People v. James M. Duncan

     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.


                                                                 SUMMARY
                                                          December 21, 2023

                               

No. 22CA1114, People v. Duncan — Crimes — Provisions
Applicable to Offenses Generally — Definitions — Serious
Bodily Injury — Protracted

     A division of the court of appeals holds that the word

“protracted,” as used in the definition of “serious bodily injury,”

§ 18-1-901(3)(p), C.R.S. 2023, means “prolonged, continued, or

extended” but does not necessarily mean “permanent.”

     Using this definition, the division rejects the defendant’s

argument that insufficient evidence supported the jury’s finding

that the defendant caused the victim to suffer serious bodily injury.

Because it also rejects the defendant’s other challenges, the division

affirms the judgment.
COLORADO COURT OF APPEALS                                       

Court of Appeals No. 22CA1114
City and County of Denver District Court No. 21CR957
Honorable Brian R. Whitney, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

James M. Duncan,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division IV
                           Opinion by JUDGE LUM
                        Navarro and Grove, JJ., concur

                        Announced December 21, 2023


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
¶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


                                   1
 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


                                      2
 day before” the appointment. Dr. Mann determined 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.




                                     3
                              A.    Protracted

¶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,

  

.

¶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.

¶ 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,

  

; People v. Jaramillo, 

 (Colo. App.


                                      4
  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.

¶ 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, 

, 

 (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, 

 (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


                                    5
  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.

¶ 13   Other language in the statutory definition of serious bodily

  injury supports the distinction between protracted and permanent.

  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, 

, ¶ 39 (“[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


                                     6
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, 

 (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.”).




1 We reject Duncan’s suggestion that People v. Jaramillo, 

 (Colo. App. 2008), supports his contention that the General
Assembly intended “protracted” to mean “permanent,” even though
it used the word “permanent” earlier in section 18-1-901(3)(p),
C.R.S. 2023. Jaramillo interpreted the phrase “serious bodily
injury,” which involves “breaks,” “fractures,” and other types of
wounds. 

 at 670-71 (quoting § 18-1-901(3)(p), C.R.S. 2007). The
court noted that the dictionary definition of “fracture” is “the
breaking of hard tissue (as a bone, tooth, or cartilage).” Id. at 671
(quoting Webster’s Third New International Dictionary 901 (1986)).
Duncan highlights Jaramillo’s use of the word “breaking” within the
definition of “fracture,” arguing that different words in the statute
(“break” and “fracture”) can have the same meaning. But Jaramillo
was not focused on distinguishing between “breaks” and
“fractures.” Rather, the sole issue in Jaramillo was whether the
word “fracture” included a fracture of cartilage or whether it was
limited to a fracture of bone. Id. at 670. And while the statute
plainly includes both “breaks” and “fractures” within the meaning of
“serious bodily injury,” “permanent” and “protracted” modify
different types of injuries, implying that the General Assembly
intended for those injuries to have different time requirements
before qualifying as a “serious bodily injury.” See People v. Ryan,

, ¶ 39.

                                   7
¶ 14   Relying on People v. Dominguez, Duncan argues that, because

  protracted and permanent lack a “sufficiently pragmatic difference,”

  protracted necessarily means permanent. 

, 

 (1977) (quoting People v. Calvaresi, 

,

  

 (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, 

. 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. 

, 

.

¶ 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.” 

 (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


                                     8
  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,

  

, 

). Thus, the statute violated equal

  protection guarantees. 

¶ 16   But the holding in Dominguez does not compel us to accept

  Duncan’s definition because Dominguez did not define “protracted,”

  much less define it to mean “permanent” and nothing less than

  permanent. In fact, the court noted that “[w]hether a particular

  injury will involve a ‘permanent’ or ‘protracted’ loss is frequently not

  even ascertainable at the time of trial.” 

 This language suggests

  that the supreme court recognized a difference between

  “permanent” and merely “protracted” but also recognized a potential

  practical difficulty in discerning which category the loss would fall

  into when the case was tried. And as we explained above, while a

  “permanent” loss also qualifies as a “protracted” loss, a loss does

  not need to be permanent to be protracted — it simply needs to be

  prolonged.


                                     9
¶ 17   Duncan also cites two cases that followed Dominguez, claiming

  they bolster the notion that protracted means permanent and

  nothing less than permanent. We disagree. People v. Brown, 

 (Colo. App. 1983), and People v. Thompson, 

 (Colo. 1988), both involved injuries that caused, or

  substantially risked causing, a permanent loss or impairment of a

  bodily function. However, these cases merely confirm that a

  protracted loss can be permanent. Brown, 

;

  Thompson, 

. It does not follow that the loss must be

  permanent.

                             B.    Application

¶ 18   Having determined that “protracted” means “prolonged,” but

  not necessarily “permanent,” we consider whether the jury had

  sufficient evidence to convict Duncan for causing Phalen an 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.”2 § 18-1-901(3)(p).


  2 Duncan does not contend that the jury had insufficient evidence

  to find that he caused the perforated eardrum. His argument
  focuses instead on whether the perforated eardrum was a serious
  bodily injury under the meaning of the statute.

                                     10
¶ 19   In reviewing the sufficiency of the evidence, we examine

  “whether the evidence before the jury was sufficient both in

  quantity and quality to sustain the defendant’s conviction.”

  Johnson, ¶ 13 (citation omitted). We consider whether the relevant

  evidence, “when viewed as a whole and in the light most favorable

  to the prosecution, is substantial and sufficient to support a

  conclusion by a reasonable mind that the defendant is guilty of the

  charge beyond a reasonable doubt.” Id. (citation omitted).

¶ 20   Dr. Mann testified as follows:

        Phalen suffered a hole covering ten percent of her eardrum

          consistent with a sudden increase of pressure caused by a

          physical blow to her ear.

        The hole in Phalen’s eardrum would typically cause hearing

          loss.

        Most of the time, this type of injury heals on its own in four

          to eight weeks, although some people are unable to heal

          and require surgery or hearing aids.

¶ 21   Phalen testified that, after Duncan’s strike, she suffered a loss

  of hearing in her left ear for five months, until the day before her

  second examination with Dr. Mann. And she affirmed that nothing

                                      11
  other than Duncan striking her would have caused the perforation

  and loss of hearing. Although her hearing test was normal at the

  second examination, she also testified that she remained unable to

  hear low tones.

¶ 22   Viewing this evidence in the light most favorable to the

  prosecution, there was substantial and sufficient evidence for the

  jury to convict Duncan of second degree assault. Even though

  Phalen eventually recovered (or mostly recovered) her hearing, it

  was reasonable for the jury to conclude that the injury involved a

  “substantial risk of protracted loss or impairment of the function of

  any part or organ of the body” based on (1) the injury itself; (2) Dr.

  Mann’s testimony that such an injury typically causes hearing loss,

  which usually resolves within four to eight weeks; and (3) Phalen’s

  testimony that she did suffer hearing loss for five months. See id.;

  People v. Rodriguez, 

 (Colo. App. 1994) (“The fact

  that the victim healed well and made a good recovery is not relevant

  to the determination that he suffered a serious bodily injury.”); see

  also Thompson, ¶ 42, 

 (loss of hearing for one

  month was “sufficiently lengthy to be categorized as a protracted

  impairment of a bodily function”).


                                    12
                    III.   Unconstitutional Vagueness

¶ 23   Duncan next contends that the definition of “serious bodily

  injury” is unconstitutionally vague, both facially and as applied,

  because the word “protracted” could mean an injury that extends

  for any period of time, from mere minutes to permanently.

¶ 24   We decline to address Duncan’s unpreserved claim that the

  statute is unconstitutionally vague as applied because as-applied

  challenges ordinarily require development of a factual record.

  People v. Stone, 

 (“[I]t is imperative that the trial

  court make some factual record that indicates what causes the

  statute to be unconstitutional as applied.” (quoting People v. Veren,

  

 (Colo. App. 2005))).

¶ 25   Regarding Duncan’s unpreserved facial vagueness challenge,

  “an appellate court ‘may, as a matter of discretion, take up an

  unpreserved challenge to the constitutionality of a statute, but only

  where doing so would clearly further judicial economy.’” People v.

  Mountjoy, 

 (citation omitted), aff’d on other

  grounds, 

. Duncan does not explain, nor do we

  discern, how exercising our discretion to review his facial vagueness

  challenge would further judicial economy.


                                    13
¶ 26   But even if we were to review the unpreserved challenge, we

  would not discern plain error. Hagos v. People, 

  (applying plain error to all unpreserved constitutional errors that

  are not structural error).3

¶ 27   Plain error is error that is “obvious and substantial and that

  so undermined the fundamental fairness of the trial itself as to cast

  serious doubt on the reliability of the judgment of conviction.”

  People v. Robinson, 

. For an error to be obvious,

  “the action challenged on appeal must contravene (1) a clear

  statutory command, (2) a well-settled legal principle, or

  ([3]) Colorado case law.” People v. Pollard, 

, ¶ 40

  (citations omitted).

¶ 28   The Colorado Supreme Court has already concluded that there

  is “nothing vague in the definition of ‘serious bodily injury.’” People

  v. Jackson, 

, 

 (1977).4 And a


  3 We reject Duncan’s suggestion that structural error applies in this

  case. See Johnson v. People, 

 (applying plain error
  review to unpreserved vagueness challenge).
  4 At the time People v. Jackson was decided, the definition of

  “serious bodily injury” included the phrase “protracted loss or
  impairment of the function of any part or organ of the body.” 

, 

 (1977) (quoting § 18-1-901(3)(p),
  C.R.S. 1973).

                                    14
division of this court has likewise held that the definition of “serious

bodily injury” is “not unconstitutionally vague on its face” simply

because its meaning contains undefined terms, such as “risk,”

“substantial,” “protracted,” and “impairment.” People v. Summitt,

 (Colo. App. 2004), rev’d on other grounds, 

 (Colo. 2006). Further, Duncan does not cite to any

Colorado authority, and we are aware of none, holding that the

word “protracted” is unconstitutionally vague. Thus, the trial court

could not reasonably have been expected to intervene sua sponte

and find the statute unconstitutionally vague. See People v.

Ujaama, 

; see also Scott v. People, 

 (“[A]n error will not ordinarily be deemed ‘obvious’ when either

this court or a division of the court of appeals has previously

rejected an argument being advanced by a subsequent party who is

asserting plain error.”); Rocky Mountain Gun Owners v. Polis, 

 (“Statutes are entitled to a presumption of

constitutionality, rooted in the doctrine of separation of powers,

through which ‘the judiciary respects the roles of the legislature and

the executive in the enactment of laws.’”) (quoting City of




                                  15
  Greenwood Vill. v. Petitioners for Proposed City of Centennial, 

 (Colo. 2000)).

                     IV.    Prosecutorial Misconduct

¶ 29   Duncan argues that, during closing arguments, the prosecutor

  (1) mischaracterized the definition of reasonable doubt and shifted

  the burden of proof to Duncan; (2) misled the jury as to the

  meaning of “substantial risk”; and (3) misled the jury as to the

  meaning of “protracted.” We are not persuaded.

                    A.      Applicable Legal Standards

¶ 30   We review for an abuse of discretion a trial court’s

  determination of whether a prosecutor’s statements constitute

  improper prosecutorial argument. People v. Strock, 

 (Colo. App. 2010). Our review of alleged prosecutorial

  misconduct has two steps. Wend v. People, 

  (Colo. 2010). First, we “must determine whether the prosecutor’s

  questionable conduct was improper based on the totality of the

  circumstances and, second, whether such actions warrant reversal

  according to the proper standard of review.” 

¶ 31   The prosecutor must “scrupulously avoid comments that

  could mislead or prejudice the jury.” Domingo-Gomez v. People, 125


                                     

 (Colo. 2005). “We must evaluate claims of

  improper argument in the context of the argument as a whole and

  in light of the evidence before the jury.” People v. McMinn, 

, ¶ 60. “In doing so, we recognize that prosecutors have

  wide latitude in the language and style they choose to employ, as

  well as in replying to an argument by opposing counsel.” 

 The

  prosecutor may engage in oratorical embellishment and

  metaphorical nuance. People v. Vialpando, 

, ¶ 23. But

  while the prosecutor can “comment on the evidence admitted at

  trial and the reasonable inferences that can be drawn therefrom,”

  she cannot “misstate or misinterpret the law.” McMinn, ¶¶ 61-62.

¶ 32   It is improper for a prosecutor to shift the burden of proving

  innocence to a defendant. People v. Santana, 

  (Colo. 2011). Viewing the entire record, we assess if the

  prosecutor’s comments improperly shifted the burden of proof

  according to whether

            (1) the prosecutor specifically argued or
            intended to establish that the defendant
            carried the burden of proof; (2) the
            prosecutor’s actions constituted a fair
            response to the questioning and comments of
            defense counsel; and (3) the jury is informed
            by counsel and the court about the


                                   17
            defendant’s presumption of innocence and the
            prosecution’s burden of proof.

  

 (footnotes omitted). Our assessment recognizes that

  the prosecutor can “comment on the lack of evidence confirming [a]

  defendant’s theory of the case.” People v. Medina, 

, 

 (1976).

¶ 33   We review unpreserved claims of prosecutorial misconduct for

  plain error. Hagos, ¶ 14. Only prosecutorial misconduct that is

  “flagrantly, glaringly, or tremendously improper” warrants reversal

  under the plain error test. 

 (quoting People v. Avila, 

 (Colo. App. 1997)).

¶ 34   We review preserved claims of prosecutorial misconduct for

  harmless error, which requires reversal if there is a reasonable

  probability that any error by the trial court contributed to the

  defendant’s conviction. People v. Monroe, 

.

                              B.   Analysis

                         1.   Reasonable Doubt

¶ 35   During closing, the prosecutor argued as follows:

        “[The jury instruction] tells you what reasonable doubt is,

          what it is not. It’s not vague and it’s not speculative or an



                                    18
         imaginary doubt. It’s not the what ifs, because what you’re

         to consider are the what is, the evidence that you heard

         over the last two days.”

        “So any other cause of that perforated eardrum, that’s a

         what if, and that’s not reasonable doubt because that’s

         speculation because there’s no evidence that anything other

         than the slap by Mr. Duncan caused that injury. That is

         the what if.”

        “Speculating that maybe, well, could have been someone

         else [who committed the assault]. That’s a what if. That is

         not reasonable doubt.”

¶ 36   Focusing on the prosecutor’s statements about “what ifs,”

  Duncan contends this line of argument (1) mischaracterized

  reasonable doubt in a way that lowered the prosecution’s burden of

  proof and (2) implied that Duncan had to present evidence to rebut

  the prosecution’s charges. We disagree.

¶ 37   Each of the prosecutor’s references to “what ifs” was

  immediately preceded by a reference to speculation. We agree with

  the People that, taken in context, the prosecutor used the term

  “what ifs” as another way of saying doubt that is “vague” or

                                    19
  “speculative,” which tracks the instructions given to the jury:

  reasonable doubt is “not a vague, speculative, or imaginary doubt,

  but such a doubt that would cause reasonable people to hesitate to

  act in matters of importance to themselves.” See COLJI-Crim. E:03

  (2021).5 Such statements therefore did not mislead the jury as to

  the concept of “reasonable doubt” or lower the prosecution’s burden

  of proof.

¶ 38   Likewise, the prosecutor’s statements about “what ifs” did not

  improperly shift the burden of proof to Duncan. The prosecutor did

  not suggest that Duncan carried the burden of proof, and both the

  court and the prosecutor informed the jury about the presumption

  of innocence and the prosecution’s burden. See Santana, 

. In her closing argument, the prosecutor merely

  highlighted the lack of evidence supporting Duncan’s theory that

  someone or something else caused Phalen’s perforated eardrum.


  5 The instruction defining reasonable doubt given to the jury at trial

  used language matching the 2021 pattern instructions. Duncan
  does not challenge this instruction on appeal. The supreme court
  has since updated this language in the pattern instructions, but
  “this update in no way casts aspersions on the validity of the prior
  version of this instruction, which the U.S. Supreme Court has
  explicitly approved.” COLJI-Crim. E:03 cmt. 1 (2022) (citing Victor
  v. Nebraska, 

 (1994)).

                                    20
  See People v. Walker, 

, ¶ 41 (“Commenting on the lack

  of evidence supporting a defense theory does not shift the burden of

  proof.”).

¶ 39    For these reasons, the prosecutor’s comments about “what ifs”

  were not improper.

                         2.    Substantial Risk

¶ 40    The prosecutor also made statements during closing argument

  highlighting the evidence that Phalen did, in fact, lose her hearing

  for five months. Duncan argues that these remarks asked the jury

  to misapply the law because they urged the jury to focus on the

  actual result of his conduct rather than on whether his conduct

  created a “substantial risk” of that result. Thus, he contends that

  the jury should only have considered “the conduct (the strike), the

  injury (the hole in the eardrum), and the risk associated with that

  injury (Dr. Mann’s testimony that the majority of injuries heal

  within one to two months without any further surgery or

  treatment).” He further argues that the jury may have thought that

  five months was protracted but two months — the upper end of the

  “typical” healing window described by Dr. Mann — was not.




                                    21
¶ 41   Duncan’s argument relies on interpreting “serious bodily

  injury” to exclude injuries that do not carry a substantial risk of

  protracted loss or impairment even if the injury does in fact cause

  such a loss or impairment. Assuming, without deciding, that

  Duncan’s interpretation is accurate, we perceive no error.

¶ 42   First and foremost, the prosecutor’s comments were well

  within the realm of reasonable inferences that may fairly be drawn

  from the evidence. Strock, 

. As we described

  earlier, the jury heard that a ruptured eardrum typically causes

  hearing loss. And it is fair to use evidence of the length of Phalen’s

  actual hearing loss, in combination with Dr. Mann’s testimony that

  a perforated eardrum typically causes hearing loss, to infer that a

  perforated eardrum is an injury that carries a risk of “protracted”

  hearing loss. See id.; see also Vialpando, ¶ 23 (“[A] prosecutor may

  highlight facts in evidence . . . .”).

¶ 43   Furthermore, Duncan takes out of context most of the

  statements he identifies. In many instances, the prosecutor

  discussed not only the period of hearing loss Phalen actually

  suffered but also Dr. Mann’s testimony about the typical healing

  window of one to two months:


                                       22
 “[Phalen’s] saying on the 911 [recording], I can’t hear

  myself . . . . And then you have confirmation that two

  weeks later she still can’t hear and there’s still a

  documented injury. That’s an extended period of time. And

  then beyond that you have Dr. Mann telling you yes, while

  they can heal on their own, it can take one to two months

  or longer. Sometimes they need surgery. And thankfully,

  Ms. Phalen didn’t need surgery, but that doesn’t mean it

  wasn’t serious bodily injury. She was without hearing for

  five months in one of her ears.”

 “You have Dr. Mann’s testimony that it takes one to two

  months, sometimes longer. And then beyond a reasonable

  doubt is you have her sworn testimony that it was five

  months.”

 “And you have definitive proof not that there was a risk but

  that there was actual loss and impairment of the use of her

  ear. You know it was at least ten days later, and that it

  would take a month or two. That is an extended period of

  time to go without hearing in one of your ears.”




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¶ 44   The prosecutor also discussed Phalen’s actual hearing loss to

  dispute an argument raised by defense counsel:

            Defense said something interesting in their
            closing argument. They said he didn’t hit her
            hard enough to cause serious bodily injury.
            But what you have is the testimony of Dr.
            Mann who shows that she did, in fact, have it
            because the definition says substantial risk,
            and what Dr. Mann’s testimony and testing
            shows you is that she actually had injuries.

  And the prosecutor concluded that section of the argument by

  explaining the following:

            And just because she didn’t need surgery that
            day, that she didn’t need to be seen that day
            doesn’t change that she still didn’t have
            hearing for ten days, a month to two
            months . . . . The defense isn’t contesting that
            Dr. Mann found an injury, that the injury
            takes one to two months at least to heal, that
            the injury was present even at all. That
            satisfies the definition of serious bodily injury.

  (Emphasis added.)

¶ 45   The prosecutor thus repeatedly highlighted Dr. Mann’s

  testimony on the typical healing period, even explicitly saying that

  one to two months “satisfies the definition of serious bodily injury.”

  To the extent there may have been one or two isolated instances

  where the prosecutor referred only to the five-month hearing loss



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  when discussing the “protracted” nature of the injury, we do not

  perceive such comments to be problematic when considering the

  context of the closing as a whole.

                     3.    Definition of “Protracted”

¶ 46   Duncan contends that the prosecutor misled the jurors by

  informing them that they could find serious bodily injury based on

  a risk of less-than-permanent impairment. Because we have

  concluded that “protracted” does not necessarily mean

  “permanent,” we reject this argument.

¶ 47   Finally, Duncan contends that the prosecutor misled the jury

  by arguing that it could not consider what the legislature meant by

  the word “protracted.” Duncan bases this argument on a brief

  statement from the middle of the prosecutor’s rebuttal closing

  argument: “And that is why you can find him guilty because

  protracted or extended period of time, the legislature didn’t provide

  a definition and what they intended or not, you have no evidence

  before you, so that goes into that what if. That’s speculation. That

  is not reasonable doubt.” Defense counsel did not object.

¶ 48   Reading the rebuttal closing as a whole, it is apparent that the

  prosecutor was responding to several arguments made by defense


                                       25
  counsel during her closing: (1) the typical one-to-two-month healing

  period did not correspond with a “protracted” loss under the

  statutory definition of serious bodily injury; (2) the injury itself did

  not pose an “imminent threat to life or limb or permanent damage

  to an organ”; (3) the physical evidence showed that Duncan did not

  cause Phalen’s injury; and (4) Phalen’s testimony that Duncan

  caused her injury was not credible. Considered in context, we do

  not read the disputed statements as implying that the jury needed

  evidence of the legislature’s intent. Rather, the prosecutor was

  referring to the lack of evidence that the cause of the injury was

  anything other than Duncan hitting Phalen. We also note that,

  elsewhere, the prosecutor encouraged the jury to use its “common

  sense” and explained that “protracted” means “an extended period

  of time” — the same definition used by defense counsel in her

  closing argument.

¶ 49   While perhaps inartful, we cannot conclude that the single

  passing remark about legislative intent encouraged the jury to

  misapply the law. See McMinn, ¶ 60 (“[B]ecause arguments

  delivered in the heat of trial are not always perfectly scripted,

  reviewing courts accord prosecutors the benefit of the doubt when


                                     26
  their remarks are ambiguous or simply inartful.”). And even if the

  remark was misconduct, it was not “flagrantly, glaringly, or

  tremendously improper” and therefore is not plain error.6 Domingo-

  Gomez, 125 P.3d at 1053 (citation omitted).

                             V.    Disposition

¶ 50   The judgment is affirmed.

       JUDGE NAVARRO and JUDGE GROVE concur.




  6 To the extent Duncan contends that the prosecutor’s statement

  also improperly shifted the burden by implying Duncan had to
  prove legislative intent, we decline to address this particular claim,
  as Duncan raised it for the first time in his reply brief. People v.
  Boles, 

, 61 n.4 (Colo. App. 2011).

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