Peo v. Vernagallo - Felony Menacing Conviction Affirmed

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April 9, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Vernagallo

Colorado Court of Appeals

• Citations: None known
• Docket Number: 24CA0177

• Precedential Status: Non-Precedential

• Opinion

• Authorities (35)

• Cited By (0)

• Summaries (0)

• Similar Cases (56.6K)

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Combined Opinion

24CA0177 Peo v Vernagallo 04-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0177
Douglas County District Court No. 21CR736
Honorable Natalie Strickland, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Vincente Tyler Vernagallo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE SCHUTZ
Brown and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 9, 2026

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, 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. 2025.
¶1 Defendant, Vicente Tyler Vernagallo, appeals the trial court’s

judgment of conviction entered on a jury verdict finding him guilty

of two counts of felony menacing. We affirm the judgment.

I. Background and Procedural History

¶2 Prior to the events leading to his convictions, Vernagallo was

diagnosed with schizoaffective and bipolar disorders, for which he

had been repeatedly hospitalized. Family members were aware of

his condition.

A. Incident and Arrest

¶3 In August 2021, Vernagallo went to his mother’s house

carrying an Airsoft1 carbon dioxide (CO2) powered revolver and its

bullets, which contain plastic pellets. The revolver and bullets

closely resemble a real firearm and ammunition. Prior to arriving at

the home, Vernagallo removed the gun’s CO2 cartridge,2 which is

required to fire the gun. Vernagallo went to the garage — a space

1 Airsoft guns are non-lethal replica guns that are used for

entertainment, simulated combat training, or competitive target
practice.
2 In order for this Airsoft revolver to fire, the user must insert a CO2

cannister into the bottom of the gun. Once the cannister is
inserted, if the user pulls the trigger pressurized air expels and
discharges a bullet. If the CO2 cannister is not loaded, the gun
cannot discharge.

1
where family and friends often congregated — to visit his sister,

Britney Bond, and her boyfriend, Dillon Adame.

¶4 Bond testified that, while in the garage, Vernagallo slapped the

revolver onto the table, removed the bullets, and then reloaded one

bullet into one of the cylinder’s chambers. He then spun the

cylinder, held the gun to his head, smiled, said “hi,” and pulled the

trigger. Vernagallo then abruptly pointed the gun at Bond, holding

it about five inches from her forehead, and pulled the trigger. The

gun did not go off because unbeknownst to Bond and Adame,

Vernagallo had removed the CO2 cannister.

¶5 Adame, who witnessed Vernagallo pull the trigger, yelled at

Bond to run. Bond testified that she was worried about Vernagallo

shooting her in the back because she believed that the gun was

real. Bond and Adame ran into the driveway and fled down the

block. Vernagallo followed in his car and pointed the gun at them

through the car window. They ran to a neighbor’s house and asked

for help. The neighbor called the police.

¶6 Shortly after, the police pulled over Vernagallo’s car.

Approximately five armed officers were present. Vernagallo was

ordered to step out of his car. Sergeant Mark Terreault, an officer

2
who backed up the arresting officers, testified that the 911

dispatcher told them that Vernagallo was armed, so they asked him

to lift his shirt. Rather than lifting his shirt, Vernagallo took it off.

¶7 Officer Brandon Litwiller arrested Vernagallo, handcuffed him,

and placed him in the back of his patrol car. Litwiller then read

Vernagallo his Miranda3 rights and asked him if he wanted to talk

to them. He responded “sir, yes sir” and proceeded to talk to the

officers. Vernagallo stated that neither Bond nor Adame knew that

the Airsoft gun was not a lethal weapon. He acknowledged pointing

the gun at Bond and Adame as a joke and following them down the

street because he was “bored” and “thought it would be fun.” He

also admitted that he pointed the Airsoft gun at Bond and Adame

with the intent to scare them. Vernagallo apologized for

inconveniencing the officers and for the “joke” he played on Bond

and Adame.

¶8 Vernagallo was charged with two counts of felony burglary and

two counts of felony menacing. The prosecution later dismissed the

burglary charges.

3 Miranda v. Arizona, 384 U.S. 436, 444 (1966).

3
B. Competency Issues, Trial, and Conviction

¶9 In September 2021, defense counsel moved for a competency

evaluation. The court promptly ordered the Department of Human

Services to conduct an initial evaluation at the county jail. The

next month, the trial court found Vernagallo incompetent to stand

trial, but he remained in jail until a bed became available at the

Colorado Mental Health Hospital in Pueblo (CMHHIP).4 In January

2022, Vernagallo was admitted to CMHHIP. In February 2022,

Vernagallo was forcibly medicated. That same month, a

psychiatrist affiliated with CMHHIP opined that Vernagallo was

competent to proceed to trial. The court set a final arraignment for

September.

¶ 10 Before the arraignment, defense counsel moved for a second

competency evaluation. Two months later, after a second

evaluation and opinion from a psychiatrist at CMHHIP, the court

4 The parties use the initialism associated with the Colorado Mental

Health Institute at Pueblo (CHMIP) in the briefing, however in
September 2022, while this matter was being litigated, the Colorado
Department of Human Services announced that CHMIP was
renamed to the Colorado Mental Health Hospital in Pueblo
(CMHHIP), and we refer to it as such. Colo. Dept. of Human Servs.,
Introducing Colorado’s new office of Civil and Forensic Mental Health
(2022), https://perma.cc/4YH9-KK3Q.

4
found Vernagallo competent to stand trial. Vernagallo entered a not

guilty plea, and the trial was set for April 2023.

¶ 11 In March 2023, defense counsel filed a third competency

motion. In April, the trial court again found him incompetent to

stand trial and ordered him to be committed for inpatient

restoration. Vernagallo again resisted taking medications designed

to restore him to competency. After Vernagallo was forcibly

medicated pursuant to a court order, the court again found he was

competent and reset the trial for October.

¶ 12 After a two-day trial, the jury found Vernagallo guilty on both

menacing counts. The trial court sentenced him to three years of

supervised probation.5

II. Speedy Trial Claim

¶ 13 Vernagallo first contends that the trial court violated his

constitutional right to a speedy trial and requests that his

conviction be vacated. We conclude that the delay, while long —

5 In July 2024, the trial court revoked Vernagallo’s probation and

sentenced him to two years in the custody of the Department of
Corrections, with credit for 594 days of presentence confinement.
See Doulgas County Case No. 21CR736. The presentence
confinement credit included 552 days for the period between his
original arrest and his conviction on the menacing charges.

5
especially in light of the fact that Vernagallo was ultimately

convicted of two lower-level felonies and initially sentenced to three

years of probation — did not violate his constitutional right to a

speedy trial.

A. Standard of Review and Applicable Law

¶ 14 We review de novo whether a defendant’s speedy trial rights

have been violated.6 People v. Glaser, 250 P.3d 632, 636 (Colo. App.

2010).

¶ 15 The parties dispute whether Vernagallo’s claim was preserved.

Vernagallo asserted his speedy trial rights through “kites” sent to

the trial court requesting a fast and speedy trial by a jury of his

peers. The People argue that the trial court was not obligated to

consider Vernagallo’s pro se filings because he was represented by

counsel. See People v. Gess, 250 P.3d 734, 737 (Colo. App. 2010) (a

court may ignore a pro se motion filed by a defendant who is

represented by counsel). But this rule is relaxed when a

defendant’s lawyer has not asserted a speedy trial objection, and

6 Vernagallo asserts that the delays violated his constitutional right

to a speedy trial but does not argue that his statutory speedy trial
rights were violated. See § 18-1-405, C.R.S 2025. Therefore, we do
not consider that statute.

6
the defendant wishes to do so. See People v. Jefferson, 981 P.2d

613, 614 (Colo. App. 1998) (considering the merits of the

defendant’s pro se request for a speedy trial made while he was

represented by counsel); see also People v. Bergerud, 223 P.3d 686,

696-97 (Colo. 2010) (disfavoring denying review of an important

constitutional right merely because a defendant does not articulate

a concern with legal lexicon).

¶ 16 The United States Constitution and the Colorado Constitution

protect a defendant’s right to a speedy trial. U.S. Const. amend. VI;

Colo. Const. art. II § 16. Under both provisions, the right to a

speedy trial attaches with the filing of a formal charge. Moody v.

Corsentino, 843 P.2d 1355, 1363 (Colo. 1993). The defendant has

the burden to prove that his constitutional right to a speedy trial

was violated. Id. (citing People v. Small, 631 P.2d 148, 154 (Colo.

1981)).

¶ 17 To determine whether that right was violated, this court must

apply the test articulated in Barker v. Wingo, 407 U.S. 514, 530

(1972). Barker requires courts to weigh (1) the length of the delay;

(2) the reason for the delay; (3) the defendant’s assertion of his right

7
to a speedy trial; and (4) prejudice to the defendant. People v. West,

2019 COA 131, ¶ 11 (citing Barker, 407 U.S. at 530).

B. Analysis

¶ 18 Vernagallo focuses his speedy trial argument on the pretrial

delays associated with the competency proceedings. The People

respond that the delays caused by the state were justifiable and

that Vernagallo contributed to the delays by failing to cooperate

with the restoration process. Applying the Barker factors, we

conclude that Vernagallo’s constitutional speedy trial rights were

not violated.

1. Length of the Delay

¶ 19 The length of the delay initially functions as a “triggering

mechanism” that requires the court to consider whether the delay

length is “presumptively prejudicial.” West, ¶ 10 (citation omitted).

The delay between the date that Vernagallo was charged — which

took place in late August 2021 — and the trial — which did not take

place until October 2023 — was twenty-six months. Vernagallo

contends that the delay on its face is long enough to be

presumptively prejudicial, thus meriting further consideration of

the Barker factors. The People concede, and we agree, that the

8
twenty-six-month period was sufficient to trigger a presumption of

delay warranting further consideration of the Barker factors. See

People v. Sandoval-Candelaria, 2014 CO 21, ¶ 36 (“[T]he Supreme

Court has noted that courts generally have found delays

presumptively prejudicial at least as they approach one year.”

(citing Doggett v. United States, 505 U.S. 647, 652 n.1 (1992))).

¶ 20 While conceding that the twenty-six-month delay was

presumptively prejudicial, the People argue that the length of delay

is not determinative of whether Vernagallo’s speedy trial rights were

violated. They argue that there is no indication that the court or

the prosecution deliberately delayed the trial and that, without

evidence to the contrary, Vernagallo has failed to meet his burden

to prove that the court or the prosecution violated his speedy trial

rights. Relatedly, the People argue that the delays associated with

the competency evaluations were not unreasonable, particularly

because Vernagallo requested three separate evaluations and was

twice found incompetent.

¶ 21 Under the circumstances, which we address more fully in the

following analysis of the remaining Barker factors, we conclude that

the delays were insufficient to justify reversal under Barker.

9
2. Reason for the Delay

¶ 22 Both parties acknowledge that the restoration process played a

central role in the trial’s delay. Indeed, Vernagallo does not

meaningfully challenge any of the remaining periods of delay.

Where the parties differ is how much of the blame is attributable to

the court or the prosecution. See People v. DeGreat, 2020 CO 25,

¶ 17 (“It is well-settled law that the burden of compliance with the

speedy trial requirement rests with the prosecution and the trial

court.”). First, on the issue of how much of the delay should be

attributed to the prosecution or the court, Vernagallo acknowledges

that at least five months of the competency period are attributed to

the restoration process, which was lengthened due to Vernagallo’s

failure to cooperate with treatment. But Vernagallo argues that the

remaining nine months of the competency period should be

attributed to the state.7

7 The People calculate the period associated with the competency

evaluations to be seven months rather than nine months. We need
to not resolve this question, however, because even if we assume
the delay was nine months, it does not materially impact our
analysis of the speedy trial issue.

10
¶ 23 Vernagallo’s counsel raised competency concerns within a

month of when Vernagallo was charged. After a hearing, the trial

court found Vernagallo incompetent. He was placed in the custody

of Douglas County Jail from October until a bed became available

in CMHHIP. The time between the request for a competency

evaluation and the initial CMHHIP placement was 140 days.

¶ 24 Defense counsel raised competency for the second time in

September 2022. It took sixty-five days for Vernagallo to be found

competent.

¶ 25 In April 2023, the third time that defense counsel raised

competency concerns, it took fifty-two days for Vernagallo to be

evaluated and found incompetent. It was almost another month

before he was admitted to CMHHIP for restoration.

¶ 26 As Vernagallo notes, his counsel filed three separate motions

for competency evaluations. He does not contest that defense

counsel knew or should have known of the substantial delays

associated with these requests because of the lack of appropriate

state funding for competency evaluations, which was amplified by

the nursing crisis resulting from the COVID-19 pandemic. We

appreciate that defense counsel was obligated to raise the issue of

11
competency if they had a reason to know that Vernagallo was

incompetent. See § 16-8.5-102(b), C.R.S. 2025. But the repeated

requests, and Vernagallo’s resistance to treatment, made some

delay inevitable.

¶ 27 The People argue that the delays should not be attributed to

either the court or the prosecution because the competency process

is controlled by state employees that neither the court nor

prosecution control. Vernagallo responds that the delays should be

attributed to the court or the prosecution because this is a legally

mandated process and ultimately he should not be deprived of his

speedy trial rights due to the action or inaction of state officials.

See Vermont v. Brillon, 556 U.S. 81, 85 (2009) (stating that the state

may be charged with delays associated with a breakdown of the

public defender’s system while also noting that “delays sought by

counsel are ordinarily attributable to the defendants they

represent”).

¶ 28 But Vernagallo concedes that he is not aware of any authority

holding that delays in the competency process must be charged to

the prosecution or the court. Even so, we are troubled by the

People’s argument that incompetency delays should be excluded

12
from the speedy trial analysis. Ultimately, we do not need to resolve

this dispute because, even if we assume that the delays are

attributable to the court or the prosecution, the aggregate delay

attributable to the competency evaluations was not unreasonable.

¶ 29 The total time attributable to the competency delays, not

including delays associated with the restoration process, amounted

to 282 days, or approximately nine and a half months of the twenty-

six months between the filing of charges and the trial. Vernagallo

acknowledges that the balance of the competency delays was based

on his refusal to participate in the restoration process, rather than

delays in actually completing the evaluations.

¶ 30 We appreciate that Vernagallo struggled while incarcerated;

however, those struggles alone are insufficient to meet his burden

to prove that the delays were unjustified. Therefore, we cannot say

that the reasons for the delay weigh in his favor. See Small, 631

P.2d at 154 (the defendant bears the burden of showing that the

Barker factors establish a violation of his speedy trial rights).

1. Assertion of the Right to a Speedy Trial

¶ 31 While we have concluded that Vernagallo’s pro se filings were

adequate to preserve his speedy trial claim, we note that these

13
filings were thread-bare in terms of legal analysis. True, Vernagallo

asserted that he was often on lockdown, denied meals and hygiene,

and assaulted while awaiting restoration to competency. But these

allegations were typically mixed with a plethora of unrelated alleged

constitutional violations and past grievances, all of which were

devoid of legal analysis or authorities, including any analysis of the

Barker factors. See People v. Roberts, 2013 COA 50, ¶48 (declining

to address defendant’s speedy trial argument because, among other

reasons, he did not address any of the elements of the

constitutional right).

¶ 32 And notwithstanding Vernagallo’s pro se filings, defense

counsel never asserted that Vernagallo’s speedy trial rights were

being violated. On the contrary, defense counsel filed three

separate motions for competency evaluations, and at least one

motion for continuance.

¶ 33 Under these circumstances, Vernagallo’s undeveloped pro se

assertion of his speedy trial rights — while sufficient to preserve his

speedy trial claim — do not weigh in favor of finding a speedy trial

violation.

14
4. Prejudice as a Result of the Delay

¶ 34 This factor considers prejudice in the context of the

defendant’s interests that the constitutional speedy trial rights are

designed to protect, including the right to (1) “prevent oppressive

pretrial incarceration”; (2) “minimize anxiety and concern of the

accused”; and (3) “limit the possibility that the defense will be

impaired.” Barker, 407 U.S. at 532. Of these factors, “the most

serious is the last, because the inability of a defendant adequately

to prepare his case skews the fairness of the entire system.” Id.

¶ 35 Vernagallo asserts that the pretrial incarceration caused him

to suffer extreme anxiety, as well as abuse, and that he lacked

access to meals and hygiene resources, which exacerbated his

mental health struggles. But Vernagallo does not allege that the

passage of time prejudiced his preparation or the presentation of

his defense — for example, a loss of evidence, witnesses, or his own

memory of the events at issue.

¶ 36 The People amplify the absence of any suggestion that the

delay compromised Vernagallo’s ability to present a factual or legal

defense. The People also note that in his subsequent re-sentencing,

15
the court credited him for time served while he was in pretrial

confinement.

¶ 37 Considering the four Barker factors in the aggregate, we

conclude that the trial court did not violate Vernagallo’s speedy trial

rights. See People v. Curren, 2014 COA 59M, ¶ 40 (two-year delay

did not violate defendant’s federal or state speedy trial rights);

People v. Fears, 962 P.2d 272, 279 (Colo. App. 1997) (delay of three

years and four months did not violate defendant’s speedy trial

rights).

III. Miranda Claim

¶ 38 Vernagallo next contends that the trial court reversibly erred

by denying his motion to suppress because he did not knowingly

waive his Miranda rights. We disagree.

A. Additional Facts

¶ 39 Defense counsel moved to suppress the statements Vernagallo

made to police officers in the back of the police car on the basis that

he could not have knowingly waived his Miranda rights due to the

severity of his mental illness. The trial court set the matter for a

hearing, where it heard testimony from Sergeant Terreault and

Officer Litwiller.

16
¶ 40 Terreault, who responded to the 911 call, testified that officers

treated the initial contact with Vernagallo as a high-risk stop due to

the indication that he was armed with a weapon. As a result,

approximately five officers were present at the time of arrest, and

they had their weapons drawn. Terreault — one of the officers

providing backup — testified that he observed Vernagallo

responding appropriately to the commands that other officers gave

him and that Vernagallo did not demonstrate any concerning

responses. He also testified that there was a note in the 911 call

that Vernagallo had mental health issues, but the note lacked any

diagnosis and did not indicate that there were limitations

associated with the mental illness.

¶ 41 Officer Litwiller — who questioned, handcuffed, and arrested

Vernagallo — testified that Vernagallo responded appropriately to

his commands and understood the questions that he was being

asked. Litwiller stated that while Vernagallo was handcuffed inside

of the patrol vehicle, he and the other questioning officer did not

have their weapons drawn. He also testified that he spoke to

Vernagallo for a “couple of minutes” after Vernagallo was placed in

the car and that Vernagallo seemed relaxed prior to the Miranda

17
advisement and gave responses indicating that he understood the

questions.

¶ 42 Defense counsel argued that Vernagallo’s unkempt and sweaty

appearance, his casual tone, the removal of his shirt (which he did

not put back on), and the later finding that he was incompetent to

stand trial, together suggests that he was not fully capable of

understanding the circumstances he was facing and the

consequences of incriminating himself.

¶ 43 The prosecutor responded that an evaluation to determine

competency focuses on a particular time and is driven by different

considerations than those used to determine whether a defendant

understood and knowingly waived his Miranda rights. The

prosecutor urged the court to review the body camera (bodycam)

footage of the advisement, waiver, and resulting interrogation,

arguing that the footage provided “compelling evidence” that

Vernagallo understood his Miranda rights. Moreover, the

prosecutor argued that a defendant’s mental health history is a

relevant, but not dispositive, factor when evaluating whether a

defendant’s waiver was knowing and intelligent under Miranda. See

People v. Kaiser, 32 P.3d 480, 486 (Colo. 2001) (“A defendant’s

18
mental capacity is important in determining whether [he] made a

knowing and intelligent waiver, however it should not be the only,

or even the primary, factor in a trial court’s analysis.”). Given the

totality of the circumstances, the prosecutor argued the trial court

should find the waiver was knowing, voluntary, and intelligent.

¶ 44 The court denied the suppression motion after making the

following findings:

I will tell you when I read through this over the
weekend, I was concerned a bit, but after
watching the [bodycam] footage and hearing
the defendant’s responses, I’m satisfied based
on the totality of the circumstances that he did
understand the commands, that he responded
to the commands appropriately, and that he
did knowingly and voluntarily and intelligently
waive his right to Miranda.

He seemed calm. I don’t think that’s
dispositive. He seemed — his appearance is
what his appearance is. That’s certainly not
dispositive even in combination with the fact
that he may have been sweaty or casual to
indicate to the officers that he didn’t
understand commands, that he didn’t fully
appreciate what was going on. Even with the
mental health flag, the officers were both
pretty firm in their testimony that he pulled
over appropriately, responded appropriately to
commands, and understood their commands
and responded appropriately.

19
So the [c]ourt will find under the totality of
circumstances that his Miranda [rights were]
knowingly, voluntarily, and intelligently
waived.

B. Standard of Review and Applicable Law

¶ 45 Generally, we review a trial court’s ruling on a motion to

suppress as a mixed question of law and fact. Gow v. People, 2019

CO 30, ¶ 13. We defer to the court’s factual findings if they are

supported by the record but review its legal conclusions de novo.

Id. If the statements sought to be suppressed are recorded,

however, we may independently review the recording. See People v.

Kutlak, 2016 CO 1, ¶ 13. In such circumstances, we are in the

same position as the trial court to weigh the import of the

recording, and assuming other material facts are not disputed, our

entire review is de novo. People v. Sellers, 2022 COA 102, ¶ 9.

¶ 46 Defendants in criminal cases have a constitutional right

against self-incrimination. U.S. Const. amend. V; Colo. Const. art.

II, § 18; Miranda v. Arizona, 384 U.S. 436, 444 (1966); People v.

Aguilar-Ramos, 86 P.3d 397, 400 (Colo. 2004). Under Miranda, the

prosecution may not use a statement obtained by police during a

custodial interrogation in its case-in-chief unless the suspect was

20
advised of, and validly waived, their Fifth Amendment rights.

People v. Alemayehu, 2021 COA 69, ¶ 73 (citing People v. Wood, 135

P.3d 744, 749 (Colo. 2006)). The prosecution must show by a

preponderance of the evidence that the waiver was valid. People v.

Smiley, 2023 CO 36, ¶ 15 (citing Berghuis v. Thompkins, 560 U.S.

370, 383-84 (2010)).

¶ 47 “A waiver is knowing and intelligent when made with full

awareness of the nature of the right being abandoned and the

consequences of the decision to abandon it.” People v. Platt, 81

P.3d 1060, 1065 (Colo. 2004); People v. Hopkins, 774 P.2d 849, 851

(Colo. 1989).

¶ 48 Generally, to determine whether a waiver is knowing

voluntary, and intelligent, courts may consider a number of factors:

(1) the lapse of time between an initial Miranda
advisement and a subsequent interrogation, (2)
the extent to which a suspect has been
informed or is aware of the subject matter of
the interrogation prior to its commencement,
(3) whether the accused or the interrogating
officer initiated the interview, (4) whether and
to what extent the accused was reminded of
his rights prior to the interrogation, (5) the
clarity and form of the defendant’s
acknowledgement and waiver, if any, and (6)
the background and experience of the accused
in connection with the criminal justice system.

21
People v. Humphrey, 132 P.3d 352, 356 (Colo. App. 2006).

¶ 49 When a defendant’s competency is raised, the court may

consider additional factors when evaluating whether the Miranda

waiver was voluntary, including whether the defendant:

• appeared oriented to their surroundings and situation;

• answered questions in a way that was responsive and

rational;

• appreciated the seriousness of their predicament,

including the possibility of being incarcerated;

• attempted to deceive the police;

• expressed remorse for their conduct; and

• expressly stated that they understood their rights.

Platt, 81 P.3d at 1066.

C. Analysis

¶ 50 Vernagallo argues that the trial court erroneously found that

he knowingly waived his Miranda rights because under the Platt

factors, he appeared disassociated from the circumstances and did

not understand the severity of the situation. Vernagallo points to

the fact that he never placed his shirt back on and appeared to be

sweating — presumably manifesting some degree of anxiety while at

22
the same time his affect was calm. Vernagallo also amplifies the

subsequent evaluation that found him incompetent, based in part

on the fact that at the time of his competency examination he did

not appear to understand the risks of self-incrimination if he made

statements.

¶ 51 The People respond that under the totality of the

circumstances, Vernagallo was engaged with law enforcement,

responded appropriately to their questions, did not appear

emotionally pressed or erratic, and affirmatively stated that he

understood and waived his Miranda rights and was willing to speak

to law enforcement.

¶ 52 Having independently reviewed the bodycam footage of

Vernagallo’s advisement, waiver, and subsequent interactions with

the police, we conclude that the trial court did not err by finding

that Vernagallo’s waiver was knowing, voluntary, and intelligent.

Although he did not choose to wear his shirt, we do not view that as

indicative of a mental condition or disassociation. Vernagallo was

sitting handcuffed in the back of the police cruiser on what

appeared to be a warm August day. Thus, deciding not to put his

shirt back on was not necessarily reflective of a mental condition.

23
¶ 53 But more importantly, Vernagallo listened to the Miranda

advisement, responded “sir, yes sir” when asked if he understood

his rights, and said “sure” when asked whether he wished to speak

with law enforcement. Thereafter, he responded appropriately in

terms of substance, tone, and demeanor when responding to the

officer’s questions. During this relatively short exchange (less than

three minutes), Vernagallo never appeared disoriented, emotionally

flat, or unable to understand the officer’s questions. He even

apologized for “playing a joke [on his] sister” and for having the

police called out for the incident.

¶ 54 True, as Vernagallo argues, he was subsequently found

incompetent after two different competency evaluations. While

relevant, the competency evaluations were made at a later date and

were based on a different set of criteria. Thus, the subsequent

incompetency findings do not control the question of whether

Vernagallo knowingly and intelligently waived his Miranda rights.

And most importantly, we have reviewed the recording of

Vernagallo’s Miranda advisement and waiver, and it confirms that

his waiver was knowing and intelligent.

24
¶ 55 Given the totality of the circumstances, we conclude that the

trial court did not err by finding that Vernagallo’s waiver of his

Miranda rights was knowing and intelligently made and thereafter

denying his motion to suppress.

IV. Prosecutorial Misconduct

¶ 56 Vernagallo argues that the prosecutor engaged in three

instances of prosecutorial misconduct by (1) misstating the law

during his opening statement; (2) inappropriately analogizing the

incident to reporting a false bomb threat or pulling a fire alarm; and

(3) offering an improper personal opinion as to Vernagallo’s guilt

during closing argument. We address each argument below.

A. Standard of Review and Applicable Law

1. Preservation and Standard of Review

¶ 57 We engage in a two-step analysis to review prosecutorial

misconduct claims. People v. Herold, 2024 COA 53, ¶ 67. First, we

consider “whether the prosecutor’s questionable conduct was

improper based on the totality of the circumstances,” and then we

consider “whether such actions warrant reversal.” Wend v. People,

235 P.3d 1089, 1096 (Colo. 2010).

25
¶ 58 Prosecutors, “while free to strike hard blows, [are] not at

liberty to strike foul ones.” Domingo-Gomez v. People, 125 P.3d

1043, 1048 (Colo. 2005) (citing Wilson v. People, 743 P.2d 415, 418

(Colo. 1987) (quoting Berger v. United States, 295 U.S. 78, 88

(1935)). During closing argument, a prosecutor “may refer to the

strength and significance of the evidence, conflicting evidence, and

reasonable inferences that may be drawn from the evidence.”

People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006). But

prosecutors may not express their personal opinion that a

defendant is guilty. People v. Rhea, 2014 COA 60, ¶ 80. “In

determining the propriety of [such] statements, we consider ‘the

language used, the context in which the statement was made, and

any other relevant factors.’” People v. Whitman, 205 P.3d 371, 384

(Colo. App. 2007).

¶ 59 Defense counsel objected to the prosecutor’s bomb scare and

fire alarm analogies during closing argument, and therefore, those

claims are preserved. We review preserved claims of prosecutorial

misconduct for harmless error. People v. Licona-Ortega, 2022 COA

27, ¶ 87. Under harmless error review, we will disregard the error

unless it “substantially influenced the verdict or affected the

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fairness of the trial proceedings.” Id. (citing Hagos v. People, 2012

CO 63, ¶ 12).

¶ 60 The claims related to the prosecutor’s opening statement

about a joke and the portion of the closing argument related to

personal opinions were not preserved. We review unpreserved

claims for plain error. Hagos, ¶ 14. Plain error is obvious and

substantial. Id. Reversal under those circumstances only occurs

when the error “so undermined the fundamental fairness of the trial

itself so as to cast serious doubt on the reliability of the judgment of

conviction.” Id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)).

1. Applicable Law

¶ 61 Menacing occurs when a person “by any threat or physical

action, . . . knowingly places or attempts to place another person in

fear of imminent serious bodily injury.” § 18-3-206, C.R.S. 2025

(Emphasis added). “A person acts ‘knowingly’ . . . with respect to

conduct or to a circumstance . . . when he is aware that his conduct

is of such nature or that such circumstance exists.” § 18-1-501(6),

C.R.S 2025. “A person acts ‘knowingly’ . . . with respect to a result

of his conduct, when he is aware that his conduct is practically

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certain to cause the result.” Id. Acting knowingly is distinct from a

voluntary act, which is defined — in pertinent part — as “an act

performed consciously as a result of effort or determination . . . .”

§ 18-1-501(9).

B. Analysis

1. Opening Statement

¶ 62 Vernagallo contends that reversal is warranted because the

prosecutor misstated the law during his opening statement by

conflating the knowing mens rea element of menacing with a

voluntary act, and because of the misstatement, his right to a fair

trial was compromised.

¶ 63 The People respond that, when the prosecutor’s comment is

read in full context, it appropriately explained the “knowingly”

mental state. Specifically, the People reason that the opening

statement was made in response to the defense’s theory that

Vernagallo did not knowingly menace Bond and Adame because he

was only joking. We agree that contrasting menacing with joking

did not constitute prosecutorial misconduct.

¶ 64 During his opening, the prosecutor stated:

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A person acts knowingly when he’s aware that
his conduct is of such nature or that such
circumstance exists. A person acts knowingly
with respect to a result of his conduct when
he’s aware that his conduct is practically
certain to cause the result.

We’re not asking . . . if [this] is this a joke.
That’s not the question. What does someone
intend to do. You don’t even have to go to
what does someone intend to do. You’re just
being asked, [did] he know what he was
doing[?] It’s not an accident.

...

You don’t even have to get to what he
intended. You don’t even get to ask that
question. But you’re told what he intended.
You’ll hear what he intended was to put them
in fear, because he was bored. That’s what
we’re here about. He knew what he was doing.
He knew exactly what he was doing, and that’s
exactly what the evidence will tell you.

...

He knew that by taking out that gun,
. . . pointing it at his sister’s face, pointing it at
her boyfriend, pulling the trigger, he knew
exactly what he was doing, putting them in
fear that that was a real gun and they were
about to die. That’s exactly what he was trying
to do.

(Emphasis added.)

¶ 65 When viewed in context, the prosecutor’s references to

whether Vernagallo consciously intended to menace Bond and

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Adame did not misstate the meaning of knowingly or disavow the

prosecution’s obligation to prove the knowing element of menacing.

Rather, the prosecution was simply attempting to rebut the

argument that a defendant may avoid being found guilty of

menacing simply by saying that the act was intended as a joke.

¶ 66 To establish that Vernagallo menaced Bond and Adame, the

prosecution was required to prove that Vernagallo knew that his

conduct was “practically certain” to cause the victims to believe that

they were “in fear of imminent serious bodily injury.” See § 18-3-

1. While a portion of the prosecutor’s statement focused on

whether Vernagallo pulled the gun on them as a joke, the following

paragraphs focused on whether Vernagallo intentionally acted in a

manner that was practically certain to illicit fear, which goes toward

whether Vernagallo’s actions were knowing. See § 18-1-501(6).

¶ 67 The prosecutor properly urged the jury to consider whether, by

pointing the revolver at his “sister’s face, pointing it at her

boyfriend, pulling the trigger, he knew exactly what he was doing,

putting them in fear that that was a real gun and they were about

to die.” The argument does not constitute misconduct

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2. Bomb Scare and Fire Alarm Analogies

¶ 68 Vernagallo next contends that the prosecution engaged in

misconduct by analogizing the incident to calling in a bomb scare or

pulling a fire alarm in a public space. We disagree.

During closing argument, the prosecutor said:

[Prosecutor]: Remember, it’s not a joke, it’s a
crime. You don’t get to say, you know what, I
think it would be funny to call 911 and call in
a bomb scare. But I perceive that law
enforcement’s just going to have a good old
laugh about this. They’re going to chuckle
about it. No. That’s a crime. You may
perceive it to be a joke, but that’s a crime. I
think it would be funny.

[Defense Counsel]: Your Honor, I object. These
are different statutes with different mental
states.

[Prosecutor responds and trial court overrules
the objection.]

[Prosecutor]: You think it’s funny to say I’m
going to pull the fire alarm in a theater; be a
big joke. I’m going to pull a fire alarm at
school because I want to get out of a test. It’s
a crime. It’s not a joke. Just like you can say
I think it would be funny to scare somebody by
pointing what looks like a real gun in their
face. Crime, not a joke. The statute doesn’t
say what does [Vernagallo] perceive, the
statute says is he aware that his conduct is
practically certain to cause the result.

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¶ 69 Vernagallo contends that comparing the incident to pulling a

fire alarm or calling in a false bomb threat was reversible error

because the public nature of both analogies is not comparable and

had the potential to improperly appeal to the jury’s sympathy. The

People disagree, noting that the analogies properly focused on the

actor’s intentional conduct, which goes towards whether Vernagallo

acted knowingly.

¶ 70 Vernagallo stated that he was only joking and was not trying

to upset Bond or Adame. Vernagallo also defended the charges on

the theory that his intention was to play a prank, so the

prosecution properly explained how, regardless of whether

Vernagallo intended to play a joke, the jury’s focus should be on

whether in doing so he knowingly placed Bond and Adame “in fear

of imminent serious bodily injury.” § 18-3-206.

¶ 71 Furthermore, we disagree with the assertion that Vernagallo’s

actions were limited to Bond and Adame. He got into his car and

followed them down the street, and the neighbor also believed that

he was armed with a weapon. That behavior occurred in public and

had the potential to scare others.

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¶ 72 Thus, we reject Vernagallo’s contention that the prosecutor

engaged in misconduct by analogizing the incident to pulling a fire

alarm or calling in a bomb threat.

1. Opinion Argument

¶ 73 Vernagallo next contends that the prosecution improperly

expressed a personal opinion about his guilt during closing

argument.

¶ 74 During the initial closing, the prosecutor stated, without

objection, the following:

Each one of these charges has been proven
beyond a reasonable doubt. It was the
defendant. It was here in Douglas County, on
August 11th of 2021. He knew exactly what
he was doing. And not only did he know what
he was doing, that’s what he intended to do.
That was his goal, was to put [the victims] in
fear of imminent serious bodily injury. And he
used this replica gun to do it. He’s guilty of
both of those charges.

During rebuttal the prosecutor also stated, without objection,

There’s only one thing that you’re trying to do
when you point this at someone’s head.
There’s only one thing you’re trying to do when
you’re holding that gun out of a car as two
people are running for their lives. You’re
menacing [Bond] and you’re menacing
[Adame]. The defendant is guilty on both of
those counts.

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¶ 75 Vernagallo argues that these statements reflected the

prosecutor’s personal opinion that Vernagallo was guilty. We

disagree.

¶ 76 “[P]rosecutorial remarks that evidence personal opinion,

personal knowledge, or inflame the passions of the jury are

improper.” Domingo-Gomez, 125 P.3d at 1050. To determine

whether a prosecutor’s remarks are improper, the court must look

at the language used in context of the entire statement. Sellers,

¶ 25. Here, the comments were not preceded by statements that

indicated that they were based on the prosecutor’s beliefs such as “I

believe” or any type of similar statement that would lead the jury to

believe that the statements are tied to the prosecutor’s personal

beliefs or personal knowledge about the situation. The statements

related to Vernagallo’s guilt were based on the evidence and the jury

instructions. People v. Villa, 240 P.3d 343, 358 (Colo. App. 2009)

(explaining that asking a jury to find a defendant guilty is simply

asking the jury to make a reasonable inference about the evidence).

In context, the argument did not cross over into expressing a

personal belief. Therefore, we discern no error, much less plain

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error, associated with the trial court’s decision not to unilaterally

address this argument.

V. Cumulative Error

¶ 77 Finally, Vernagallo contends that the cumulative impact of the

asserted errors requires reversal. “The doctrine of cumulative error

is based on the notion that multiple errors, in isolation, may be

viewed as harmless, but the synergistic effect of the multiple errors

may be so prejudicial that they deprive a defendant of a fair trial.”

People v. Serna-Lopez, 2023 COA 21, ¶ 47. “For reversal to occur

based on cumulative error, a reviewing court must identify multiple

errors that collectively prejudice the substantial rights of the

defendant, even if any single error does not.” Howard-Walker v.

People, 2019 CO 69, ¶ 25. Because we discern no error, much less

multiple errors, Vernagallo’s cumulative error claim necessarily

fails.

VI. Disposition

¶ 78 The judgment is affirmed.

JUDGE BROWN and JUDGE BERGER concur.

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