SUMMARY 

April 19, 2018 

2018COA53 

No. 15CA0121, People v. Bryant — Evidence — Opinions and 

Expert Testimony — Testimony by Experts 

A division of the court of appeals considers whether a police 

officer’s testimony defining a street slang term for an illegal drug 

constitutes lay or expert testimony under the test set forth in 

Venalonzo v. People, 2017 CO 9. The division concludes that the 

testimony in this case was expert testimony. 

When, as in this case, there is testimony defining a term that 

is not likely to be known by someone with ordinary experiences and 

knowledge, the testimony is expert testimony. Under the 

circumstances here, the division concludes that the police officer’s 

testimony defining the term “sherm” as “PCP” constituted expert 

testimony and was, thus, inadmissible. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion. 
Although the trial court erred by improperly admitting the 

police officer’s testimony as lay testimony, the division further 

concludes that the error was harmless. 

The division also considers and rejects defendant’s arguments 

that his statements to police were involuntary, that his Miranda

waiver was invalid, and that the trial court improperly instructed 

the jury. 

Accordingly, the division affirms the judgment of conviction. 
COLORADO COURT OF APPEALS 2018COA53

Court of Appeals No. 15CA0121 

Arapahoe County District Court No. 14CR874 

Honorable Elizabeth A. Weishaupl, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Durron Larry Bryant, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division II 

Opinion by CHIEF JUDGE LOEB 

Davidson* and Márquez*, JJ., concur 

Announced April 19, 2018 

Cynthia H. Coffman, Attorney General, Christine Brady, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Jeffrey Svehla, 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. 2017.
1 

¶ 1 Defendant, Durron Larry Bryant, appeals the judgment of 

conviction entered on jury verdicts finding him guilty of unlawful 

possession of a controlled substance and two counts of third degree 

assault. We affirm. 

I. Background and Procedural History 

¶ 2 According to the prosecution’s evidence, in the late afternoon 

on April 4, 2014, a woman called the police because she had seen 

Bryant jumping up and down, cursing, and screaming near an 

intersection in Aurora. Officers arrived just after Bryant struck a 

male teenager in the back of the head and hit a female teenager on 

the side of her face. After arresting Bryant, officers interviewed 

eyewitnesses and conducted a field showup. The witnesses 

identified Bryant as the man who had been acting erratically and as 

the man involved in the altercation, and Officers Ortiz and Fink 

transported Bryant to the Aurora jail. 

¶ 3 Shortly after arriving at the jail, and approximately one hour 

after Bryant was arrested, Officers Ortiz and Fink interviewed 

Bryant in the booking room. Officer Ortiz read Bryant his rights 

under Miranda v. Arizona, 384 U.S. 436, 444 (1966). He then asked 

Bryant if he understood his rights, and Bryant said that he did. 
2 

Officer Ortiz asked Bryant if he would be willing to speak with 

police, and Bryant said that he was willing to do so. 

¶ 4 During the interview, Officer Ortiz asked Bryant if he was 

under the influence of drugs or alcohol, and Bryant answered that 

he was. When Officer Ortiz asked Bryant what substance he was 

under the influence of, Bryant said that the substance was in his 

sock and pointed to his ankle, telling the officers that they could 

retrieve the substance. After the officers retrieved a small vial from 

Bryant’s sock, Officer Ortiz asked Bryant what the substance was. 

Bryant responded that the substance was “sherm.” 

¶ 5 Officer Ortiz was not familiar with the term “sherm,” but 

Officer Fink recognized it as a term meaning “PCP” or 

phencyclidine. Officer Fink asked Bryant several times during the 

interview if the substance was “PCP,” and Bryant eventually 

responded that the substance was “PCP.” At trial, Officers Ortiz 

and Fink testified to this exchange, and Officer Fink also testified 

that, based on his training and experience, he knew that “sherm” is 

a street slang word for “PCP.” 

¶ 6 Bryant was charged with unlawful possession of a controlled 

substance and two counts of third degree assault. 
3 

¶ 7 Before trial, Bryant submitted several motions to suppress, 

and the court held a two-day suppression hearing. As relevant 

here, Bryant contended that his statements to police were 

involuntary and that his Miranda waiver was invalid. Officers Ortiz 

and Fink both testified at the suppression hearing, as did the two 

teenagers who were assaulted and a witness to the assault. The 

trial court denied all of Bryant’s motions to suppress, ruling that 

Bryant’s statements were made voluntarily and that he had validly 

waived his Miranda rights. 

¶ 8 A jury convicted Bryant as charged, and he now appeals. 

II. Suppression 

¶ 9 Bryant contends that the trial court erred by ruling that his 

statements to the police were voluntary and that he had validly 

waived his Miranda rights. We are not persuaded. 

A. Facts 

¶ 10 The following facts were established at the suppression 

hearing through testimony from Officers Ortiz and Fink. 

¶ 11 On the day of Bryant’s arrest, Officers Ortiz and Fink were 

originally dispatched to Bryant’s location to conduct a welfare check 

on a man who was acting erratically in the middle of the street and 
4 

who was possibly under the influence of drugs. While Officers Ortiz 

and Fink were on the way to Bryant’s location, however, they 

received a further dispatch that the same individual who had been 

acting erratically had possibly threatened and assaulted people at 

the scene. 

¶ 12 Upon arriving at the scene, Officers Ortiz and Fink saw a man 

who matched the description given in the dispatch and who was 

later identified as Bryant. They proceeded to approach Bryant, and 

Officer Ortiz ordered Bryant to stop and speak with him. In 

response, Bryant looked at Officers Ortiz and Fink and then began 

to walk away. Officers Ortiz and Fink continued to approach 

Bryant, and Officer Ortiz ordered Bryant to stop, turn around, and 

interlock his fingers. Officer Ortiz gave Bryant several orders to do 

this, but Bryant did not comply. Instead, Bryant put his hands up 

and then down in response to Officer Ortiz’s commands, and then 

he got down on the ground before standing back up. Finally, a 

third officer on the scene ordered Bryant to sit back down on the 

ground. 

¶ 13 Officers Ortiz and Fink both testified that this was unusual 

behavior and that Bryant did not seem to understand Officer Ortiz’s 
5 

commands. After arresting Bryant, they proceeded to interview 

witnesses and conduct a field showup. 

¶ 14 While Officers Ortiz and Fink were transporting Bryant to the 

Aurora jail, Bryant repeatedly asked why he had been arrested, and 

Officer Ortiz repeatedly explained to Bryant that he had assaulted 

someone. Officer Ortiz described Bryant as acting in disbelief each 

time he explained to him that he had assaulted someone. Officer 

Ortiz also testified that Bryant asked why he had been arrested 

approximately fifteen to twenty times, while Officer Fink estimated 

that Bryant asked this question approximately five times. 

¶ 15 Officer Ortiz further testified that he believed Bryant was 

under the influence of drugs or alcohol because of his behavior; 

Officer Fink testified that Bryant seemed to be coming off of a high. 

Officers Ortiz and Fink both testified that Bryant’s demeanor 

changed, however, by the time they arrived at the jail, and they 

both described him as being calm and cooperative at the jail. 

¶ 16 Officers Ortiz and Fink brought Bryant to a booking room 

where Officer Ortiz read Bryant his Miranda rights from a preprepared card issued by the Aurora Police Department, and Bryant 

orally waived those rights. During the course of the interview, 
6 

Bryant admitted that he was under the influence of drugs, revealed 

to Officers Ortiz and Fink that he had a small vial of drugs in his 

sock, and identified the vial as containing “sherm,” which he later 

admitted during the interview meant “PCP.” According to the 

officers’ testimony, neither of them threatened or coerced Bryant in 

any way, nor did they use physical force on Bryant. 

B. Voluntariness 

¶ 17 Bryant contends that his statements to the police at the jail 

were involuntary and should have been suppressed, arguing that 

the police exploited his intoxicated state during their interrogation 

to elicit incriminating responses. We disagree. 

1. Standard of Review and Applicable Law 

¶ 18 When a trial court rules on a motion to suppress, it engages in 

both factfinding and law application. People v. Platt, 81 P.3d 1060, 

1065 (Colo. 2004). We will uphold a trial court’s findings of fact on 

the voluntariness of a statement when the findings are supported 

by adequate evidence in the record, but we review de novo a trial 

court’s ultimate determination of whether a statement was 

voluntary. Effland v. People, 240 P.3d 868, 878 (Colo. 2010). 
7 

¶ 19 When reviewing a trial court’s suppression ruling, appellate 

courts must only consider evidence presented at the suppression 

hearing. Moody v. People, 159 P.3d 611, 614 (Colo. 2007). We 

consider the “interrelationship between the evidentiary facts of 

record, the findings of the trial court, and the applicable legal 

standards.” People v. D.F., 933 P.2d 9, 13 (Colo. 1997). We also 

examine a trial court’s legal conclusions de novo under the totality 

of the circumstances. People v. Triplett, 2016 COA 87, ¶ 28. 

¶ 20 When a defendant seeks to suppress a confession or 

inculpatory statement, the prosecution must establish by a 

preponderance of the evidence that the confession or statement was 

voluntary. People v. Gennings, 808 P.2d 839, 843 (Colo. 1991). 

Under the Due Process Clauses of the United States and Colorado 

Constitutions, a defendant’s statements must be made voluntarily 

in order to be admissible into evidence. U.S. Const. amends. V, 

XIV; Colo. Const. art. II, § 25; Mincey v. Arizona, 437 U.S. 385, 397 

(1978); People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982). 

¶ 21 A statement is voluntary made if it is “not ‘extracted by any 

sort of threats or violence, nor obtained by any direct or implied 

promises, however slight.’” People v. Mounts, 784 P.2d 792, 796 
8 

(Colo. 1990) (quoting People v. Pineda, 182 Colo. 385, 387, 513 P.2d 

452, 453 (1973)). The statement must be the product of an 

essentially free and unconstrained choice by the maker. Id. 

¶ 22 “Critical to any finding of involuntariness is the existence of 

coercive governmental conduct, either physical or mental, that 

plays a significant role in inducing a confession or an inculpatory 

statement.” People v. Valdez, 969 P.2d 208, 211 (Colo. 1998). 

“While a defendant’s mental condition, by itself and apart from its 

relationship to official coercion, does not resolve the issue of 

constitutional voluntariness, the deliberate exploitation of a 

person’s weakness by psychological intimidation can under some 

circumstances constitute a form of governmental coercion that 

renders a statement involuntary.” Gennings, 808 P.2d at 844 

(citation omitted). 

¶ 23 “[I]ntoxication alone does not automatically render statements 

involuntary . . . .” People v. Martin, 30 P.3d 758, 760 (Colo. App. 

2000). Rather, coercive government conduct is the “necessary 

predicate to the finding that a confession is not ‘voluntary.’” 

Colorado v. Connelly, 479 U.S. 157, 167 (1986). 
9 

¶ 24 The voluntariness of a statement must be determined by a 

consideration of the totality of the circumstances under which the 

statement was made. Mounts, 784 P.2d at 796. Our supreme court 

has articulated several factors to consider when evaluating the 

voluntariness of a statement in light of the totality of the 

circumstances, including 

whether the defendant was in custody or was 

free to leave and was aware of his situation; 

whether Miranda warnings were given prior to 

any interrogation and whether the defendant 

understood and waived his Miranda rights; 

whether the challenged statement was made 

during the course of an interrogation or 

instead was volunteered; whether any overt or 

implied threat or promise was directed to the 

defendant; the method and style employed by 

the interrogator in questioning the defendant 

and the length and place of the interrogation; 

and the defendant’s mental and physical 

condition immediately prior to and during the 

interrogation, as well as his educational 

background, employment status, and prior 

experience with law enforcement and the 

criminal justice system. 

Valdez, 969 P.2d at 211 (quoting Gennings, 808 P.2d at 844). 

2. Analysis 

¶ 25 We reject Bryant’s contention that his statements were 

involuntary. 
10 

¶ 26 After hearing testimony at the suppression hearing, the trial 

court made an extensive and thorough oral ruling as to whether, 

under the totality of the circumstances, Bryant’s statements to the 

police had been the product of any coercive government conduct. 

In doing so, the court considered Officer Ortiz’s and Officer Fink’s 

testimony and outlined a number of factors relevant to its analysis. 

The trial court found that 

[Bryant] was in custody at the time that he 

made the statements at the station, that he 

was aware of his situation. He’d asked why he 

was being taken to the station and he was 

being booked. Miranda warnings were given 

prior to the interrogation. Both officers 

indicated that based on their observations of 

the defendant he understood what they were 

saying and responded appropriately to the 

questions, and in fact, I find that he did 

understand and waive his rights. He at no 

time indicated that he wanted to confer with 

counsel. The statements were made during 

interrogation . . . . The length . . . of the 

interrogation was short. No threats, either 

overt or implied, were made or directed 

towards the defendant. The defendant seemed 

to be coherent and calm and responding 

appropriately to the questions of the 

police . . . . [U]nder the totality of the 

circumstances, I find nothing that would 

render [Bryant’s] statements a product of 

undue influence, coercion, threat or in any 

way involuntary, so I deny the motion to 
11 

suppress the statements as involuntary as 

well. 

¶ 27 We conclude that the following evidence, elicited at the 

suppression hearing, supports the trial court’s findings regarding 

the voluntariness of Bryant’s statements to police at the police 

station: 

 Bryant was given Miranda warnings prior to the 

interrogation, and he understood and waived his rights. 

 The interrogation lasted at most fifteen minutes. 

 The interrogation occurred approximately one hour after 

Officers Ortiz and Fink arrested Bryant, and Bryant’s 

demeanor had changed during that time. Once at the 

jail, Bryant was calm, coherent, and cooperative. He was 

less repetitive than when he was in the car, and he 

answered questions appropriately. 

 There was no evidence of promises, threats, or physical 

or emotional coercion. 

¶ 28 Accordingly, we agree with the trial court that there was 

“nothing that would render [Bryant’s] statements a product of 

undue influence, coercion, threat or in any way involuntary.” 
12 

¶ 29 Bryant’s reliance on People v. Humphrey, 132 P.3d 352 (Colo. 

2006), is misplaced. In Humphrey, the trial court ruled that some 

of the defendant’s statements were involuntary due to psychological 

coercion. The defendant in Humphrey was a teenager suspected of 

stabbing another teenager and who was found “bleeding, 

incoherent, and in need of medical attention.” Id. at 354. She was 

transported to the hospital, where her blood alcohol level was 

measured as 0.104 at 3:24 a.m., and 0.090 at 4:27 a.m. Id. 

Nonetheless, her physician noted that she was “clinically sober” at 

the time of her release, and she was questioned by police at 

approximately 6 a.m. Id. 

¶ 30 The trial court in Humphrey “considered [the defendant’s] 

physical, emotional, and psychological state at the time of the 

interrogation but recognized that, alone, these circumstances did 

not render her statements involuntary.” Id. at 361. Rather, the 

trial court’s finding of psychological coercion “rested upon the 

circumstances of a discrete portion of the interview,” when she was 

informed that the victim had died of his stab wounds and she 

proceeded to have an emotional breakdown. Id.
13 

¶ 31 The supreme court in Humphrey affirmed the trial court’s 

suppression of the defendant’s statements made after being 

informed of the victim’s death, but reversed as to the suppression of 

her statements made before that disclosure. Id. The supreme court 

concluded that it was only at the point that the defendant 

experienced an emotional breakdown, when she “cried and broke 

into uncontrollable sobbing” and “[h]er answers to the questions 

thereafter were emotional reactions that were only partially 

coherent,” that the continued police questioning became coercive. 

Id.

¶ 32 By contrast, Bryant suffered no such emotional breakdown, 

but was instead described by Officers Ortiz and Fink as being calm, 

coherent, and cooperative. Moreover, the interview lasted no more 

than fifteen minutes, and there was no evidence in the record from 

the suppression hearing that Bryant’s demeanor changed at any 

point during the interview itself, and no evidence of any 

psychological coercion like that found in Humphrey. 

¶ 33 In sum, we conclude that the trial court did not err by finding 

that Bryant’s statements to the police were made voluntarily. 
14 

C. Waiver of Miranda Rights 

¶ 34 Bryant also contends that his statements to the police should 

have been suppressed because the police failed to obtain a valid 

Miranda waiver. He argues that he was so intoxicated and confused 

at the time he was advised of his Miranda rights that he did not 

make a knowing and intelligent waiver of those rights. We are not 

persuaded. 

1. Standard of Review and Applicable Law 

¶ 35 In reviewing a trial court’s ruling on a motion to suppress a 

custodial statement and the validity of a Miranda waiver, we defer 

to the trial court’s findings of fact if they are supported by 

competent evidence in the record, but review the application of the 

law to those facts de novo. Platt, 81 P.3d at 1065. We are limited 

in our review to the evidence presented at the suppression hearing, 

and examine the trial court’s legal conclusions under the totality of 

the circumstances. Moody, 159 P.3d at 614; Triplett, ¶ 28. 

¶ 36 Police must give a suspect a Miranda advisement at the outset 

of custodial interrogation. 384 U.S. at 444. This advisement serves 

to inform a suspect of his or her constitutional rights. Id. Upon 

receiving a proper advisement, a suspect may waive those rights, 
15 

but, to be valid, the waiver must be voluntary, knowing, and 

intelligent. Id. 

¶ 37 “A Miranda waiver is considered voluntary unless ‘coercive 

governmental conduct — whether physical or psychological — 

played a significant role in inducing the defendant to make the 

confession or statement.’” Platt, 81 P.3d at 1065 (quoting People v. 

May, 859 P.2d 879, 883 (Colo. 1993)). A person makes a knowing 

and intelligent waiver of his or her Miranda rights when he or she 

has full awareness of the nature of the rights being abandoned and 

the consequences of their abandonment. May, 859 P.2d at 883. 

¶ 38 “‘Intoxication will render a suspect’s waiver involuntary when 

government conduct causes the intoxication’ or, if self-induced, 

when ‘the suspect was so intoxicated that he or she could not have 

made a knowing and intelligent waiver.’” People v. Clayton, 207 

P.3d 831, 836 (Colo. 2009) (quoting Platt, 81 P.3d at 1066). 

Whether a suspect’s mental faculties were diminished due to selfinduced intoxication, however, is not decisive of whether a Miranda

waiver was knowing and intelligent. Platt, 81 P.3d at 1066. Rather, 

intoxication only invalidates an otherwise valid Miranda waiver if 

the court finds by a preponderance of the evidence that the 
16 

defendant was so intoxicated as to be incapable of understanding 

the nature of his or her rights and the ramifications of waiving 

them. Id. 

¶ 39 When determining whether self-induced intoxication renders a 

waiver unknowing or unintelligent, we consider several factors: 

whether the defendant seemed oriented to his 

or her surroundings and situation; whether 

the defendant’s answers were responsive and 

appeared to be the product of a rational 

thought process; whether the defendant was 

able to appreciate the seriousness of his or her 

predicament, including the possibility of being 

incarcerated; whether the defendant had the 

foresight to attempt to deceive the police in 

hopes of avoiding prosecution; whether the 

defendant expressed remorse for his or her 

actions; and whether the defendant expressly 

stated that he or she understood their rights. 

Id.1 

2. Analysis 

¶ 40 We reject Bryant’s contention that his Miranda waiver was not 

knowing and intelligent. Although he argues that he was so 

 

1 We recognize that many of these factors are also relevant in a 

review of whether a defendant’s statements were voluntary. Here, 

the trial court properly conducted two separate reviews, one for 

voluntariness and one for a valid Miranda waiver, and applied the 

correct test in each. 
17 

intoxicated and confused that he could not have been fully aware of 

the nature of the rights he was waiving and the consequences of his 

decision to waive them, the record supports the trial court’s finding 

that he was not intoxicated at the time he waived his Miranda

rights. 

¶ 41 In particular, the trial court found that Bryant was 

“responding appropriately to booking questions,” and that he was 

“calm, coherent, and responding to questions appropriately and was 

not behaving in any way that would indicate that he was under the 

influence of anything, although both of [the officers] thought he 

might have been under the influence previously.” Moreover, the 

trial court found that “[h]e did not indicate any confusion nor did 

his behavior indicate that there was any confusion or that he was 

suffering from any sort of impairment, which would render his 

waiver of his Miranda rights invalid.” 

¶ 42 Officers Ortiz’s and Fink’s testimony from the suppression 

hearing supports the trial court’s findings, and no evidence was 

presented at the hearing to contradict their testimony. In particular 

their testimony revealed the following: 
18 

 Approximately one hour had passed between the time 

Bryant was arrested and when he arrived at the jail for 

questioning. 

 Bryant was oriented to his surroundings and situation 

once he arrived at the jail. 

 Bryant was cooperative, and his answers were responsive 

and appeared to be the product of a rational thought 

process. 

 Bryant demonstrated that he appreciated the severity of 

his predicament, including the possibility of being 

incarcerated, when he asked whether possession of “PCP” 

was a felony. 

 Bryant expressly stated that he understood his rights. 

See Platt, 81 P.3d at 1066 (outlining factors to be considered when 

considering how intoxication might affect a knowing and intelligent 

Miranda waiver). 

¶ 43 While the record shows that Bryant was incapable of following 

instructions when he was arrested and that he was generally 

confused as to the nature of his predicament while being 

transported to the jail, Officers Ortiz and Fink both testified that 
19 

Bryant’s condition and demeanor had changed by the time he 

arrived at the jail, approximately one hour from the time they 

arrested him. 

¶ 44 In that regard, while Officer Ortiz testified that he thought 

Bryant was under the influence of drugs when they arrested him, 

he also testified that 

[Bryant’s] demeanor seemed to change from 

our initial contact to when we were at the jail. 

Also from as confused as he sounded in the 

car, at the jail he seemed to kind of soak it all 

in and was just more quiet and calm and less 

repetitive of his questions and answers. 

¶ 45 Officer Fink testified that even before they arrived at the jail, 

Bryant appeared to already be on the “down side of his [being] 

under the influence” and was “on basically the sobriety part of 

using something.” 

¶ 46 Bryant argues, nonetheless, that his case is akin to People v. 

Fordyce, 200 Colo. 153, 612 P.2d 1131 (1980), where the supreme 

court affirmed the trial court’s finding that the defendant’s mental 

state was sufficiently impaired due to morphine for her Miranda
20 

waiver to have been involuntary.2 The facts of Fordyce, however, 

are easily distinguished from the facts of the present case. 

¶ 47 In Fordyce, the defendant was suffering from second and first 

degree burns, was hospitalized and on morphine, and was 

questioned while in the intensive care unit by detectives wearing 

surgical garb. Id. at 155, 612 P.2d at 1132. The defendant’s 

treating doctor and nurse testified at the suppression hearing that 

the defendant’s behavior appeared rational and that she seemed to 

be oriented as to person, time, and place. Id. at 155, 612 P.2d at 

1133. Also at the suppression hearing, one of the detectives 

testified that the defendant was responsive and seemed to 

understand his questions. Id. 

¶ 48 The defendant in Fordyce, however, presented expert 

testimony at the suppression hearing from a toxicologist who 

testified that the defendant’s medical records “showed an average 

 

2 Fordyce refers to the voluntariness of the suspect’s Miranda

waiver, but, as discussed in People v. May, 859 P.2d 879, 882-83 

(Colo. 1993), the voluntariness standard has since been more 

clearly defined as comprising two separate dimensions: “first is the 

presence or absence of coercion, which primarily concerns the effect 

of police conduct, and the second is the knowing and intelligent 

action on the part of the person being interrogated.” Id. at 883. 
21 

reaction to an average dose of morphine”; that morphine “creates a 

euphoria which takes away a patient’s perception of pain”; and that 

“a patient may exhibit no outward signs of intoxication,” but 

morphine nonetheless “takes away a patient’s perception of danger, 

thereby lessening self-protective instincts.” Id. The expert in 

Fordyce also testified at the hearing that morphine interferes with 

short-term memory, and that the average person on morphine 

would easily confuse a detective wearing surgical garb with medical 

personnel. Id. at 156, 612 P.2d at 1133. 

¶ 49 The supreme court thus explained summarily that “[t]he 

toxicologist’s opinion based on reasonable medical probability was 

that an average person under treatment with morphine would have 

difficulty understanding a Miranda advisement and perceiving the 

important effect of information given to the police.” Id. Concluding 

that “the testimony of the treating doctor, nurse and detective that 

the defendant’s behavior appeared rational [did] not conflict with 

the toxicologist’s testimony describing morphine intoxication,” the 

supreme court affirmed the trial court’s finding that the defendant’s 

Miranda waiver was not voluntary. Id. at 157, 612 P.2d at 1134. 
22 

¶ 50 Here, Bryant argues that his Miranda waiver was invalid 

because it was not made knowingly and intelligently. He does not 

argue that his waiver was involuntary. Nonetheless, his reliance on 

Fordyce is misplaced. 

¶ 51 Unlike in Fordyce, there was no evidence adduced at the 

suppression hearing, expert or otherwise, to support Bryant’s 

contention that, despite testimony from Officers Ortiz and Fink to 

the contrary, he was sufficiently intoxicated to be incapable of 

giving a knowing and intelligent waiver of his Miranda rights. 

Indeed, the only evidence presented at the suppression hearing 

regarding Bryant’s intoxication was in relation to his behavior at the 

time of his arrest and during the drive to the jail. As discussed 

above, however, Officers Ortiz and Fink both testified that Bryant’s 

demeanor changed between that time and when he was given his 

Miranda advisement. 

¶ 52 Accordingly, we defer to the trial court’s findings as supported 

by the record and conclude that the court did not err by finding 

that Bryant validly waived his Miranda rights. 
23 

III. Expert Police Testimony 

¶ 53 Bryant contends that the trial court reversibly erred by 

allowing Officer Fink to testify as a lay witness regarding the 

meaning of the term “sherm.” He argues that Officer Fink’s 

testimony constituted expert opinion testimony under CRE 702, 

and that it was, therefore, improperly admitted under the guise of 

lay opinion testimony under CRE 701. Bryant further argues that 

this alleged error is reversible because Officer Fink’s testimony that 

“sherm” was street slang for “PCP” was key testimony to prove that 

he knowingly possessed a controlled substance. 

¶ 54 We agree with Bryant that Officer Fink’s testimony constituted 

expert opinion testimony. However, we conclude that the trial 

court’s error in admitting his testimony was harmless. 

A. Standard of Review and Applicable Law 

¶ 55 We review a trial court’s evidentiary rulings for an abuse of 

discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. The trial court 

abuses its discretion when its ruling is manifestly arbitrary, 

unreasonable, or unfair, or when it applies the incorrect legal 

standard. People v. Russell, 2014 COA 21M, ¶ 22, aff’d, 2017 CO 

3. 
24 

¶ 56 In this instance, whether the trial court abused its discretion 

turns on whether Officer Fink’s testimony was improper under CRE 

701, which governs the admission of opinion testimony by a lay 

witness. Under CRE 701, a lay witness’ testimony is limited to 

“opinions or inferences” that are “(a) rationally based on the 

perception of the witness, (b) helpful to a clear understanding of the 

witness’ testimony or the determination of a fact in issue, and (c) 

not based on scientific, technical, or other specialized knowledge 

within the scope of [CRE] 702.” 

¶ 57 CRE 702 governs the admission of expert opinion testimony 

and states that “[i]f scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or 

to determine a fact in issue, a witness qualified as an expert by 

knowledge, skill, experience, training, or education, may testify 

thereto in the form of an opinion or otherwise.” 

¶ 58 In determining whether testimony constitutes lay opinion 

testimony under CRE 701 or expert opinion testimony under CRE 

702, a court must look to the basis for the witness’ opinion. 

Venalonzo, ¶ 22. In particular, a court must look to “the nature of 

the experiences that could form the opinion’s basis” rather than 
25 

simply asking whether a witness draws on his or her personal 

experiences to inform the testimony. Id.; see People v. Veren, 140 

P.3d 131, 137 (Colo. App. 2005). 

¶ 59 In making that determination, a court should consider 

“whether ordinary citizens can be expected to have known the 

information or have had the experiences that form the basis of the 

opinion.” People v. Ramos, 2012 COA 191, ¶ 13, aff’d, 2017 CO 6. 

“If the witness provides testimony that could be expected to be 

based on an ordinary person’s experiences or knowledge, then the 

witness is offering lay testimony.” Venalonzo, ¶ 23. Expert 

testimony, by contrast, goes beyond the realm of common 

experience. “If . . . the witness provides testimony that could not be 

offered without specialized experiences, knowledge, or training, then 

the witness is offering expert testimony.” Id. 

¶ 60 Police officers may testify as lay witnesses “based on their 

perceptions and experiences,” People v. Stewart, 55 P.3d 107, 123 

(Colo. 2002), but “[w]here an officer’s testimony is based not only on 

his or her perceptions, observations, and experiences, but also on 

the officer’s specialized training or education, the officer must be 
26 

properly qualified as an expert before offering testimony that 

amounts to expert testimony.” Veren, 140 P.3d at 137. 

¶ 61 Where, as here, the issue is preserved and nonconstitutional, 

we will review any error for harmless error. Venalonzo, ¶ 48. We 

will only reverse under a harmless error review if the error “affects 

the substantial rights of the parties.” Hagos v. People, 2012 CO 63, 

¶ 12. An error affects a party’s substantial rights when it 

“substantially influenced the verdict or affected the fairness of the 

trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 

(Colo. 1986)). 

B. Analysis 

1. Lay or Expert Testimony 

¶ 62 First, for the reasons below, we conclude that Officer Fink’s 

testimony as to the meaning of the term “sherm” was expert opinion 

testimony, improperly admitted as lay testimony under CRE 701. 

¶ 63 Bryant objected to Officer Fink’s testimony on the meaning of 

the slang term “sherm” at trial, and the court overruled his 

objection. This testimony relied on Officer Fink’s specialized 

training and experience as a police officer who had worked for 

fourteen years as an officer at both the Aurora Police Department 
27 

and the Los Angeles Police Department. Accordingly, he should 

have been disclosed and qualified as an expert witness, and it was 

error to admit his testimony under the guise of lay opinion. 

¶ 64 A hallmark of expert testimony by law enforcement officers is 

that an officer testifies as to his extensive experience in the field. 

So are the prosecutor advising the court that the witness is 

testifying based on his training and experience, and the officer 

testifying not based on personal knowledge or investigation of the 

case. See Ramos, ¶ 18. 

¶ 65 Here, the prosecutor prefaced his inquiry of Officer Fink with 

questions expressly related to his training and experience, and he 

emphasized that his testimony was based on that training and 

experience: 

Q Okay. Now, Officer Fink, you’ve indicated 

you have been an officer for approximately nine 

years; is that correct?

A 15 total – or 14 total. 

Q Nine years with the Aurora Police 

Department? 

A Yes. 

Q And you had prior law enforcement 

experience before coming to Aurora?

A Yes, sir. 

Q Where was that at? 

A Los Angeles Police Department. 
28 

Q Now, Officer Fink, have you heard the term 

“sherm” before? 

A Yes, sir. 

Q Okay. Have you heard the term “sherm” 

related in the context to drugs? 

A Yes. 

Q Okay. Where have you heard this term 

before? 

A Through my training and experience. 

“Sherm” is the street slang for PCP. 

Q So through your experience, you’ve heard 

“sherm” being used as, I guess, a lay term for 

the drug PCP? 

A Yes. 

(Emphasis added.) 

¶ 66 Moreover, Officer Fink’s testimony that “sherm” is street slang 

for “PCP” was not based on his personal knowledge or investigation 

of Bryant’s case, but was instead based on his training and 

experience as a police officer. We find it instructive that Officer 

Ortiz, who was a new officer in the field training program, did not 

know that “sherm” meant “PCP,” but his training officer (Officer 

Fink) did know the meaning of that term based on his own 

specialized training and experiences. 

¶ 67 Expert testimony, by definition, “goes beyond the realm of 

common experience and requires experience, skills, or knowledge 

that the ordinary person would not have.” Venalonzo, ¶ 22. In our 
29 

view, an ordinary person would not have the experience, skills, or 

knowledge to be able to define “sherm” as meaning “PCP.” 

¶ 68 Contrary to the People’s argument, it is not enough that the 

ordinary person would be familiar with the concept of slang words, 

or that the ordinary person would know that slang terms exist for 

drugs. Rather, the key to Officer Fink’s testimony, which rendered 

it expert in nature, was that he was able to identify a particular 

slang term not used in the common vernacular as meaning a 

particular drug. 

¶ 69 We are aware of only one Colorado appellate opinion that has 

discussed the meaning of street slang terms. In People v. Glover, 

2015 COA 16, a detective testified as to the meaning of several 

terms of street slang. In that case, however, the terms at issue were 

used on Facebook and did not involve the names of any illegal 

substances. Instead, the detective in Glover explained that “‘fam’ 

meant the street family, ‘wea at’ meant ‘we are at,’ ‘he bitched out’ 

meant that the person ran away, and ‘we still havin 5’ was a 

reference to a meeting somewhere to talk.” ¶ 46. The division in 

Glover reasoned that the meaning of these slang terms could be 

determined “‘from a process of reasoning familiar in everyday life,’ 
30 

rather than ‘a process of reasoning which can be mastered only by 

specialists in the field.’” ¶ 53 (quoting People v. Rincon, 140 P.3d 

976, 983 (Colo. App. 2005)).3 

¶ 70 As more recently clarified by our supreme court in Venalonzo, 

however, the test for whether testimony is expert or lay rests on the 

“nature of the experiences that could form the opinion’s basis” 

rather than the “process of reasoning.” ¶ 22. The terms discussed 

in Glover closely resemble the words they stand for, are phonetically 

indicative of the meaning, or are otherwise used frequently enough 

in the common vernacular so that their meaning would be evident 

to someone with ordinary experiences and knowledge. By contrast, 

the word “sherm” is not a word that is likely to be known by 

someone with ordinary experiences and knowledge. 

¶ 71 To be sure, there are some drug-related slang terms that an 

ordinary person would know because those terms have entered the 

common vernacular through music, television, radio, film, etc. 

Terms such as “pot” or “crack” would be recognized and identified 

 

3 When discussing “a process of reasoning which can be mastered 

only by specialists in the field,” People v. Rincon relied in part on the 

advisory committee note to Fed. R. Evid. 701. 140 P.3d 976, 982-

83 (Colo. App. 2005). 
31 

based on an ordinary person’s everyday experiences and knowledge. 

See State v. Hyman, 168 A.3d 1194, 1204 (N.J. Super. Ct. App. Div. 

2017) (“Some [drug culture slang or code] words may have entered 

the popular lexicon as a result of music, film, and other aspects of 

modern culture, obviating the need for opinion testimony.”). 

¶ 72 “Sherm,” on the other hand, falls into the category of drugrelated slang that has yet to enter the common vernacular and 

would only be known by someone with intimate knowledge of drug 

culture or who has participated in the drug trade. Thus, Officer 

Fink’s definition of “sherm” at trial fell squarely into the realm of 

expert testimony. 

¶ 73 We note that other jurisdictions have likewise determined that 

the act of defining drug-related slang is expert rather than lay 

testimony. See United States v. Smith, 640 F.3d 358, 365 (D.C. Cir. 

2011) (ruling that an FBI agent’s testimony at trial defining drugrelated slang constituted expert testimony); Hyman, 168 A.3d at 

1208 (ruling that a detective’s testimony at trial defining drugrelated slang and code words constituted expert testimony); see also 

United States v. Garcia, 291 F.3d 127, 139 n.9 (2d Cir. 2002) (“If [a 

drug dealer] offered his opinion on the allegedly coded conversation 
32 

and [the defendant’s] knowledge based on his ‘past experiences in 

drug dealing,’ his opinion was not based on his perception of the 

situation as a participant in it” and therefore constituted expert 

testimony.); United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 

2001) (noting that law enforcement officers are often qualified as 

experts to interpret intercepted conversations using slang, street 

language, and the jargon of the illegal drug trade). 

2. Harmless Error 

¶ 74 However, while we conclude that the trial court erred in 

allowing Officer Fink to testify as a lay witness as to the meaning of 

“sherm,” we also conclude that the error was harmless. See People 

v. Froehler, 2015 COA 102, ¶ 38. 

¶ 75 Bryant argues that Officer Fink’s testimony that “sherm” 

means “PCP” was key testimony relied upon by the prosecution to 

prove that Bryant knowingly possessed a controlled substance. A 

review of the record, however, suggests otherwise. 

¶ 76 The question before us is whether the erroneous admission of 

Officer Fink’s testimony at trial that “‘[s]herm’ is the street slang for 

PCP” was harmless. Contrary to Bryant’s arguments, we fail to see 

how this testimony could have been a key factor in establishing 
33 

Bryant’s knowledge that the substance he possessed was “PCP.” 

See, e.g., id. at ¶ 40 (noting that evidence about computer software 

used to search the defendant’s home computers had no direct 

bearing on whether the defendant “knowingly possessed” child 

pornography on a flash drive). 

¶ 77 At best, Officer Fink’s testimony was cumulative of other 

evidence presented at trial that served to prove the “knowingly” 

element of the possession charge, see id. at ¶¶ 41-42, including the 

fact that Bryant admitted during interrogation that the substance 

he volunteered to Officers Ortiz and Fink, and which he initially 

identified as “sherm,” was “PCP,” and that a chemical analysis 

conducted on that same substance proved that the substance was 

indeed “PCP.” 

¶ 78 Officer Fink’s testimony is therefore easily distinguished from 

testimony whose admission was deemed not harmless in other 

cases. In Veren, two officers gave lay opinion testimony “that 

possession of large amounts of pseudoephedrine in combination 

with the other chemicals and supplies found in defendant’s truck 

indicated an intent to manufacture methamphetamine.” 140 P.3d 

at 139. A division of this court determined that “the two officers 
34 

were essentially allowed to give expert testimony under the guise of 

lay opinions,” and that such testimony was key testimony proving 

that “the items found in defendant’s truck were precursors and 

materials used in the manufacture of methamphetamine.” Id. at 

140. Because the challenged evidence in that case was not 

cumulative of other properly admitted evidence, the division 

concluded that admission of the officers’ opinion testimony was not 

harmless. Id.

¶ 79 We are likewise unpersuaded by Bryant’s conclusory 

argument that the erroneous admission of Officer Fink’s testimony 

prevented him from presenting his own expert witness to rebut 

Officer Fink’s testimony. We fail to see, and Bryant has not 

identified, what kind of expert testimony could have been offered to 

rebut the simple definition by Officer Fink that “sherm” is “PCP,” 

and we also do not perceive how any potential rebuttal could have 

negated the evidence otherwise properly admitted that Bryant 

knowingly possessed “PCP.” See Froehler, ¶ 43. 

¶ 80 Additionally, we note that the majority of Officer Fink’s 

testimony was proper under CRE 701 as lay opinion testimony, 
35 

including his observations and inferences about Bryant’s behavior 

prior to his arrest and during the interrogation. 

¶ 81 Considering all of the above, we conclude that Officer Fink’s 

testimony that “sherm” means “PCP” did not have a substantial 

influence on the verdict or impair the fairness of the trial. 

Accordingly, the error was harmless and thus not reversible. See 

Stewart, 55 P.3d at 124 (“A ruling admitting or excluding evidence 

is not reversible unless the ruling affects a substantial right of the 

party against whom the ruling is made.”); Froehler, ¶ 44. 

IV. Jury Instructions 

¶ 82 Bryant contends that the trial court erred by instructing the 

jury that voluntary intoxication was an invalid defense to the 

charged crimes, arguing that the instruction was superfluous and 

unrelated to the issues in controversy. He also contends that the 

trial court erred by rejecting his tendered mens rea jury instruction, 

arguing that the instruction given instead did not provide the jury 

with the full and accurate definition of what the prosecutor had to 

prove relating to culpable mental state. Finally, Bryant contends 

that these errors, both individually and cumulatively, mandate 

reversal. We disagree. 
36 

A. Standard of Review and Applicable Law 

¶ 83 A trial court has a duty to correctly instruct the jury on the 

governing law, properly, plainly, and accurately, but it has broad 

discretion over the form and style of the instructions so long as they 

are correct statements of the law. People v. Pahl, 169 P.3d 169, 183 

(Colo. App. 2006). “The trial court should instruct the jury on a 

principle of law when there is some evidence to support the 

instruction.” People v. Montoya, 928 P.2d 781, 783 (Colo. App. 

1996). A trial court should not, however, instruct the jury on an 

abstract principle of law unrelated to the issues in controversy. Id. 

at 784. 

¶ 84 “While the court is duty-bound to instruct the jury, ‘it is 

equally the duty of counsel to assist the court by objection to 

erroneous instructions, and by the tender of instructions covering 

matters omitted by the court.’” Stewart, 55 P.3d at 120 (quoting 

Fresquez v. People, 178 Colo. 220, 232, 497 P.2d 1246, 1252 (Colo. 

1972)). 

¶ 85 We review jury instructions de novo to determine whether they 

accurately informed the jury of the governing law, but we review 

questions of form and style for an abuse of discretion. Townsend v. 
37 

People, 252 P.3d 1108, 1111 (Colo. 2011). Whether additional jury 

instructions may be given is also a matter committed to the sound 

discretion of the trial court. People v. Burke, 937 P.2d 886, 890 

(Colo. App. 1996). If the instructions, taken as a whole, properly 

instructed the jury on the governing law, there is no error. People v. 

Merklin, 80 P.3d 921, 926 (Colo. App. 2003). 

¶ 86 Under Colorado law, we often find no error, or no reversible 

error, where a trial court gave a superfluous instruction to the jury. 

See, e.g., People v. Weeks, 2015 COA 77, ¶ 59 (not plain error to 

include superfluous elements in instruction); People v. Ujaama, 

2012 COA 36, ¶ 50 (not plain error to include superfluous 

instructions); People v. Manzanares, 942 P.2d 1235, 1241-42 (Colo. 

App. 1996) (error was harmless where superfluous instruction 

given); People v. Baca, 852 P.2d 1302, 1306 (Colo. App. 1992) 

(inclusion of an unnecessary instruction was not reversible error);

Kaesik v. John E. Mitchell Co., 30 Colo. App. 227, 231, 492 P.2d 

871, 873 (1971) (not error to give superfluous instruction), aff’d, 

181 Colo. 19, 506 P.2d 362 (1973) (per curiam). 

¶ 87 Instructional error occurs where an instruction misleads or 

confuses the jury. Williams v. Chrysler Ins. Co., 928 P.2d 1375, 
38 

1377 (Colo. App. 1996). “But, language in a jury instruction cannot 

be a ground for reversal unless it prejudices a party’s substantial 

rights.” Id. at 1378. 

B. Analysis 

1. Intoxication Instruction 

¶ 88 At trial, the prosecutor requested a four-paragraph jury 

instruction explaining that voluntary intoxication was not a valid 

defense to any of the charged crimes. Bryant objected to the 

entirety of the requested instruction, but stated that if the trial 

court was inclined to give an instruction on the invalidity of such a 

defense, the instruction should be limited to the first two sentences 

of the prosecution’s tendered instruction. 

¶ 89 The trial court overruled Bryant’s objection, but limited the 

instruction to the jury, using only the first two sentences of the 

prosecution’s instruction, which stated, “Voluntary Intoxication is 

not a defense to the charge of Possession of a Scheduled [sic] I/II 

Controlled Substance. Voluntary Intoxication is not a defense to 

the charge of Assault in the Third Degree.” 

¶ 90 Although Bryant did not argue a defense based on voluntary 

intoxication, he did base his defense on the theory that he did not 
39 

possess the requisite culpable mental state to commit the charged 

crimes, in large part because of his intoxication. Indeed, Bryant 

repeatedly argued at trial that he was intoxicated at the time of his 

arrest, and thus was incapable of forming the requisite mental state 

to be guilty of knowingly possessing a controlled substance and 

assaulting two individuals. 

¶ 91 Under these circumstances, we conclude that the instruction 

that voluntary intoxication was not a valid defense to the charged 

crimes did not constitute error. In all likelihood, the instruction 

served to prevent any confusion for the jury in its determination of 

whether Bryant possessed the culpable mental state required for a 

guilty verdict. Accordingly, the instruction did not contain “abstract 

legal principles unrelated to the issues in controversy.” Montoya, 

928 P.2d at 784. 

¶ 92 Thus, we conclude that the inclusion of this instruction, even 

if superfluous, could not have confused the jury, especially because 

it was very brief and contained a correct statement of the law. See, 

e.g., Kaesik, 30 Colo. App. 231, 492 P.2d at 873. 

¶ 93 Accordingly, under these circumstances, the inclusion of this 

instruction did not amount to error, let alone reversible error. 
40 

2. Mens Rea Instruction 

¶ 94 At trial, Bryant also argued that the jury should consider his 

education and cognitive impairments, or lack of impairments, when 

determining whether he possessed the requisite mental state to 

commit the charged crimes. He therefore asked the trial court to 

use the following mens rea instruction, taken from People v. 

Heywood, 2014 COA 99, ¶ 18, which quotes Oram v. People, 255 

P.3d 1032, 1038 (Colo. 2011): 

The mental state of “knowingly” is a subjective, 

rather than an objective, standard and does 

not include a reasonable care standard. 

Therefore, circumstances where a defendant 

may reasonably be aware that his conduct is of 

such a nature or that such circumstances 

exist are insufficient to fulfill the knowingly 

mental state. 

¶ 95 The prosecutor objected to Bryant’s tendered mens rea 

instruction, arguing that it was confusing and that the trial court 

had already provided a proper instruction on culpable mental state. 

Additionally, the prosecutor argued that the tendered instruction 

was contrary to the law on voluntary intoxication, citing 

Hendershott v. People, 653 P.2d 385 (Colo. 1982). 
41 

¶ 96 The pattern instruction on mens rea given at trial stated, as 

relevant here, as follows: 

A person acts “knowingly” with respect to 

conduct or to a circumstance described by a 

statute defining an offense when he is aware 

that his conduct is of such nature or that such 

a circumstance exists. A person acts 

“knowingly” with respect to a result of his

conduct when he is aware that his conduct is 

practically certain to cause the result. 

(Emphasis added.) 

¶ 97 On appeal, Bryant contends that the pattern instruction “did 

not give the jury a full and accurate definition of what the 

prosecutor must prove relating to [Bryant’s] culpable mental state,” 

arguing that the instruction did not accurately inform the jury that 

“knowingly” is a subjective standard. To the extent that Bryant 

argues that the pattern instruction is legally inaccurate, however, 

we disagree. 

¶ 98 By its plain language, the pattern instruction clearly directs 

the jury to apply a subjective test, stating that a person acts 

“knowingly” only “when he is aware that his conduct is of such 

nature of that such a circumstance exists” or “when he is aware 

that his conduct is practically certain to cause the result.” 
42 

(Emphasis added.) The instruction thus plainly directed the jurors 

to consider whether Bryant acted knowingly, and in no way 

suggested that they should apply an objective or reasonable person 

test. 

¶ 99 Bryant points to language from Heywood and Oram in arguing 

that his tendered instruction should have been used instead of the 

applicable pattern instruction, but neither of those cases discusses 

the mental state of “knowingly” in terms of how a trial court should 

instruct a jury, and neither case required that its language be used 

when instructing future juries. Rather, it is well established that 

“[a] district court has substantial discretion in formulating the jury 

instructions, so long as they are correct statements of the law and 

fairly and adequately cover the issues presented.” People v. Romero, 

197 P.3d 302, 309 (Colo. App. 2008). 

¶ 100 Here, the instruction given by the court was legally correct and 

adequately informed the jury to apply a subjective standard rather 

than an objective standard. Accordingly, the trial court did not err 

by providing the applicable mens rea pattern instruction, nor did it 

err by denying Bryant’s tendered instruction. See People v. Inman, 

950 P.2d 640, 645 (Colo. App. 1997) (“[A] trial court may properly 
43 

refuse an instruction which merely restates points already 

encompassed in other instructions given to the jury . . . .”). 

¶ 101 Because we conclude that there was no error in the manner in 

which the trial court instructed the jury, we necessarily reject 

Bryant’s contention that reversal is mandated based on cumulative 

error. 

V. Conclusion 

¶ 102 The judgment is affirmed. 

JUDGE DAVIDSON and JUDGE MÁRQUEZ concur.