of Appeals No. 18CA0283 Mesa County District Court No.
15CR653 Honorable Valerie J. Robison, Judge
J. Weiser, Attorney General, Frank R. Lawson, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Cameron Scott Payne, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
resisting arrest, disorderly conduct, and second degree
assault while lawfully confined or in custody. Payne asserts
that the trial court erred by (1) allowing lay witness
testimony that usurped the jury's role; (2) failing to
provide a definitional jury instruction on "lawfully
confined or in custody"; (3) allowing the prosecutor to
give a rebuttal closing statement after waiving initial
closing remarks; and (4) tolerating prosecutorial misconduct
when the prosecutor misstated the law in rebuttal closing.
Because none of Payne's contentions of error warrant
reversal, we affirm the judgment of conviction.
2 In May 2015, two Grand Junction police officers patrolling
the downtown area heard a man screaming and cursing in the
street. When the officers approached the man, later
identified as Payne, he aggressively turned toward the
officers and ignored their commands to stop. The officers
placed him in handcuffs, called for backup, and were
escorting Payne out of the street and toward their police car
when he kicked one of the officers in the groin. A jury found
Payne guilty of all charges except for second degree assault,
bodily injury on a peace officer.
3 Payne contends that the trial court reversibly erred by
admitting lay witness testimony that he was "lawfully
confined or in custody," thereby usurping the jury's
role to decide whether he was confined or in custody. We
4 At trial, Officer Jason Evans testified as a lay witness
for the prosecution. In discussing Payne's arrest, the
following colloquy occurred:
[Prosecutor]: Was . . . Payne, compliant when you instructed
him to stop and then had to go and put handcuffs on him?
[Officer Evans]: No, ma'am.
[Prosecutor]: At this point did you consider that he was
lawfully confined or in custody?
[Officer Evans]: At that point he was not free to leave.
[Prosecutor]: Did you consider that he was lawfully confined
or in custody?
[Officer Evans]: Yes, ma'am.
Preservation and Standard of Review
5 We review a trial court's decision to admit testimony
for an abuse of discretion. People v. Robles-Sierra,
2018 COA 28, ¶ 23. An abuse of discretion occurs when a
trial court's ruling is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law.
People v. Casias, 2012 COA 117, ¶ 29.
6 Because Payne did not preserve this issue for appeal, we
apply plain error review. Hagos v. People, 2012 CO
63, ¶ 14. Thus, we reverse only if any error was obvious
and substantial, meaning the error so undermined the
fundamental fairness of the trial itself as to cast serious
doubt on the reliability of the judgment of conviction.
7 A testifying witness may not usurp the jury's
factfinding role. Robles-Sierra, ¶ 24. However,
CRE 704 provides that opinion testimony that is
"otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of
fact." In determining whether witness testimony usurped
the function of the jury, we may consider whether (1) the
witness opined that the defendant committed or likely
committed the crime; (2) the testimony was clarified on
cross-examination; (3) the expert's testimony usurped the
trial court's function by expressing an opinion on the
applicable law or legal standard; and (4) the jury was
properly instructed on the law and that it could accept or
reject the witness' opinion. People v. Rector,
248 P.3d 1196, 1203 (Colo. 2011). Payne does not challenge
the third factor.
8 While the second degree assault statute, section
18-3-203(1)(f), C.R.S. 2019, does not define "lawfully
confined or in custody," the terms have distinct
meanings under Colorado law. See People v. Olinger,
39 Colo.App. 491, 493, 566 P.2d 1367, 1368 (1977) ("It
is apparent that the legislature intended the word
'confined' to have a meaning different from and to be
more restrictive than 'custody[.]'"). A person
is confined when detained in an institution. Id. A
person is in custody for section 18-3-203(1)(f) purposes when
a police officer has "applied a level of physical
control over the person being detained so as reasonably to
ensure that the person does not leave." People v.
Rawson, 97 P.3d 315, 323 (Colo.App. 2004); see also
People in Interest of D.S.L., 134 P.3d 522, 525
(Colo.App. 2006) (To be deemed to be in custody under section
18-3-203(1)(f), "[a]ll that is required is that the
'peace officer must have applied a level of physical
control over the person being detained so as reasonably to
ensure that the person does not leave.'" (quoting
Rawson, 97 P.3d at 323)); People v. Ortega,
899 P.2d 236, 238 (Colo.App. 1994) (concluding that a formal
arrest was not required; handcuffing the defendant to a wall
was sufficient to establish that he was in custody for
purposes of section 18-3-203(1)(f)).
9 Payne argues that Officer Evans' testimony that Payne
was not free to leave and that he was "lawfully confined
or in custody" improperly usurped the jury's role.
He asserts that allowing the testimony constituted reversible
error because the testimony expressed a legal opinion,
Payne's counsel did not clarify the opinion on
cross-examination, and the jury was never given a definition
for "lawfully confined or in custody."
10 Although Payne's counsel cross-examined Officer Evans,
he did not clarify Officer Evans' testimony that Payne
was in custody after he was handcuffed. However, Officer
Evans' testimony fell short of stating that Payne
committed second degree assault while lawfully confined or in
custody. See Rector, 248 P.3d at 1203. Rather, he
stated that, in his opinion, Payne was not free to leave and
was in custody after he was handcuffed, addressing one
element of Payne's second degree assault charge.
See CRE 704; see also Ortega, 899 P.2d at
238. While the jury was not given an instructional definition
for "lawfully confined or in custody," that alone
does not render Officer Evans' testimony improper,
especially given its brevity. See People v. Rivera,
56 P.3d 1155, 1164 (Colo.App. 2002) (Even if a "witness
opines with respect to an ultimate issue, the jury retains
its authority to determine the facts from the evidence and
accept or reject such opinions."). And the jurors were
properly instructed that they were the "sole judges of
the credibility of each witness and the weight to be given to
the witness' testimony," and that they were free to
"believe all of the testimony of a witness, part of it,
or none of it." See Rector, 248 P.3d at 1203
("[T]he jury was properly instructed on the law and its
ability to accept or reject" testimony.).
11 Whether Payne was in custody for purposes of committing
second degree assault was a factual determination for the
jury to decide. See People v. Armstrong, 720 P.2d
165, 169 (Colo. 1986) ("It is for the trier of fact to
determine after the evidence has been presented at trial
whether, under the totality of the circumstances, [the
defendant] may be guilty of . . . second degree
assault[.]"). Officer Evans' description of
Payne's arrest was useful for the jury to determine
whether Payne was in custody at the time of the charged
12 Accordingly, the trial court did not abuse its discretion
by allowing Officer Evans' testimony, and thus we
perceive no plain error. Se ...