COLORADO COURT OF APPEALS                                       2017COA77


Court of Appeals No. 14CA1175
Arapahoe County District Court No. 12CR2748
Honorable Gerald J. Rafferty, Judge
Honorable Christopher C. Cross, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rogelia Perez-Rodriguez,

Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                    Division V
                           Opinion by JUDGE BOORAS
                           Román and Fox, JJ., concur

                            Announced June 1, 2017


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Rogelia Perez-Rodriguez, defendant, appeals the judgment of

 conviction and sentence entered on jury verdicts finding him guilty

 on two counts each of aggravated incest, sexual assault on a child

 by one in a position of trust as a pattern of conduct, and sexual

 assault with the actor ten years older than the victim. We affirm.

                          I.    Background

¶2    Defendant started dating A.S. and soon after moved in with

 her. A.S. had several children from a previous marriage and had

 three children with defendant during their relationship. J.H-S. was

 one of A.S.’s children from a previous marriage and was around

 eleven years old when defendant started dating A.S.

¶3    Although defendant and A.S. did not have a wedding ceremony

 and were never formally married, they publicly referred to each

 other as husband and wife. And while defendant never formally

 adopted J.H-S., they publicly referred to each other as father and

 daughter.

¶4    In the summer of 2012, when J.H-S. was fifteen years old,

 defendant forced her to have sexual intercourse with him on two

 separate occasions, one to two weeks apart. Defendant

 impregnated J.H-S., and she delivered the baby approximately nine


                                   1
 months after the incidents. DNA testing confirmed that defendant

 was the baby’s biological father.

¶5    After discovering she was pregnant, J.H-S. told her mother

 what had happened, and police started an investigation. During

 the investigation, a detective — through an interpreter —

 questioned defendant. Defendant initially denied but then admitted

 to having had sexual intercourse with J.H-S.

¶6    A jury convicted defendant on all counts, and the trial court

 sentenced him to a life sentence with parole eligibility after twelve

 years.

                              II.    Issues

¶7    Defendant first contends that the aggravated incest statute is

 unconstitutionally vague as applied. He next contends that the

 aggravated incest instruction incorrectly instructed the jury that he

 did not need to know that J.H-S. was his stepdaughter. Defendant

 then alleges that the prosecution misstated the law on common law

 marriage during rebuttal closing argument, thereby committing

 reversible misconduct. Finally, defendant asserts that his

 confession was involuntary because the interrogating officers made

 implied promises of leniency and compassion, and therefore the


                                     2
 court erred in admitting the taped confession into evidence. We

 examine each contention in turn.

                    III.   Aggravated Incest Statute

¶8    Defendant contends that the aggravated incest statute is

 unconstitutionally vague as applied to stepchildren of common law

 marriages because common law marriage itself turns on a

 multitude of factors and is not sufficiently defined by statute.

 Defendant asserts, therefore, that when a couple is not formally

 married, the statute fails to provide a standard by which the

 accused may know whether the victim is his or her stepchild. We

 do not agree.

             A.    Standard of Review and Applicable Law

¶9    We review de novo as-applied constitutional challenges to

 statutes. People v. Trujillo, 2015 COA 22, ¶ 15. A statute may be

 unconstitutional on its face or as applied. People v. Stotz, 2016

 COA 16, ¶ 27. A statute is unconstitutional as applied if it does

 not, with sufficient clarity, prohibit the conduct against which it is

 enforced. Id.; see also Johnson v. United States, 576 U.S. ___, ___,

 135 S. Ct. 2551, 2556 (2015). A defendant has the burden of




                                    3
  showing beyond a reasonable doubt that the statute is

  unconstitutional as applied to him or her. Trujillo, ¶ 15.

¶ 10   When determining whether a statute is vague, we apply

  common principles of statutory interpretation. Stotz, ¶ 28. First,

  we look to the language of the statute itself and interpret statutory

  terms in accordance with their commonly accepted meanings. Id.

  If the plain language is unclear or ambiguous, we may look beyond

  the words of the statute to legislative history or rules of statutory

  construction. Id. Otherwise, we apply the statute as written. Id.

¶ 11   Defendant preserved this argument by asserting it at trial.

  The trial court ruled that a common law marriage is the same as

  any other type of marriage for purposes of the incest statute — the

  only difference being how a common law marriage is proved.

                               B.   Analysis

¶ 12   Colorado’s aggravated incest statute says:

             (1) A person commits aggravated incest when
             he or she knowingly:

             (a) Marries his or her natural child or inflicts
             sexual penetration or sexual intrusion on or
             subjects to sexual contact, as defined in
             section 18-3-401[, C.R.S. 2016], his or her
             natural child, stepchild, or child by adoption,
             but this paragraph (a) shall not apply when the


                                     4
            person is legally married to the stepchild or
            child by adoption. For the purpose of this
            paragraph (a) only, “child” means a person
            under twenty-one years of age.

  § 18-6-302, C.R.S. 2016 (emphasis added).

¶ 13   The term “stepchild” is not defined by the statute, but is

  typically defined as a child of one’s wife or husband by a former

  marriage or relationship. See Webster’s Third New International

  Dictionary 2237 (2002). Whether a person is a stepchild depends,

  therefore, on whether or not the alleged stepparent and the child’s

  biological parent are husband and wife.

¶ 14   “A common law marriage is established by the mutual consent

  or agreement of the parties to be husband and wife, followed by a

  mutual and open assumption of a marital relationship.” People v.

  Lucero, 747 P.2d 660, 663 (Colo. 1987). The Lucero court

  recognized that

            in many cases express agreements will not
            exist. The parties’ understanding may be only
            tacitly expressed, and the difficulty of proof is
            readily apparent. We have recognized that ‘the
            agreement need not have been in words,’ and
            the issue then becomes what sort of evidence
            is sufficient to prove the agreement. We have
            stated that if the agreement is denied or
            cannot be shown, its existence may be inferred
            from evidence of cohabitation and general


                                    5
            repute. In such cases, the conduct of the
            parties provides the truly reliable evidence of
            the nature of their understanding or
            agreement.

  Id. at 664 (footnote and citations omitted).

¶ 15   Defendant contends that, because common law marriage relies

  on evidence of cohabitation and general repute, the aggravated

  incest statute is too vague to provide an accused with a standard by

  which he or she could know that a person is his or her stepchild or

  any standard by which law enforcement can differentiate illegal

  conduct from legal conduct.

¶ 16   But a lack of clearly defined terms is not fatal to a statute’s

  constitutionality. See Posters ‘N’ Things, Ltd. v. United States, 511

  U.S. 513, 525-26 (1994) (concluding that statute defining drug

  paraphernalia by using specified, objective criteria for assessing

  whether an item qualifies and containing a scienter requirement

  was not unconstitutionally vague); Tiplick v. State, 43 N.E.3d 1259

  (Ind. 2015) (holding drug statute constitutional because, despite

  having multiple undefined terms, the statute contained a scienter

  requirement and numerous factors to help determine the accused’s

  intent); State v. Munson, 714 S.W.2d 515, 520 (Mo. 1986)



                                     6
  (upholding drug paraphernalia statute even though it relied on

  nonexclusive enumerated factors).

¶ 17   Similarly, a statute is not rendered vague when the existence

  of a statutory element is determined by balancing factors that are

  not included in the statute. See State v. Campbell, 756 N.W.2d 263,

  270-72 (Minn. Ct. App. 2008) (upholding breach of fiduciary

  obligation where statute was admittedly broad and a factual

  determination based on numerous factors was necessary, noting

  that “[a]lthough the determination requires a judgment call, it is not

  so inherently elusive that it is not reasonably ascertainable or that

  it cannot be established beyond a reasonable doubt”). Common law

  marriage may be shown through agreement or consent in

  combination with a variety of factors, but the two most clearly

  recognized are cohabitation and “a general understanding or

  reputation among persons in the community in which the couple

  lives that the parties hold themselves out as husband and wife.”

  Lucero, 747 P.2d at 665. Furthermore,

            Specific behavior that may be considered
            includes maintenance of joint banking and
            credit accounts; purchase and joint ownership
            of property; the use of the man’s surname by
            the woman; the use of the man’s surname by


                                    7
            children born to the parties; and the filing of
            joint tax returns. However, there is no single
            form that any such evidence must take.
            Rather, any form of evidence that openly
            manifests the intention of the parties that their
            relationship is that of husband and wife will
            provide the requisite proof from which the
            existence of their mutual understanding can be
            inferred.

  Id. (emphasis added) (citation omitted).

¶ 18   There is, therefore, sufficient guidance through statute, case

  law, and the plain meaning of “stepchild” so that a person in a

  common law marriage has sufficient notice as to the prohibited

  conduct of aggravated incest.

¶ 19   Defendant cites State v. Johnson, 695 N.W.2d 165, 178-80

  (Neb. 2005) (Gerrard, J., dissenting),1 as an example of when an

  aggravated incest statute was unconstitutionally vague. Johnson is

  not persuasive because — in addition to being a dissenting opinion

  — in that case, the term “minor” was defined differently throughout

  Nebraska statutes, and there was no clear or definite way for the

  defendant to determine what age would be applied to the aggravated


  1Although the majority of justices agreed with the dissent,
  Nebraska rules required more than a majority agreement to declare
  a statute unconstitutionally vague. State v. Johnson, 695 N.W.2d
  165, 173 (Neb. 2005).

                                    8
  incest statute. Id. Colorado cases set forth a test to be routinely

  applied in determining whether a common law marriage exists.

  This eliminates the danger of arbitrary application of inconsistent

  definitions as was the case in Johnson.

¶ 20   We therefore conclude that Colorado’s aggravated incest

  statute is not unconstitutionally vague as applied to those in a

  common law marriage.

                           IV.   Jury Instruction

¶ 21   Defendant next contends that the trial court’s elemental

  instruction on aggravated incest failed to properly instruct the jury

  on the scope of the mens rea required to sustain a conviction. We

  perceive no error.

               A.      Standard of Review and Preservation

¶ 22   Defendant concedes that he did not raise any objection to the

  elemental jury instruction, and he urges that it should be reviewed

  for plain error. However, the People contend that because defense

  counsel stated, “No, sir” when the trial court asked if there were any

  further objections to Instructions 1 through 24, waiver or invited

  error should entirely preclude review.




                                     9
¶ 23   A waiver is “an intentional relinquishment of a known right or

  privilege.” Moore v. People, 2014 CO 8, ¶ 9 (quoting People v. Curtis,

  681 P.2d 504, 514 (Colo. 1984)). A closely related concept, invited

  error, is based on the principle that “a party may not complain on

  appeal of an error that he has invited or injected into the case; he

  must abide by the consequences of his acts.” People v. Foster, 2013

  COA 85, ¶ 25 (quoting Horton v. Suthers, 43 P.3d 611, 618 (Colo.

  2002)).

¶ 24   Generally, defense counsel’s failure to make a

  contemporaneous objection results in review under the plain error

  standard. See People v. Miller, 113 P.3d 743, 749 (Colo. 2005).

  Although sometimes referred to as a “waiver,” the complete failure

  to object is more precisely a “forfeiture” of rights. See United States

  v. Olano, 507 U.S. 725, 733-34 (1993) (“Waiver is different from

  forfeiture. Whereas forfeiture is the failure to make the timely

  assertion of a right, waiver is the ‘intentional relinquishment or

  abandonment of a known right.’” (quoting Johnson v. Zerbst, 304

  U.S. 458, 464 (1938))).

¶ 25   In contrast, invited error typically requires more than the

  simple failure to object. People v. Gross, 2012 CO 60M, ¶ 9 (where


                                    10
  error results from counsel’s oversight, appeal is not precluded by

  the invited error doctrine); People v. Garcia, 1 P.3d 214, 219 (Colo.

  App. 1999) (merely failing to object to an instruction does not

  constitute “invited error”), aff’d, 28 P.3d 340 (Colo. 2001). Invited

  error is sometimes referred to as a strategic error. But this does not

  mean that the “strategy” must be competent or well planned. It

  simply means that the action that results in invited error must be

  deliberate rather than inadvertent. See Gross, ¶ 9. Thus, whether

  analyzed as waiver or invited error, there must be intentional or

  deliberate action in order to preclude plain error review.

¶ 26   In some cases, whether an attorney’s action is deliberate

  rather than inadvertent may be adequately reflected by the record.

  In other cases, the record may not be clear. See id. at ¶ 11 (invited

  error where defense counsel argued affirmatively for an instruction

  despite opposition by the prosecution). The question here then is

  whether the record reflects a deliberate act or an inadvertent act.

¶ 27   To determine whether the statement “no objection” or even

  silence should be characterized as either deliberate or inadvertent,

  it is necessary to consider the objection or silence in the context of

  its circumstances. See United States v. Anderson, 604 F.3d 997,


                                    11
1001 (7th Cir. 2010) (examining a party’s state of mind to

distinguish forfeiture from waiver). For example, in Stackhouse v.

People, 2015 CO 48, the supreme court viewed counsel’s silence

after the trial court explained its reasoning for closing the

courtroom to the public as a waiver. Id. at ¶ 3. Similarly, in other

cases relied upon by defendant the circumstances established more

than just a response to a general inquiry:

         People v. Riley, 2016 COA 76, ¶ 15 (the defendant’s

           request for a lesser nonincluded instruction at trial

           invited the potential error that he would be convicted of

           that offense on insufficient evidence).

         People v. Rediger, 2015 COA 26, ¶ 53 (finding waiver

           where at conclusion of jury instruction conference,

           counsel stated that “[d]efense is satisfied [with the

           instructions]”) (cert. granted Feb. 16, 2016).2

         Foster, ¶¶ 29, 30 (finding invited error where defense

           counsel agreed with the prosecutor’s statement that


2Counsel’s statement is similar to the statement “I am content,”
which was construed as an explicit withdrawal of counsel’s
previously proffered instruction in United States v. Hansen, 434
F.3d 92, 101 (1st Cir. 2006).

                                   12
              defendant’s prior conviction acted as a sentence

              enhancer that should be decided by the court, and then

              expressly asked the court, rather than the jury, to make

              that finding).

             People v. Gregor, 26 P.3d 530, 533 (Colo. App. 2000) (the

              defendant’s affirmative proposal with respect to one

              instruction and acquiescence in two others invited error).

¶ 28   Assuming that the statement “no objection” was the response

  to an inquiry about specific language or a specific instruction, the

  circumstances might support deliberate conduct. But here, the

  court’s inquiry grouped all twenty-four instructions. It is not clear

  whether defense counsel’s blanket statement indicating “no

  objection” reflected deliberate agreement with all the instructions or

  was an inadvertent failure to object to the error defendant now

  claims. Thus, under the circumstances of this case, the record

  does not establish deliberate conduct sufficient to support invited

  error or waiver. Accordingly we apply the plain error standard of

  review.




                                     13
                              B.   Analysis

¶ 29   The trial court gave the following instruction regarding

  aggravated incest:

            The elements of the crime of Aggravated Incest
            as applied to Counts 1 & 2 are:

            1.    That Mr. Perez-Rodriguez,
            2.    in the State of Colorado, at or about the date and
                  place charged,
            3.    knowingly,
            4.    subjected [J.H-S.] to sexual penetration or sexual
                  intrusion, and
            5.    [J.H-S.] was his stepchild, and
            6.    [J.H-S.] was under twenty one years of age.

¶ 30   Defendant contends that because the court included “and” at

  the end of elements four and five, the “knowingly” mens rea applied

  only to his act of subjecting J.H-S. to sexual penetration or sexual

  intrusion, and not to whether he knew she was his stepchild.

¶ 31   Regardless of whether the instruction was erroneous, the

  evidence that defendant knew J.H-S. was his stepdaughter was

  overwhelming.

           Defendant referred to J.H-S. as his stepdaughter during

            his interview with police, even going so far as to

            distinguish the fact that he was not her biological father,

            but her stepfather.


                                   14
           Defendant referred to A.S., J.H-S.’s mother, as his wife

             numerous times throughout the interview.

           A.S. referred to defendant as her husband, and she

             testified that defendant introduced all of her children,

             including J.H-S., as his own.

           J.H-S. also testified that she and defendant referred to

             each other as father and daughter.

¶ 32   Here, the jury found that a marital relationship legally existed,

  and there was no evidence that defendant did not understand a

  parent-stepchild relationship existed between him and J.H-S.

  Failure to properly instruct the jury is not plain error if the subject

  of the error is not contested or if evidence of the defendant’s guilt is

  overwhelming. Auman v. People, 109 P.3d 647, 665 (Colo. 2005).

¶ 33   We conclude, therefore, that even if the trial court erred in

  giving the elemental instruction, such error was not plain error

  because the evidence overwhelmingly showed that defendant knew

  J.H-S. was his stepdaughter at the time of the incidents.




                                     15
                      V.   Prosecutorial Misconduct

¶ 34   Defendant asserts that the prosecutor committed reversible

  misconduct in rebuttal closing by misstating the law on common

  law marriage. We do not agree.

                A.   Standard of Review and Preservation

¶ 35   Because defendant did not object to the prosecutor’s

  statements, we review only for plain error. Domingo-Gomez v.

  People, 125 P.3d 1043, 1053 (Colo. 2005).

¶ 36   “Prosecutorial misconduct during closing arguments rarely

  constitutes plain error that requires reversal.” People v. Nardine,

  2016 COA 85, ¶ 63. “To warrant reversal, the misconduct must be

  obvious and substantial and so undermine the fundamental

  fairness of the trial as to cast serious doubt on the reliability of the

  judgment of conviction.” Id. “Only prosecutorial misconduct which

  is ‘flagrantly, glaringly, or tremendously improper’ warrants

  reversal.” Id. (quoting Domingo-Gomez, 125 P.3d at 1053).

¶ 37   In reviewing a claim of prosecutorial misconduct we engage in

  a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

  2010). First we determine whether the prosecutor’s conduct was

  improper based on the totality of the circumstances, and second,


                                     16
  we determine whether such actions warrant reversal under the

  applicable standard, in this case, plain error. Id.

                              B.   Analysis

¶ 38   Defendant’s primary defense at trial was that no common law

  marriage existed between him and J.H-S.’s mother. The court gave

  the following instruction regarding common law marriage:

            In order for J.H.-S. to be [defendant’s]
            step-daughter, you must find beyond a
            reasonable doubt that a common-law marriage
            existed between A.S. and [defendant]. A
            common-law marriage is established by the
            mutual consent or agreement of the parties to
            be husband and wife, followed by a mutual
            and open assumption and acknowledgement of
            a marital relationship. Behavior that may be
            considered by you in determining whether
            there was a common-law marriage, includes
            but is not limited to: Cohabitation, which is
            holding forth to the world by the manner of
            daily life, by conduct, demeanor, and habits,
            that the man and woman have agreed to take
            each other in marriage and to stand in the
            mutual relation of husband and wife;
            reputation, which means the understanding
            among the neighbors and acquaintances, with
            whom the parties associate in their daily life,
            that they are living together as husband and
            wife; maintenance of joint banking and credit
            accounts; purchase and joint ownership of
            property; the use of the man’s surname by the
            woman; the use of the man’s surname by
            children born to the man and woman; and the
            filing of joint tax returns.


                                    17
¶ 39   During closing argument, defense counsel discussed several of

  the factors listed in the instruction, arguing that there was no

  common law marriage because there was no joint banking account,

  there was no joint property, A.S. did not use defendant’s surname,

  and there was no evidence of joint tax returns.

¶ 40   During rebuttal, the prosecutor stated, regarding the common

  law marriage instruction, as follows:

            So what do we have here? And these
            elements, as it says, “including but not limited
            to,” that means you can find one and find
            common law marriage, so long as that one is
            proven beyond a reasonable doubt. You can
            have more than one, and we do have more
            than one. You have cohabitation. You have
            them both saying that they are married; you
            have her saying she was his husband — he
            was her husband, and him saying she was his
            wife.

¶ 41   Defendant contends on appeal that the prosecutor’s statement

  misstated the law by implying that one factor alone was sufficient to

  prove common law marriage, when the law requires evidence of

  both cohabitation and reputation. Lucero, 747 P.2d at 664 (citing

  Graham v. Graham, 130 Colo. 225, 227, 274 P.2d 605, 606 (1954)).

¶ 42   Although the prosecutor’s simple reference to “cohabitation,”

  viewed in isolation, may have misstated the law, when viewed in


                                    18
  context as rebuttal to defendant’s arguments, we perceive no plain

  error. The court’s instruction defined cohabitation as including an

  agreement to be married, and it correctly stated the requirements of

  common law marriage. The rebuttal argument merely emphasized

  behavior that may be used to show mutual consent or agreement to

  be husband and wife and a mutual and open assumption and

  acknowledgment of a marital relationship.

¶ 43   Defendant does not contend that the instruction itself

  misstated the law. When the prosecutor’s statement is viewed in

  relation to the entirety of closing arguments and the instructions

  given, we conclude that even if error occurred, it was not obvious

  and substantial and it did not so undermine the fundamental

  fairness of the trial as to cast serious doubt on the reliability of the

  judgment of conviction.

                              VI.   Confession

¶ 44   Finally, defendant asserts that his confession was involuntary

  and that its admission violated his state and federal due process

  rights. We do not agree.




                                     19
                          A.   Legal Principles

¶ 45   Defendant preserved his argument by filing a motion to

  suppress the confession. The trial court held an evidentiary

  hearing and denied the motion.

¶ 46   “A trial court’s ruling on a motion to suppress presents a

  mixed question of fact and law.” People v. Cisneros, 2014 COA 49,

  ¶ 56. If the statements sought to be suppressed are recorded, we

  independently review them to determine whether they should have

  been suppressed. Id. “Because neither party contests the facts

  that controlled the trial court’s determination whether to admit the

  videotaped confession, we review its admission de novo.” People v.

  Wickham, 53 P.3d 691, 694 (Colo. App. 2001).

¶ 47   A defendant’s statement must be voluntary in order to be

  admissible. Jackson v. Denno, 378 U.S. 368, 376-77 (1964);

  Cisneros, ¶ 80. Voluntariness is determined by the totality of the

  circumstances. People v. York, 189 Colo. 16, 20, 537 P.2d 294, 296

  (1975); Cisneros, ¶ 81. Threats and promises of leniency may be

  considered in determining whether a statement was voluntary, but

  they are not conclusive. Wickham, 53 P.3d at 695. “For such

  threats and promises to render a confession involuntary, they must


                                   20
  have caused the defendant to confess, for example, where police

  have promised leniency in exchange for a confession or have

  threatened harmful consequences unless the defendant confesses.”

  Id.

¶ 48    Other factors to consider include the following:

             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 defendant had the opportunity to
             confer with counsel or anyone else prior to the
             interrogation; 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.

  Id. (quoting People v. Gennings, 808 P.2d 839, 844 (Colo. 1991)).

                       B.   Additional Background

¶ 49    When defendant was taken into custody he was questioned for

  approximately forty minutes by a detective and a translating officer.



                                    21
  The detective advised defendant of his rights pursuant to Miranda v.

  Arizona, 384 U.S. 436 (1966), in English and Spanish, and

  defendant indicated that he understood his rights and signed a

  waiver form. Defendant initially denied having had any sort of

  sexual intercourse with J.H-S., but after approximately fifteen more

  minutes, he confessed to it.

¶ 50   During the interrogation, the detective told defendant several

  times that he did not believe defendant. The detective also told

  defendant

              people are going to watch this interview, to
              include like judges and district attorneys, and
              they are going to have to make a decision
              based on whether you are being truthful or
              not. If you’re truthful sometimes these folks
              have some sort of level of compassion. But
              when people lie it’s very bad for you.

  The detective made similar remarks several times during the

  interview before defendant admitted to the intercourse.

                               C.   Analysis

¶ 51   During the interrogation, the detective never made a specific

  threat or promise.3 At times he suggested that judges or



  3We may conduct an independent review of the interrogation video.
  See People v. Martin, 222 P.3d 331, 334 (Colo. 2010).

                                     22
  prosecutors may be more lenient on a defendant who they perceive

  as being honest and who “took responsibility” for his actions. These

  statements, however, do not promise any sort of leniency or

  guarantee any special treatment. These facts are distinguishable

  from those in cases like People v. Quintana, 198 Colo. 461, 601 P.2d

  350 (1979), in which a sheriff promised the defendant that

            if the defendant cooperated the sheriff would
            do what he could to see that the defendant was
            not unjustly accused of offenses he did not
            personally commit, although the final decision
            would be with the District Attorney and the
            court; if the defendant would talk with the
            sheriff and the undersheriff he might get
            probation since he had a clean record, and he
            might be released from custody that day; if he
            talked, the sheriff would talk to the
            defendant’s employer, the manager of the
            Forbes Trinchera Ranch, about re-hiring him;
            and, if the defendant waited to talk until
            Monday, November 27th, he would have to
            “face the music” with the rest of the
            defendants.

  Id. at 463, 601 P.2d at 351 (footnotes omitted).

¶ 52   Here, the alleged promises were merely conjectures that

  prosecutors or judges may show leniency, and that the detective

  was giving defendant an opportunity to take responsibility for his

  actions. See Gimmy v. People, 645 P.2d 262, 268-69 (Colo. 1982)



                                   23
  (upholding trial court’s finding that confession was voluntary where

  officer told defendant that he would recommend revoking

  defendant’s sentence but ultimately the district attorney would

  decide the consequences of defendant’s confession); People v. Joyce,

  878 P.2d 48, 49-50 (Colo. App. 1994) (admission was voluntary

  where interrogating officer “indicated that the defendant’s level of

  cooperation would be reported to the district attorney’s office,

  but . . . he made no threats or promises to the defendant”). As for

  the detective’s statements that he did not believe defendant, we do

  not perceive such statements as threatening or coercive.

¶ 53   Although defendant was detained and could not leave, he had

  been advised of his Miranda rights and signed a waiver. As shown

  in the videotaped interview, the body language of the detective and

  defendant did not suggest any sort of hostility or threat, and the

  interrogation was only about forty minutes long. Although

  defendant is not highly educated, he did not seem overwhelmed by

  his circumstances, and his physical appearance and mannerisms

  did not suggest any sort of mistreatment or coercion rendering his

  statements involuntary.




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¶ 54   Based on the totality of the circumstances, we conclude that

  defendant’s admission was voluntary and that the trial court did

  not err in admitting it into evidence.

                             VII. Conclusion

¶ 55   For the forgoing reasons, we affirm the judgment of conviction.

       JUDGE ROMÁN and JUDGE FOX concur.




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