     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
                                                                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.
     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    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.


                                    1
 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.


                                    2
¶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


                                       3
  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


                                    4
  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 pre-

  prepared card issued by the Aurora Police Department, and Bryant

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


                                    5
  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).




                                     6
¶ 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


                                     7
  (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).




                                     8
¶ 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.



                                     9
¶ 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



                                    10
               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.”



                                        11
¶ 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.




                                    12
¶ 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.




                                    13
                      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,


                                     14
  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 self-

  induced 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


                                   15
  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.

                                     16
  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:




                                    17
           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

                                     18
  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




                                     19
  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.

                                    20
  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.




                                    21
¶ 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.




                                    22
                      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.


                                    23
¶ 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


                                      24
  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




                                     25
  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


                                    26
  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.



                                     27
             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



                                    28
  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,’


                                    29
  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


  3When 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).

                                     30
  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 drug-

  related 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 drug-

  related slang constituted expert testimony); Hyman, 168 A.3d at

  1208 (ruling that a detective’s testimony at trial defining drug-

  related 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


                                     31
  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


                                     32
  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


                                   33
  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,




                                   34
  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.


                                     35
              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.


                                    36
  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,


                                    37
  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


                                     38
  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.


                                    39
                       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).




                                   40
¶ 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.”



                                    41
  (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


                                      42
  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.




                                     43
