People v. Relaford , 2016 Colo. App. LEXIS 920 ( 2016 )

COLORADO COURT OF APPEALS 2016COA99
Court of Appeals No. 15CA0124
Mesa County District Court No. 11CR1108
Honorable Richard T. Gurley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
David A. Relaford,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division V
Opinion by JUDGE BERGER
Román and Plank*, JJ., concur
Announced June 30, 2016
Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough,
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. 2015.
¶1 A jury convicted defendant, David A. Relaford, of twenty-seven
offenses related to sexual assaults against two child victims, and
the trial court sentenced him to an aggregate indeterminate term of
204 years to life under the Colorado Sex Offender Lifetime
Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S.
2015. Relaford appeals the judgment of conviction and the
sentence imposed.
¶2 Relaford argues that the trial court reversibly erred in
admitting (1) expert testimony about the credibility of child victims
of sexual assault and (2) numerous sex toys and pornography found
at his home. He also argues that SOLSA is unconstitutional. We
address and reject these contentions and affirm.
I. Facts and Procedural History
¶3 In the summer of 2011, seven-year-old O.S. and his adoptive
mother lived with Relaford at his house. Several weeks after O.S.
and his mother moved out, O.S. told his mother that Relaford had
sexually assaulted him. His mother called the police, and a police
detective conducted a forensic interview with O.S.
¶4 During the interview, O.S. described multiple incidents in
which Relaford sexually assaulted him. O.S. said that Relaford
1
sometimes used sex toys during the assaults and they had watched
a pornographic movie and looked at pornographic magazines
together. O.S. also told the detective that he had witnessed
Relaford sexually assault another child, M.D., an eight-year-old girl
who lived nearby and was friends with O.S.
¶5 The detective conducted a forensic interview with M.D. M.D.
initially denied that anything had happened with Relaford. About
twenty-five minutes into the interview, the detective began to ask
more focused questions about M.D.’s relationship and experiences
with O.S. and Relaford. The detective told M.D. that O.S. said that
he had seen something happen to M.D. when M.D. was at his
house. About fifteen minutes later, the detective told M.D. that she
(the detective) knew what had happened but that “it need[ed] to
come from M.D.” M.D. responded, “Dave [Relaford] has actually
done it to me.”
¶6 Like O.S., M.D. detailed several instances of sexual assault by
Relaford, including at least one instance in which he used a sex toy.
M.D. also described watching pornographic movies with Relaford
and looking at pornographic magazines at his house.
2
¶7 The People charged Relaford with five incidents of sexual
assault against O.S. and six incidents against M.D., differentiated
by the location where each incident occurred. For each incident,
Relaford was charged with one count of sexual assault on a child
and one count of sexual assault on a child by one in a position of
trust. He was also charged with four counts of committing sexual
assault on a child as part of a pattern of abuse and one count of
second degree kidnapping (based on M.D.’s statement that during
one assault, Relaford took her from the living room of his home into
his bedroom).
¶8 Both victims testified at trial, and video recordings of their
forensic interviews were admitted and played for the jury. The
interviewing detective also testified regarding the interviews and the
investigation of Relaford, including the search of his home (under a
warrant) and his police interview.
¶9 The detective testified that the police had found numerous sex
toys and pornographic videos and magazines at Relaford’s house
and property. Many of the places where the sex toys and
pornography were found were consistent with the victims’
descriptions of those locations. Both victims also said that Relaford
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used Vaseline during the assaults, and O.S. testified that Relaford
got the Vaseline from the bathroom. Vaseline was found in
Relaford’s bathroom. Additionally, O.S.’s description of several of
the sex toys Relaford used during the assaults matched the
appearance of some of the toys found. A sex toy that M.D. gave to
her mother after her forensic interview was also admitted into
evidence. Her mother testified that M.D. had told her that Relaford
had given M.D. the toy with instructions to use it on herself.
¶ 10 The sex toys were submitted for DNA testing. The
prosecution’s DNA expert testified that DNA samples from one of
the sex toys O.S. had identified matched O.S.’s and Relaford’s DNA.
DNA samples from the sex toy M.D. said Relaford had given her
matched M.D.’s DNA.
¶ 11 The prosecution also presented testimony from the nurses who
had examined the victims. The nurse who examined O.S. testified
that the findings she made during her examination of his anus were
consistent with the disclosures he had made to her about the
sexual assaults by Relaford. The nurse who examined M.D.
testified that she did not observe any injuries attributable to the
4
disclosures M.D. had made to her about the sexual assaults, but
that did not mean M.D. had not been sexually assaulted.
¶ 12 Another part of the prosecution’s case-in-chief was evidence of
statements Relaford made during the investigation. The detective
testified that during her interview of Relaford, he had initially told
her that he had been alone with both children, that the children
had never been in his bedroom, and that his pornography was
locked up where the children could not access it. However, after
the detective told Relaford that items had been collected for DNA
tests, he said the children could have gotten into his bedroom and
“snooped,” and that he had never been alone with the children.
¶ 13 The detective also testified about a letter Relaford had written
to his girlfriend after his arrest, which she had given to the police.
In the letter, Relaford said that he had once masturbated in their
tent when he was alone, and then he had “cleaned up” with soap
and water. He said that when he went camping with O.S., O.S.
vomited in almost the same spot. The prosecution argued that
these statements were significant because O.S. alleged that Relaford
had sexually assaulted him when they were camping, and before
Relaford wrote the letter, the detective had told him essentially that
5
if the police found his DNA and the kids’ DNA mixed together, it
would be very bad for him.
¶ 14 Relaford’s defense at trial was primarily that the victims’
testimony was not believable. Among other things, defense counsel
emphasized that (1) O.S. and M.D. testified to certain details that
they had omitted in their forensic interviews; (2) M.D. initially
denied that Relaford had sexually assaulted her; and (3) O.S.’s
description in his interview regarding some of Relaford’s physical
characteristics was inaccurate.
¶ 15 The jury convicted Relaford on all charges. The trial court
sentenced Relaford to twenty-four years’ imprisonment for
kidnapping, to be served consecutively to fifteen consecutive
sentences of twelve years to life that were concurrent to eleven
sentences of six years to life for the sexual assault convictions.
II. Expert Testimony
A. Additional Facts
¶ 16 During trial, the prosecution presented testimony from a
marriage and family therapist who was qualified as an expert in
“child sexual assault and abuse, specifically patterns of disclosure,
outcry statements, Victim-Offender relationship dynamics, the
6
process of memory, and suggestibility and fabrications.” Defense
counsel did not object to the therapist’s qualifications as an expert
in these areas. The therapist testified that she did not review any of
the police reports in the case or watch the forensic interviews, but
the prosecutor had provided her with some basic information about
the ages of the children, the relationships of the parties, and where
the events occurred.
¶ 17 The therapist then described the process of memory in general
and in children who have been sexually assaulted. She testified
that with multiple incidents of sexual assault occurring in similar
locations, children might mix up the details of each episode, and
inconsistent statements about what happened when were not
unusual. Additionally, she testified that younger children were
much more likely to omit an accurate detail about an event in one
interview that they included in a later interview than they were to
agree with suggestive or coercive questioning about something that
did not occur. Defense counsel did not object to any of this
testimony, and Relaford does not challenge it on appeal.
¶ 18 The prosecutor next asked the therapist a series of questions
about “fabrication.” The therapist testified that children do lie. She
7
said that preschool-age children lie when they are playing games
like hide-and-go-seek, and older children lie to avoid the
consequences of their actions and the blame, disappointment, or
disapproval of adults. However, she testified that research showed
that it is “pretty unusual, even kind of rare” for children to lie about
an adult. She testified that the few times they do so is because they
have mental health issues and (or alternatively) they are telling lies
in “the school environment” about teachers, family members, or
daycare providers.
¶ 19 After this testimony, the prosecutor asked the therapist about
her experiences with children fabricating allegations of sexual
assault. She testified that there were two areas in which
practitioners had encountered such fabrication. One was with
“system-savvy adolescents” who have “been in lots of different sorts
of institutional settings” and might fabricate an allegation against a
caregiver to force a placement change or to “get even.” The other
was in “very, very disturbed, high-conflict custody cases” in which
one parent convinced the child to say the other parent was sexually
abusing him or her. The therapist added that she had also
8
encountered situations in which adults misunderstood an innocent
statement by a preschooler as an allegation of sexual assault.
¶ 20 The prosecutor then asked the therapist, “Okay, what about,
of course, in our situation we’re talking about a seven- and eight-
year-old, a little bit beyond preschool? So, I mean, have you ever
experienced a situation where somebody in that age, seven or eight
— ,” at which point defense counsel objected. At the bench, defense
counsel explained that the prosecutor was trying to impermissibly
“get [the therapist] to say that these kids were not lying.” The trial
court sustained the objection but told the prosecutor he could ask
another question. The following colloquy between the prosecutor
and the therapist then occurred:
Q. [Prosecutor:] Okay, in your personal
experience and practice, have you ever come
across a false allegation of sexual abuse for —
in any other circumstance, other than what
you’ve already mentioned: severe mental
health, system-savvy adolescent regarding
placement, or high-conflict custody?
A. [Therapist:] The — those are the only ones
that I can think of that I have professionally
seen in 30 years, or in the people I’ve
supervised.
Defense counsel did not object to this testimony.
9
¶ 21 The therapist proceeded to testify about other topics, such as
the dynamics between sexual abuse victims and perpetrators,
including why a child might deny that abuse occurred or delay in
disclosing a sexual assault; the typical demeanor of children during
forensic interviews and when a child might make a “fantastic
statement” about something that cannot be true; and the
“grooming” of children for sexual assault, including the use of
pornography and sex toys. No objections were lodged to this
testimony, and none of it is challenged on appeal.
¶ 22 At the close of evidence, the trial court gave the jury a
standard credibility of witnesses instruction and instructed the jury
that it was not bound by the testimony of experts and expert
testimony was to be weighed as that of any other witness.
¶ 23 During rebuttal closing argument, the prosecutor relied on the
therapist’s testimony on fabrication to argue that none of the
circumstances in which the therapist testified children lie about
sexual assault were present here, thus implying that the victims
were telling the truth.
10
B. Law and Application
¶ 24 Relaford argues that the therapist’s testimony regarding the
circumstances in which a child might fabricate claims of sexual
assault and her statement that she had never encountered sexual
assault fabrications in any other circumstances constituted
impermissible opinion testimony that the victims in this case were
not lying. We agree, but we conclude that the admission of this
evidence did not constitute plain error.
1. Admissibility of the Testimony
¶ 25 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). A trial
court abuses its discretion if its ruling was manifestly arbitrary,
unreasonable, or unfair, id., or if it misconstrued or misapplied the
law, People v. Glover, 2015 COA 16, ¶ 10.
¶ 26 CRE 402 provides that relevant evidence is generally
admissible. However, specific evidentiary rules limit the
admissibility of certain types of evidence. CRE 404(a) prohibits
“[e]vidence of a person’s character or a trait of his character” if
admitted “for the purpose of proving that he acted in conformity
therewith on a particular occasion.” CRE 608(a) provides a limited
11
exception to the general rule of CRE 404(a) and allows a party,
under the prescribed conditions, to present opinion or reputation
evidence of a witness’s character for truthfulness. People v. Serra,
2015 COA 130, ¶ 62.
¶ 27 “CRE 608 evidence is not permitted to establish whether a
witness testified truthfully on the witness stand or whether he or
she was truthful on a particular occasion.” Liggett v. People, 135
P.3d 725, 731 (Colo. 2006). “[E]xperts may not offer their direct
opinion on a child victim’s truthfulness or their opinion on whether
children tend to fabricate sexual abuse allegations.” People v.
Wittrein, 221 P.3d 1076, 1081 (Colo. 2009). The supreme court has
held that expert testimony that children tend not to fabricate stories
of sexual abuse is “tantamount to [an expert] testifying that [a] child
victim was telling the truth about her allegations.” Id. at 1082
(citing People v. Snook, 745 P.2d 647, 648 (Colo. 1987)).1
1 In People v. Snook, 745 P.2d 647, 648-49 (Colo. 1987), the
supreme court concluded that the expert’s testimony that children
tend not to fabricate stories of sexual abuse was improper under
CRE 608(a) also because the testimony “necessarily refer[ed] to [the
victim’s] character for truthfulness,” and the victim’s character for
truthfulness had not been attacked at the time the expert opinion
was offered. Although the supreme court did not explicitly state
12
¶ 28 On the other hand, expert testimony is admissible under CRE
702 “if the expert’s specialized knowledge will assist the jury in
understanding the evidence or in determining a fact in issue.”
People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007). Along these
lines, “[a]n expert may testify as to the typical demeanor and
behavioral traits displayed by a sexually abused child.” Id. This
type of testimony is generally admissible because it assists the jury
in understanding the victim’s behavior after the incident — why the
victim acted the way he or she did. See, e.g., People v. Fasy, 829
P.2d 1314, 1317-18 (Colo. 1992); People v. Morrison, 985 P.2d 1, 3-
6 (Colo. App. 1999), aff’d, 19 P.3d 668 (Colo. 2000); People v. Koon,
724 P.2d 1367, 1369-70 (Colo. App. 1986). “Background data
providing a relevant insight into the puzzling aspects of the child’s
conduct and demeanor which the jury could not otherwise bring to
its evaluation . . . is helpful and appropriate in cases of sexual
abuse of children . . . .” People v. Whitman, 205 P.3d 371, 383
(Colo. App. 2007) (citation omitted).
that the testimony was improper both for this reason and because
the expert opinion referred to the victim’s truthfulness on a specific
occasion, a careful reading of the decision shows that this is the
case.
13
¶ 29 For example, in Koon, 724 P.2d at 1369, a division of this
court held admissible expert “testimony by [a] police psychologist
about behavioral patterns of child incest victims, and the
supporting testimony by [a] social worker that the [child victim] fit
these patterns.” The division explained that the testimony was
admissible to show that the reaction of the victim was “uniquely
similar to the reaction of most victims of familial child abuse.” Id.
at 1369-70.
¶ 30 While such “testimony may incidentally give rise to an
inference that a victim is or is not telling the truth about the
specific incident,” “this fact alone is insufficient to deny admission
of the evidence, because expert testimony generally tends to bolster
or attack the credibility of another witness.” Id. at 1370; see also
Morrison, 985 P.2d at 5-6 (Although this type of testimony
“necessarily carrie[s] with it the implication that the child’s report of
sexual abuse was true,” it is proper expert testimony because it
“aid[s] the jury in understanding the typicality of reactions by
[children] who have been subjected to sexual abuse that might,
under other circumstances, be considered bizarre.”); People v.
14
Aldrich, 849 P.2d 821, 829 (Colo. App. 1992); People v. Deninger,
772 P.2d 674, 676 (Colo. App. 1989).
¶ 31 However, Koon and similar cases “do not stand for the
proposition that testimony of general characteristics of any type is
admissible to attack or support a witness’s credibility.” People v.
Cernazanu, 2015 COA 122, ¶ 20. Rather, they “deal with the
admissibility of general characteristics evidence which (1) relates to
an issue apart from credibility and (2) only incidentally tends to
corroborate a witness’s testimony.” Id.
¶ 32 The therapist’s testimony here, that she had not encountered
any circumstances in her thirty-year career in which children had
lied about sexual abuse other than those she had described, did not
relate to an issue apart from credibility. The testimony was not an
explanation of the typical demeanor and behavioral traits displayed
by a sexually abused child for the purpose of allowing the jury to
compare the victims’ behavior with the typical behavior of child
sexual abuse victims and aid it in understanding the victims’
actions. Cf. Morrison, 985 P.2d at 6 (“[S]ubstantially all of th[e]
expert’s testimony was properly received under CRE 702 to aid the
15
jury in understanding the typicality of reactions by young boys who
have been subjected to sexual abuse.”).
¶ 33 The other testimony by the therapist, describing in general
terms the process of memory, common reactions of child victims of
sexual abuse, and the typical relationship between victims and
perpetrators, served this purpose. That testimony could have
assisted the jury in understanding, for example, O.S.’s delay in
disclosing the sexual assaults to his mother; the inconsistencies
between each victim’s statements, including why the victim
mentioned certain details in one statement that he or she had
omitted in a prior statement; M.D.’s initial denial that Relaford had
sexually assaulted her; and O.S.’s inaccurate description of
Relaford’s physical appearance. Thus, the therapist’s testimony
regarding the general behavior of child sexual assault victims could
have aided the jurors in deciding the case by providing them a
context in which to understand specific evidence, but it did not tell
them what result to reach.
¶ 34 In contrast, the therapist’s testimony about children
fabricating sexual assault allegations did not serve any purpose
other than to attempt to influence the jurors’ credibility
16
determinations. See id.; see also Snook, 745 P.2d at 649 (“[T]he
jury’s only conceivable use of [the] testimony would be as support
for the [victims’] truthful character[s].”). Because the therapist
testified that she had not encountered any circumstances other
than those she had described in which children lied about being
sexually assaulted, and those circumstances were not present in
this case, the testimony necessarily constituted an impermissible
expert opinion that the victims were “almost certainly telling the
truth.” Snook, 745 P.2d at 649.
¶ 35 Accordingly, this evidence should not have been presented to
the jury.
2. Plain Error
¶ 36 Although defense counsel objected to one question that the
prosecutor asked the therapist and the objection was sustained,
defense counsel did not object to the testimony that we have
concluded was inadmissible. We thus review for plain error. See
Wittrein, 221 P.3d at 1082.
¶ 37 “To constitute plain error, the trial court’s error must be
obvious and substantial and so undermine the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
17
of the judgment of conviction.” People v. Weinreich, 119 P.3d 1073,
1078 (Colo. 2005).
¶ 38 An error may be obvious “if the issue has been decided by a
division of this court or the Colorado Supreme Court.” People v.
Ujaama, 2012 COA 36, ¶ 42.
¶ 39 For two reasons, the admission of the therapist’s testimony on
fabrication was not plain error.
¶ 40 First, the error was not “obvious.” Miller, 113 P.3d at 750.
The therapist did not directly testify that the child victims were
telling the truth, which would have been obviously impermissible.
Conversely, under the existing case law, it is not always clear (or
even consistent among cases) where to draw the line between expert
testimony on the typical characteristics of sexual assault victims
that is permissible and that which is impermissible because it is
tantamount to an opinion that the victim was telling the truth.
¶ 41 Cernazanu, ¶ 20, explicitly states the rule that general
characteristics evidence is permissible when the evidence “relates to
an issue apart from credibility and . . . [it] only incidentally tends to
corroborate a witness’s testimony.” But at issue in Cernazanu,
¶ 21, was testimony regarding “‘characteristics’ peculiar to [the
18
victim that] were directly indicative of [her] credibility,” not the
characteristics “of a class of victims.” Cernazanu’s holding thus did
not concern when expert testimony on the general characteristics of
sexual assault victims is inadmissible because it constitutes an
opinion that the victims in the case had been truthful.
¶ 42 Accordingly, the issue here “ha[d] not yet been decided by a
division of this court or the Colorado Supreme Court,” and so the
error was not obvious. People v. Sandoval-Candelaria, 328 P.3d
193, 201 (Colo. App. 2011), rev’d on other grounds, 2014 CO 21; see
also People v. O’Connell, 134 P.3d 460, 464 (Colo. App. 2005) (“[We]
cannot correct an error pursuant to [plain error review] unless the
error is clear under current law.”) (citation omitted). However, the
inadmissibility of expert testimony on the general characteristics of
child sexual assault victims that does not relate to an issue other
than credibility is an issue that has now been decided by a division
of this court.
¶ 43 The second reason the admission of the expert’s testimony in
this case was not plain error is that the record does not “reveal[] a
reasonable possibility that the error contributed to [Relaford’s]
conviction[s].” Weinreich, 119 P.3d at 1078. A reviewing court
19
“must evaluate [an error] in light of the entire record below” to
determine its effect on the verdict and the trial. People v. Eppens,
979 P.2d 14, 18 (Colo. 1999). Whether the erroneous admission of
testimony that a child victim was credible is plain error “turns to a
considerable extent on both the strength and breadth of the
properly admitted evidence, the extent and significance of the
improper evidence or testimony, and the reliance, if any, of the
prosecution in closing arguments on the improper evidence.”
People v. Cook, 197 P.3d 269, 276 (Colo. App. 2008).
¶ 44 Cases in which this type of error was held reversible include
those in which “there was no physical evidence of, or third-party
eyewitness testimony to, the alleged sexual assaults.” Koon, 724
P.2d at 1370-71; see also Snook, 745 P.2d at 649; Cernazanu, ¶ 27;
Cook, 197 P.3d at 276.
¶ 45 Conversely, an important factor that “mitigate[s] the potential
power” of an expert’s improper opinion of a child victim’s veracity is
that other evidence corroborates the child victim’s allegations.
Eppens, 979 P.2d at 18-19. Indeed, “the major factor [in
determining whether an error was substantial] is the quantum and
20
quality of other and independent corroborating evidence of guilt.”
Cook, 197 P.3d at 277.
¶ 46 For instance, in People v. Gaffney, 769 P.2d 1081, 1087-89
(Colo. 1989), the supreme court held harmless the admission of
testimony by a doctor that the child victim’s “history,” which
included his statement that the defendant sexually assaulted him,
was “very believable.” The supreme court explained that “of
significance is the fact that [the victim’s] statement to [the doctor]
about the sexual assault was not without corroboration,” which
included the victim’s testimony, the doctor’s testimony that the
results of the physical examination of the victim were consistent
with the victim’s description of the sexual assault, and the victim’s
mother’s and the investigating police officer’s testimony about the
victim’s statements to them. Id. at 1089.
¶ 47 Similarly, in People v. Gillispie, 767 P.2d 778, 780 (Colo. App.
1988), the admission of testimony by an expert that she believed
the child victim’s statement that she had been sexually abused was
held harmless by a division of this court in part because “[t]he child
victim described the assaults to four different people, each
21
description was consistent with the others, and medical evidence
corroborated her detailed explanations.”
¶ 48 Here, although the prosecutor relied on the therapist’s
improper fabrication testimony during rebuttal closing, most of the
prosecutor’s initial and rebuttal closing arguments focused on other
evidence and the other parts of the therapist’s testimony that were
“properly received under CRE 702 to aid the jury in understanding
the typicality of reactions by [children] who have been subjected to
sexual abuse.” Morrison, 985 P.2d at 4-6. The victims also both
provided detailed testimony about the assaults and were cross-
examined by defense counsel, thus “providing the jury with a full
opportunity to judge [their] credibility in light of [their] demeanor.”
Eppens, 979 P.2d at 18-19. And the “jury was properly instructed
as to how to evaluate expert testimony and . . . the general
credibility . . . of witnesses.” Tevlin v. People, 715 P.2d 338, 339-40,
342 (Colo. 1986).
¶ 49 While the credibility of O.S. and M.D. was undeniably a
central focus at trial, there was substantial evidence, perhaps even
overwhelming evidence, corroborating the victims’ statements, such
as the nurse’s testimony that her physical examination of O.S.
22
showed injury consistent with sexual assault, the DNA evidence
from the sex toys, and the details of the assaults that the victims
provided that matched the evidence and the location of the evidence
found in Relaford’s home.
¶ 50 Moreover, the victims had very similar accounts of how and
where Relaford sexually assaulted them, and O.S. testified that he
had seen Relaford sexually assault M.D. The victims’ testimony,
their forensic interview statements, and the testimony of other
people to whom they had described the assaults — the detective,
their mothers, and the nurses — showed that each victim’s account
was mostly the same in each statement. And the statements of
Relaford that were admitted tended to indicate consciousness of
guilt.
¶ 51 Under all of these circumstances, we conclude that the
admission of the therapist’s testimony on fabrication did not “so
undermine[] the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
Wittrein, 221 P.3d at 1082 (citation omitted). Thus, there was no
plain error, and reversal is not required.
23
III. Sex Toys and Pornography
A. Additional Facts
¶ 52 Over defense counsel’s objection, the trial court granted the
prosecution’s pretrial motion to admit as res gestae all of the sex
toys and pornographic videos and magazines found during the
search of Relaford’s home.
¶ 53 At trial, numerous sex toys and accessories, and pictures of
the items, were admitted into evidence, as was the detective’s
testimony about finding each item during the search of Relaford’s
home. The items admitted included at least three (and maybe four,
the record is unclear) sex toys that O.S. identified in his testimony
as those that Relaford had used when he sexually assaulted him.
The sex toy that M.D. said Relaford had used on her and given to
her was also admitted. There were other sex toys and accessories
admitted, however, that were not identified or discussed by either
victim.
¶ 54 Also admitted were eight pornographic VHS videos, thirty-
three pornographic DVD videos, twenty-four pornographic
magazines, and photographs of the items. The detective’s testimony
about these items included that although M.D. and O.S. had told
24
her that the videos they saw with Relaford had adults, teens, and
children in them, the police did not find any illegal child
pornography. The detective testified, however, that many of the
videos found included “school-age dressed younger small-framed
individuals that looked younger” (and one video was entitled,
“Barely Legal Boot Camp Teens in Training”). The detective further
testified that one of the videos matched a description M.D. had
provided about watching a pornographic video that looked
“cartoonish.”
¶ 55 During closing argument, the prosecutor discussed the sex
toys that the victims had identified and the results of the DNA
testing and argued that this evidence corroborated the victims’
testimony. The prosecutor also emphasized that the sex toys and
pornography were found in locations consistent with the victims’
descriptions.
¶ 56 In his closing argument, defense counsel essentially argued
that the prosecution had introduced all of the sex toys and
pornography to try to convince the jury that Relaford was a bad
person and a “sexual molester.” In rebuttal closing argument, the
prosecutor expressly disclaimed such a purpose. The prosecutor
25
stated that it would be inappropriate for the jury to find Relaford
guilty of sexual assault just because he had sex toys and
pornography; rather, the prosecution had introduced the evidence
because it corroborated the victims’ disclosures and to establish the
thoroughness of the police investigation.
B. Law and Application
¶ 57 Relaford concedes that the admission of evidence regarding
the sex toys the children identified was proper, but he argues that
the trial court erred in admitting evidence of the other sex toys and
the pornography because it was irrelevant and constituted
impermissible bad acts or character evidence. We agree that some
of this evidence probably should not have been admitted, but we
conclude that any error in this respect was harmless.
¶ 58 We review the trial court’s decision to admit the evidence for
an abuse of discretion. See People v. Perry, 68 P.3d 472, 475 (Colo.
App. 2002). Because Relaford objected to the admission of the
evidence, we review for harmless error. See Yusem v. People, 210
P.3d 458, 463 (Colo. 2009).
¶ 59 “Relevancy is a threshold standard which all evidentiary
offerings must meet.” Vialpando v. People, 727 P.2d 1090, 1094
26
(Colo. 1986). Evidence that is irrelevant — evidence that does not
have any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence — is
inadmissible at trial. CRE 401, 402. However, even relevant
evidence may be excluded under CRE 403 “if its probative value is
substantially outweighed by the danger of unfair prejudice.”
¶ 60 Evidence may also be excluded under CRE 404(b), which
prohibits the admission of “other crimes, wrongs, or acts . . . to
prove the character of a person in order to show that he acted in
conformity therewith.” If evidence of other acts is offered only to
show a defendant’s bad character and that he “acted in conformity
therewith” (often described as propensity evidence), the evidence
will always be inadmissible. Masters v. People, 58 P.3d 979, 995
(Colo. 2002).
¶ 61 CRE 404(b) generally governs evidence of a defendant’s other
acts that are extrinsic to the events charged. People v. Gee, 2015
COA 151, ¶ 27. Res gestae evidence, on the other hand, is
“[e]vidence of other offenses or acts that is not extrinsic to the
offense charged, but rather, is part of the criminal episode or
27
transaction with which the defendant is charged.” People v.
Quintana, 882 P.2d 1366, 1373 (Colo. 1994). Thus, while “CRE
404(b) evidence is independent from the charged offense, res gestae
evidence is linked to the offense.” Id. at 1373 n.12. Res gestae
evidence is admissible so long as it is relevant and its probative
value is not substantially outweighed by the danger of unfair
prejudice. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.
1990).
¶ 62 The sex toys identified by the victims were plainly relevant and
admissible as direct evidence that Relaford had committed the
crimes charged. Similarly, because pornographic magazines and
videos were described by the victims and were found where the
victims said that they had seen them, at least some of the
pornography was properly admitted to corroborate the victims’
statements. See Aldrich, 849 P.2d at 829 (concluding that the trial
court did not abuse its discretion in admitting pornographic
magazines found in the defendant’s home under very similar
circumstances).
¶ 63 Because this evidence was directly relevant, we do not need to
consider the trial court’s conclusion that it was admissible as res
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gestae. We may affirm a trial court’s ruling on grounds different
from those upon which it relied, as long as they are supported by
the record. People v. Chase, 2013 COA 27, ¶ 17. “Res gestae is a
theory of relevance which recognizes that certain evidence is
relevant because of its unique relationship to the charged crime,”
and thus, “where . . . evidence is admissible under general rules of
relevancy,” there is “no need to consider an alternative theory of
relevance, such as res gestae.” People v. Greenlee, 200 P.3d 363,
368 (Colo. 2009); see also Gee, ¶ 34.
¶ 64 Similarly, evidence of the sex toys described in the victims’
statements and at least some of the pornography was not prohibited
by CRE 404(b) because it did not “involve[] a separate and distinct
episode wholly independent from the offense charged,” Quintana,
882 P.2d at 1372, and its relevance did “not depend on an
impermissible inference about [Relaford’s] character,” Greenlee, 200
P.3d at 368; see also People v. Munoz, 240 P.3d 311, 320-21 (Colo.
App. 2009).
¶ 65 Nevertheless, it is difficult for us to discern the relevance of the
evidence of the sex toys and accessories not identified by the
victims or not found in a location they described. Likewise,
29
although some of the pornography was admissible to corroborate
the victims’ statements, not every pornographic video and magazine
found was necessarily relevant for this purpose. And even if all the
pornography was somehow relevant, the “major function [of CRE
403] is . . . excluding matters of scant or cumulative probative force,
dragged in by the heels for the sake of its prejudicial effect.”
Masters, 58 P.3d at 1001 (citation omitted).
¶ 66 However, even if we were to conclude that some of the sex toys
and pornography were irrelevant or their admission was prohibited
by CRE 403 or CRE 404(b), we would not reverse on this basis.
“Even when a trial court may have abused its discretion in
admitting certain evidence, reversal is not required if the error was
harmless . . . .” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006).
“If a reviewing court can say with fair assurance that, in light of the
entire record of the trial, the error did not substantially influence
the verdict or impair the fairness of the trial, the error may properly
be deemed harmless.” People v. Stewart, 55 P.3d 107, 124 (Colo.
2002) (citation omitted). Thus, a defendant is only “entitled to
reversal if there is ‘a reasonable probability that the error
30
contributed to the defendant’s conviction.’” Yusem, 210 P.3d at 469
(citation omitted).
¶ 67 There was no such reasonable probability here, especially
considering that some of the sex toys and pornography were
properly admitted, and the prosecutor did not argue — and in fact
explicitly disclaimed — that the jury should use the sex toys and
pornography as propensity evidence. Moreoever, as discussed
above in Part II of the opinion, the prosecution presented a
substantial, and maybe overwhelming, amount of other evidence
that showed Relaford’s guilt. Cf. Summitt, 132 P.3d at 327 (holding
that if properly admitted evidence overwhelmingly shows guilt, there
is no reasonable probability that an error contributed to the
conviction).
¶ 68 Considering the entire record of the trial and that the jury
properly heard and viewed evidence of some of the sex toys and
pornography, we can say with fair assurance that evidence of the
other sex toys and pornography did not substantially influence the
verdict or affect the fairness of the trial. See Masters, 58 P.3d at
1002-03.
31
¶ 69 Accordingly, even if the admission of evidence of certain sex
toys and some of the pornography found at Relaford’s home was
error, reversal is not required.
IV. SOLSA
¶ 70 Relaford argues that SOLSA, § 18-1.3-1004, C.R.S. 2015, is
facially unconstitutional.2 He contends that SOLSA violates an
offender’s procedural and substantive due process and equal
protection rights, the prohibition against cruel and unusual
punishment, and the separation of powers doctrine.
¶ 71 Relaford did not raise these constitutional challenges at trial,
and we thus could decline to review them. See People v. DeWitt,
275 P.3d 728, 730 (Colo. App. 2011). However, even if we were to
exercise our discretion to review Relaford’s constitutional claims, we
would conclude that he is not entitled to relief.
¶ 72 As Relaford concedes, several divisions of this court have
previously considered challenges to the constitutionality of SOLSA,
2 Relaford also asserts that SOLSA is unconstitutional as applied.
However, this assertion is not supported by any analysis or
supporting authority. We do not consider bare or conclusory
assertions presented without argument or development. See People
v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011).
32
and all have concluded that it is constitutional. See People v.
Collins, 250 P.3d 668, 679 (Colo. App. 2010) (listing cases).
Relaford’s arguments are identical to those considered and rejected
in those cases. See, e.g., People v. Dash, 104 P.3d 286, 290-93
(Colo. App. 2004); People v. Oglethorpe, 87 P.3d 129, 133-36 (Colo.
App. 2003); People v. Strean, 74 P.3d 387, 393-95 (Colo. App.
2002).
¶ 73 Relaford has not provided any compelling reason for us to
reconsider or depart from those decisions, and we reject his
contentions for the reasons stated in those cases. See People v.
Villa, 240 P.3d 343, 359 (Colo. App. 2009).
V. Conclusion
¶ 74 The judgment and sentence are affirmed.
JUDGE ROMÁN and JUDGE PLANK concur.
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