court

identification. The court also gave the jurors an opportunity to ask

Rasmussen questions, and they elected to do so. Therefore, the

trial court’s procedures ensured that there was no likelihood of

misidentification.

¶ 35 Thus, under the totality of the circumstances and considering

the defense’s objection, its cross-examination, and the jury’s own

question regarding Rasmussen’s identification, the jury properly

considered the in-court identification. Therefore, the court did not

violate Teague’s due process rights when it allowed Rasmussen’s in-

court identification.

D. Prosecutorial Misconduct

¶ 36 Teague argues that the prosecutor committed reversible

misconduct in voir dire, opening statement, closing argument, and

13
rebuttal closing argument. While some of the prosecutor’s

statements may have been improper, they do not require reversal.

¶ 37 Preventing prosecutorial misconduct encompasses limitations

on prosecutorial advocacy. Prosecutors may not use inflammatory

language to encourage jurors to retaliate against a defendant or

play on jurors’ prejudices and are restricted to commenting on the

evidence presented and reasonable inferences from the evidence.

See, e.g., People v. Oliver, 745 P.2d 222, 228 (Colo. 1987); People v.

Ferrell, 613 P.2d 324, 326 (Colo. 1980).

¶ 38 Additionally, when reviewing a claim of prosecutorial

misconduct, we engage in a two-step analysis, determining, first,

whether the prosecutor’s conduct was improper based on the

totality of the circumstances and, second, whether such actions

warrant reversal. People v. Marko, 2015 COA 139, ¶ 204, 434 P.3d

618, 657, aff'd on other grounds, 2018 CO 97, 432 P.3d 607; Wend

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

1. Standard of Review

¶ 39 Whether a prosecutor’s statements constitute misconduct is

generally left to the trial court’s discretion, and we will not disturb

the trial court’s rulings on alleged misconduct absent a showing of

14
an abuse of discretion. Domingo-Gomez v. People, 125 P.3d 1043,

1049 (Colo. 2005); People v. Walker, 2022 COA 15, ¶ 27, 509 P.3d

1061, 1069.

¶ 40 We review preserved claims of prosecutorial misconduct under

the nonconstitutional harmless error standard. See Hagos v.

People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119. Under this standard,

we reverse only if the error substantially influenced the verdict or

affected the fairness of the trial. See id.; People v. Kern, 2020 COA

96, ¶ 13, 474 P.3d 197, 201. Where a claim of error is not

preserved by objection, we may reverse only if plain error occurred.

Hagos, ¶ 14, 288 P.3d at 120. An error is plain if it is obvious and

so undermined the fundamental fairness of a trial as to cast serious

doubt on the reliability of the judgment of conviction. People v.

Dominguez-Castor, 2020 COA 1, ¶ 85, 469 P.3d 514, 529.

Prosecutorial misconduct is plain error only if it is “flagrantly,

glaringly, or tremendously improper.” Id. at ¶ 86, 469 P.3d at 529

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

2. Voir Dire

¶ 41 Voir dire is not a constitutional right. Instead, it is a tool that

the parties use to reveal and address bias in potential jurors.

15
People v. Garcia, 2022 COA 144, ¶ 18, 527 P.3d 410, 416.

Regardless, a prosecutor engages in prosecutorial misconduct

during voir dire when the prosecutor misstates the law or

intentionally uses voir dire to present factual matter that the

prosecutor knows will not be admissible at trial or to argue the

prosecution’s case to the jury. People v. Krueger, 2012 COA 80,

¶ 50, 296 P.3d 294, 305-06; People v. Adams, 708 P.2d 813, 815

(Colo. App. 1985).

¶ 42 Here, Teague argues that the prosecutor diminished the

beyond-a-reasonable-doubt standard by comparing its weight to

whether to accept a job offer. The supreme court has held that

analogies to the beyond-a-reasonable-doubt standard are

unhelpful. See Tibbels v. People, 2022 CO 1, 501 P.3d 792.

¶ 43 In Tibbels, the court provided the jury with an improper

analogy to the beyond-a-reasonable-doubt standard that

encouraged the jury to analogize the standard to a nonlegal, crack-

in-the-foundation illustration. Id. at ¶ 50, 501 P.3d at 801. The

supreme court held the trial court’s analogy was improper because

it was reasonably likely that the jury understood the court’s

16
statements to allow a conviction based on a standard lower than

that of beyond a reasonable doubt. Id. at ¶ 53, 501 P.3d at 802.

¶ 44 Here, the prosecutor compared the decision to find Teague

guilty beyond a reasonable doubt to the level of importance when

searching for a job. Because the defense did not object, we review

for plain error. However, while we find Tibbels helpful, this case

was tried before the supreme court announced Tibbels. Therefore,

we look to other authorities to assist us in our analysis.

¶ 45 In People v. Cevallos-Acosta, 140 P.3d 116, 123 (Colo. App.

2005), a division of this court held that the prosecutor’s discussion

of reasonable doubt during voir dire, which included buying a

house as an example, did not constitute plain error when it

occupied a small part of the transcript, the prosecutor did not make

similar arguments during closing, and the jury was properly

instructed as to the definition of reasonable doubt. Here, the

prosecutor’s analogizing beyond a reasonable doubt to accepting a

job offer was a small part of the lengthy voir dire and trial.

¶ 46 Additionally, the trial court properly instructed the jury on the

definition of beyond a reasonable doubt. The court’s instructions,

agreed on by the parties, corrected any potential error resulting

17
from the prosecutor’s alleged misconduct during voir dire. Further,

because the trial occurred before Tibbels was decided, any error by

the trial court was not obvious.

¶ 47 Thus, the brief analogy during voir dire, even if erroneous,

when considered with the correct jury instructions provided by the

court, does not rise to the level of “flagrantly, glaringly, or

tremendously improper” so as to undermine the fundamental

fairness of the trial and therefore does not rise to the level of plain

error.

3. Opening Statement and Closing Arguments

¶ 48 Teague argues that the prosecutor misstated the facts and

added personal opinion, which resulted in reversible prosecutorial

misconduct.

¶ 49 In considering Teague’s claim, we must first review whether

the prosecutor’s statements were improper. We then address

whether any improper prosecutorial remarks warrant reversal. See

Domingo-Gomez, 125 P.3d at 1048; Harris v. People, 888 P.2d 259,

265–67 (Colo. 1995). In making this determination, we analyze the

four statements Teague challenges, including the language used,

the context, and whether defense counsel objected.

18
¶ 50 While a prosecutor is “free to strike hard blows,” prosecutors

are not “at liberty to strike foul ones.” Domingo-Gomez, 125 P.3d at

1048 (quoting Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)).

Overzealous advocacy that undermines an impartial trial by

contravening ethical standards cannot be permitted. Harris, 888

P.2d at 265.

¶ 51 Here, in opening statement, the prosecutor asserted that

Teague reached into the bag he was carrying during the assault and

pulled out a screwdriver, stabbed Mills in the head, and fractured

his bone. The defense did not object to this characterization.

Teague argues that the claim misstated the evidence because the

prosecutor did not present evidence that Teague had pulled a

screwdriver from the bag that he used to break Mills’s bone. The

prosecution repeated this view in closing arguments, saying that

Mills’s skull had been fractured, and the paramedic felt bones

crunching. Defense counsel objected to the claim made in the

closing argument. However, the trial court overruled this objection

because the statement was based on trial testimony and reasonable

inferences from it, as we discussed above.

19
¶ 52 Teague also argues the prosecution improperly bolstered the

credibility of the State’s witnesses during closing arguments.

However, the prosecution’s statement that the State’s DNA expert

had “no motive other than to . . . tell . . . the truth” did not

improperly bolster the credibility of the witness. An expert is legally

obligated to tell the truth, and the defense did not object to this

characterization of the witness’s testimony.

¶ 53 Teague also argues that the prosecutor improperly asked the

jury to hold him accountable. The defense did not object to the

statements Teague contends constitute prosecutorial misconduct.

We thus review this alleged prosecutorial misconduct for plain

error. Domingo-Gomez, 125 P.3d at 1048.

¶ 54 Here, the prosecution called for the jury to hold Teague

accountable during its opening statement and closing and rebuttal

closing arguments. Teague relies on People v. Buckner, 2022 COA

14, 509 P.3d 452, to argue that the prosecution engaged in

misconduct. That reliance, however, is misplaced, as Buckner is

distinguishable.

¶ 55 In Buckner, a division of this court held that the prosecutor’s

consistent calls for the jurors to “do justice” for the victim

20
constituted reversible misconduct. Id. at ¶ 42, 509 P.3d at 461.

The court emphasized that it was improper because a prosecutor

may not “pressure jurors by suggesting that guilty verdicts are

necessary to do justice for a sympathetic victim.” Id. at ¶ 40, 509

P.3d at 461 (quoting Marko, ¶ 221, 434 P.3d at 660).

¶ 56 The prosecutor’s comments here were not improper. Calls to

hold defendants accountable are permissible when made

“immediately after arguing that the evidence established . . . guilt.”

People v. Tran, 2020 COA 99, ¶ 68, 469 P.3d 568, 578. Here, the

prosecutor asked the jury to hold Teague accountable and send a

message to the community only after discussing the evidence, and

immediately after doing so.

¶ 57 Further, the prosecutor here did not solely ask the jury to do

justice for a sympathetic victim. Instead, the prosecutor’s

comments were brief and small parts of the prosecution’soverall

argument. Accordingly, this case is similar to People v. Garcia,

2021 COA 80, ¶ 40, 495 P.3d 362, 371, aff’d, 2023 CO 30, 531

P.3d 1031, where a division of this court held that the “prosecutor’s

appeal to justice was so minimally prejudicial that reversal is not

21
required.” In any event, because the comments were so brief, any

prosecutorial error was not prejudicial.

¶ 58 Therefore, because the prosecutor asked the jury to hold

Teague accountable after discussing the evidence, and the

comments were only a small part of their larger argument, the

comments were not improper. Consequently, we are not persuaded

that any prosecutorial misconduct that may have occurred rises to

the level of being flagrantly, glaringly, or tremendously improper.

E. Sentencing Hearing

¶ 59 Teague also argues that we should vacate his sentence and

remand for a new sentencing hearing because the record does not

contain the transcript of that hearing. We disagree.

1. Standard of Review

¶ 60 We review de novo whether the record is sufficient to enable

appellate review. Hoang v. People, 2014 CO 27, ¶ 38, 323 P.3d 780,

787.

2. Analysis

¶ 61 If a party believes that the appellate record is incomplete or

inaccurate, it must correct the deficiency under C.A.R. 10. People

v. Ray, 2012 COA 32, ¶ 6, 302 P.3d 289, 292. Under C.A.R. 10, if a

22
transcript of the evidence or proceedings at a hearing or trial is

unavailable, the parties may file a statement of the evidence or

proceedings. C.A.R. 10(e). Further, if there are any differences

between the parties regarding whether the record truly discloses

what occurred in the trial, or if a portion of the record is not in the

trial court’s possession, the differences must be submitted to and

settled by the trial court. C.A.R. 10(g)(1).

¶ 62 Nevertheless, reversal is required when a defendant can show

that an incomplete record “visits a hardship” on the defendant and

prejudices the appeal. People v. Killpack, 793 P.2d 642, 643 (Colo.

App. 1990) (quoting United States v. Valdez, 861 F.2d 427, 431 (5th

Cir. 1988)). However, if a party fails to attempt to reconstruct the

record as required under C.A.R. 10, that party may not complain

that the record is inadequate. In re Marriage of McSoud, 131 P.3d

1208, 1211 (Colo. App. 2006); Halliburton v. Pub. Serv. Co. of Colo.,

804 P.2d 213 (Colo. App. 1990).

¶ 63 Here, Teague filed a timely notice of appeal after he was

sentenced on August 27, 2021. However, on November 23, 2022,

the court reporter filed an affidavit with this court explaining that,

due to technical difficulties, the recording device had not worked,

23
and a transcript of the sentencing hearing could not be produced.

Counsel moved to supplement the record, but this court vacated the

motion to supplement, directing Teague to seek relief in the trial

court under C.A.R. 10(g)(1). Teague took no action for ten months,

but he now argues the record is inadequate and that he will be

prejudiced without a new sentencing hearing. Teague argues that

settling the record is an insufficient substitute. However, under the

rule, the parties must attempt to settle the record before arguing

the record is inadequate and prejudicial. Here, Teague failed to

follow through on his obligation to settle the record in the trial

court.

¶ 64 Therefore, Teague has not demonstrated prejudice from the

absence of a transcript of the sentencing hearing in the record, and

we decline to remand for a new sentencing hearing.

3. The Mittimus

¶ 65 The People contend that the record is unclear as to whether

the trial court intended to impose consecutive or concurrent

sentences. The minute order and register of actions indicate that

the trial court imposed concurrent sentences. However, each

mittimus shows consecutive sentences. These inconsistencies

24
present an unclear record as to whether the trial court imposed

consecutive or concurrent sentences. Therefore, we remand to the

trial court to clarify the mittimus.

III. Disposition

¶ 66 The judgment is affirmed, and the case is remanded to clarify

the mittimus.

JUDGE TOW concurs.

JUDGE DUNN concurs in part and dissents in part.

25
JUDGE DUNN, concurring in part and dissenting in part.

¶ 67 I agree with the majority with one exception. In my view, the

prosecution presented insufficient evidence to prove a serious

bodily injury beyond a reasonable doubt. For this reason, I would

vacate David Teague’s first degree assault conviction and remand

for entry of a second degree assault conviction and resentencing.

Thus, I respectfully dissent from Part II.B.2 of the majority’s

opinion.

¶ 68 As relevant here, “[a] person commits the crime of assault in

the first degree” when “he causes serious bodily injury to any

person by means of a deadly weapon.” § 18-3-202(1)(a), C.R.S.

2024. While different types of injuries may constitute a serious

bodily injury, the prosecution’s sole trial theory was that Teague

broke or fractured Slade Mills’s skull after assaulting him with a

screwdriver. See § 18-1-901(3)(p), C.R.S. 2020 (identifying “breaks”

and “fractures” as serious bodily injuries).

¶ 69 The problem is that the prosecution presented no evidence

that Mills actually suffered a broken or fractured bone. To

illustrate, no doctor testified that Mills suffered a broken or

fractured bone. The prosecution didn’t introduce any medical

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records, x-rays, or other imaging results from the hospital

evidencing a break or fracture (or other serious bodily injury). And

while Mills testified that he was “dizzy” and received “quite a few

stitches,” he never testified that he sustained a broken or fractured

bone. This absence of direct evidence stands in contrast to cases

that have concluded the prosecution presented sufficient evidence

of a break or fracture. See People v. Daniels, 240 P.3d 409, 410-12

(Colo. App. 2009) (noting sufficient evidence of break or fracture

included “[v]arious tests” that “revealed that the victim had a

fracture to the ribs”); People v. Jaramillo, 183 P.3d 665, 667, 670-72

(Colo. App. 2008) (rejecting sufficiency challenge to serious bodily

injury element of second degree assault because nurse practitioner

who treated the victim “testified that the victim suffered fractured

cartilage in her nose”); People v. Rodriguez, 888 P.2d 278, 288-89

(Colo. App. 1994) (rejecting sufficiency challenge to serious bodily

injury element of first degree assault because physician who treated

the victim testified that the victim “had suffered a non-dislocated

fracture of a portion of his femur”).

¶ 70 True, the prosecution introduced a photo of Mills’s injury and

the lay testimony of the responding paramedic. To be sure, the

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photo shows a deep and significant gash in Mills’s head. While I in

no way minimize the seriousness of the head wound, that’s all the

photo shows. The photo shows no bones, let alone a broken or

fractured bone. That leaves only the paramedic’s brief testimony

that he “felt some bones crunching” after “press[ing] on” Mills’s

wound. The paramedic, however, was not qualified as an expert,

offered no opinion on whether Mills sustained a broken or fractured

bone, and didn’t testify that he saw any breaks or fractures. And

“some bones crunching” — whatever that means — is not a medical

diagnosis. Cf. Tesone v. Empire Mktg. Strategies, 942 F.3d 979,

996-97 (10th Cir. 2019) (explaining that “a lay witness is competent

to testify concerning those physical injuries and conditions which

are susceptible to observation by an ordinary person,” but when

injuries “require skilled and professional persons to determine the

cause and extent thereof, they must be proved by the testimony of

medical experts”) (citation omitted); Franklin v. Shelton, 250 F.2d

92, 97 (10th Cir. 1957) (concluding lay witness was not competent

to testify about her son’s broken ribs and punctured lung because

she was not capable of observing those injuries).

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¶ 71 Given the lack of any evidence that Mills suffered a bone break

or fracture, I can’t conclude that the evidence presented — even

giving the benefit of every reasonable inference to the

prosecution — was “substantial and sufficient” enough for a

reasonable jury to conclude, beyond a reasonable doubt, that Mills

suffered a broken or fractured bone. McBride v. People, 2022 CO

30, ¶ 38. And because the prosecution only pursued the “breaks”

or “fractures” theory (and didn’t, for example, present any evidence

supporting a “substantial risk of serious permanent disfigurement”

theory), § 18-1-901(3)(p), C.R.S. 2020, the prosecution failed to

present substantial and sufficient evidence to prove that Mills

suffered a serious bodily injury.

¶ 72 By concluding otherwise, it seems that the majority considered

the injury Mills could have experienced from the screwdriver attack.

But to determine whether a serious bodily injury occurred, the

actual injury proved at trial controls, not the risk generally

associated with the type of conduct or injury in question. See

People v. Vigil, 2021 CO 46, ¶¶ 33-35. And, ultimately, “[a] verdict

cannot rest on guessing, speculation, conjecture, or a mere

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modicum of relevant evidence.” McBride, ¶ 38; see also People v.

Donald, 2020 CO 24, ¶ 19.

¶ 73 For these reasons, and because it’s undisputed that Mills

suffered a bodily injury, I would vacate the first degree assault

conviction and remand with directions to enter a second degree

assault conviction and resentence Teague accordingly. See People

v. Dominguez, 568 P.2d 54, 55-56 (Colo. 1977) (vacating first degree

assault conviction and directing entry of second degree assault

conviction because “[a]ll the elements of the lesser included

offense . . . were proven” at trial).

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