CourtListener 10761207•Peo v. Smith
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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
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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).
8
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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