People v. Duncan

545 P.3d 963

2023 COA 122

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.James M. DUNCAN, Defendant-Appellant.

Court of Appeals No. 22CA1114

Colorado Court of Appeals, Div. IV.

Announced December 21, 2023

City and County of Denver District Court No. 21CR957, Honorable Brian R. Whitney, Judge

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Navarro and Grove, JJ., concur

Opinion by JUDGE LUM

¶ 1 Defendant, James M. Duncan, appeals his conviction for second degree assault. Arguing that the word "protracted" means "permanent," he contends that the jury did not have sufficient evidence to find that he inflicted serious bodily injury because there was no evidence that the victim suffered an injury involving a "substantial risk of protracted loss or impairment of the function of any part or organ of the body." § 18-1-901(3)(p), C.R.S. 2023. As a matter of first impression, we conclude that "protracted" means "prolonged, continued, or extended" but does not necessarily mean "permanent." Applying that definition, we conclude that sufficient evidence supported Duncan’s conviction. Because we also reject Duncan’s contentions that (1) the statutory definition of serious bodily injury is unconstitutionally vague and (2) the prosecutor committed misconduct during closing argument, we affirm the judgment.

I. Background

¶ 2 Duncan and the victim, Patricia Phalen, were living together in a hotel room when they got into an altercation after Phalen told Duncan that she wanted to end their relationship. The argument escalated, at which point Duncan struck Phalen on the left side of her face, contacting her left ear. The strike knocked her down. Duncan then punched, kicked, and stomped on Phalen until she fought him off and escaped.

¶ 3 Phalen ran to the hotel lobby, where staff helped her call 911. Phalen told the 911 operator that she had lost hearing in her ear. The police arrived and arrested Duncan. Paramedics took Phalen to the hospital, but she did not require emergency treatment or surgery, despite her hearing loss.

¶ 4 Twelve days after the incident, Phalen went to Scott Mann, M.D., an ear, nose, and throat physician, because she remained unable to hear out of her left ear. Dr. Mann testified that his initial examination showed Phalen had a small hole in the front part of her left eardrum. The hole was consistent with Duncan striking her and causing barotrauma, a sudden increase in air pressure that can perforate an eardrum. According to Dr. Mann, such holes cause hearing loss but generally heal in six to eight weeks. Dr. Mann asked Phalen to return for a repeat examination in about a month.

¶ 5 Five months went by before Phalen returned for a second examination. Phalen testified that her hearing had returned "the day before" the appointment. Dr. Mann de- termined that Phalen’s hearing had indeed returned to normal, although Phalen claimed at trial that she still could not hear low tones.

¶ 6 Duncan was charged with second degree assault for causing serious bodily injury—namely, the hole in Phalen’s eardrum that caused her hearing loss. § 18-3-203(1)(g), C.R.S. 2023; see § 18-1-901(3)(p). The jury convicted Duncan as charged, and he appeals.

II. Sufficiency of the Evidence

¶ 7 As relevant here, serious bodily injury is "bodily injury that, either at the time of the actual injury or at a later time, involves … a substantial risk of protracted loss or impairment of the function of any part or organ of the body." § 18-1-901(3)(p). Duncan contends that the jury had insufficient evidence to find that he caused Phalen an injury that carried a substantial risk of "protracted loss or impairment." He argues that the word "protracted" means "permanent" and that the prosecution failed to present sufficient evidence that Phalen experienced a substantial risk of suffering permanent hearing loss as a result of the hole in her eardrum. We are not persuaded.

A. Protracted

[1] ¶ 8 We review challenges to the sufficiency of the evidence de novo, "even when the defendant raises such issues for the first time on appeal and even if consideration of the issue involves a preliminary question of statutory construction." McCoy v. People, 2019 CO 44, ¶ 34, 442 P.3d 379.

[2, 3] ¶ 9 Our "primary purpose" when analyzing the construction of a statute "is to ascertain and give effect to the legislature’s intent." Id. at ¶ 37. "[W]e look first to the language of the statute, giving its words and phrases their plain and ordinary meanings." Id. "We read statutory words and phrases in context, and we construe them according to the rules of grammar and common usage." Id." As well, "we read that scheme as a whole, giving consistent, harmonious, and sensible effect to all of its parts," and we "avoid constructions that would render any words or phrases superfluous or lead to illogical or absurd results." Id. at ¶ 38.

[4] ¶ 10 Lacking a statutory definition, we must define "protracted" by ascertaining its common usage, and we may use a dictionary to discern the word’s plain and ordinary meaning. Johnson v. People, 2023 CO 7, ¶ 16, 524 P.3d 36; People v. Jaramillo, 183 P.3d 665, 671 (Colo. App. 2008). "Protract" is defined as "to prolong in time or space," "continue," or "to extend forward or outward." Merriam-Webster Dictionary, https://perma.cc/7MYT-6R4H. By comparison, "permanent" means "continuing or enduring without fundamental or marked change," "stable," or generally "indelible." Merriam-Webster Dictionary, https://perma.cc/DSC9-FAMB.

[5] ¶ 11 Applying these definitions to section 18-1-901(3)(p), we conclude that the ordinary meaning of "protracted loss or impairment" is a loss or impairment that is prolonged, continued, or extended. See Thompson v. State, 2018 WY 3, ¶ 40, 408 P.3d 756, 766 (Wyo. 2018) ("Using the standard definition of protracted, the State must prove the victim suffered a long or lengthy impairment of a bodily function."); Walker v. State, 742 P.2d 790, 791 (Alaska Ct. App. 1987) (" ‘Protracted’ is defined, as ‘to draw out or lengthen in time or space.’ " (quoting Webster’s Third New International Dictionary of the English Language Unabridged 1826 (1963))).

¶ 12 True, certain protracted losses or impairments may become so extended that by the time of trial they appear to be permanent conditions. Likewise, it may be difficult for a medical professional to predict whether an impairment (1) will persist for an extended period but eventually resolve or (2) will, in fact, be permanent. But just because the definitions of protracted and permanent have some overlap does not mean they are indistinguishable; injuries do not need to be unchanging or "indelible" to be extended or prolonged. In other words, every permanent condition is protracted, but not every protracted condition is permanent.

[6] ¶ 13 Other language in the statutory definition of serious bodily injury supports the distinction between protracted and per- manent. See McCoy, ¶ 38. "Serious bodily injury" as defined in section 18-1-901(3)(p) includes several different types of injuries, each with a different modifier: for example, "permanent disfigurement," "protracted loss," and "penetrating gunshot wound." (Emphasis added.) We presume that the General Assembly intentionally selected each modifier used in section 18-1-901(3)(p). Cf. People v. Ryan, 2022 COA 136, ¶ 39, 525 P.3d 673 ("[W]e must give full effect to the words chosen by the General Assembly and presume that it meant what it clearly said"). And the General Assembly clearly understood how to use the word "permanent" because it specified that an injury involving a risk of "disfigurement" is only a "serious bodily injury" if it risks "permanent disfigurement." § 18-1-901(3)(p). If the General Assembly had intended for an injury to be a "serious bodily injury" only if it involves a risk of "permanent" impairment or loss, it would have said so.¹ Cf. People v. Daniels, 240 P.3d 409, 412 (Colo. App. 2009) ("[W]hen the General Assembly sought to have a modifier apply to each term in a series in this statute, it did so expressly.").

¶ 14 Relying on People v. Dominguez, Duncan argues that, because protracted and permanent lack a "sufficiently pragmatic difference," protracted necessarily means permanent. 193 Colo. 468, 470, 568 P.2d 54, 55 (1977) (quoting People v. Calvaresi, 188 Colo. 277, 282, 534 P.2d 316, 319 (1975)). In Dominguez, the defendant lacerated, a patron’s eye at a nightclub during a fight and was convicted of first degree assault. Id. at 469, 568 P.2d at 54–55. The Colorado Supreme Court examined whether the first degree assault statute violated the defendant’s right to equal protection by penalizing that offense more severely than second degree assault, even though the statutes proscribed essentially the same conduct. Id. at 470, 568 P.2d at 55.

¶ 15 At the time Dominguez was decided, a person committed first degree assault if, with the "intent to … disable permanently a member or organ of his body, he causes such an injury to any person." Id. (quoting § 18-3-202(1)(b), C.R.S. 1973). And a person committed second degree assault if, with the "intent to cause serious bodily injury to another person, he does cause such injury to any person." Id. (quoting § 18-3-203(1)(a), C.R.S. 1973). At that time, "serious bodily injury" was defined as including a "protracted loss or impairment of the function of any part or organ of the body." Id. (quoting § 18-1-901(3)(p), C.R.S. 1973). The supreme court concluded that the distinction between " ‘permanent’ disablement" and "protracted loss or impairment" was "not sufficiently apparent to be intelligently and uniformly applied." Id. (quoting Calvaresi, 188 Colo. at 282, 534 P.2d at 318). Thus, the statute violated equal protection guarantees. Id.

¶ 16 But...