v. Daley , 2021 COA 85 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 24, 2021
2021COA85
No. 17CA1328, People v. Daley — Evidence — Witnesses —
Opinion as to Truthfulness
A division of the court of appeals holds that the trial court
erred by allowing the prosecutor to ask a police detective whether
the victim’s in-court testimony was consistent with her out-of-court
statements. The division concludes, however, that this error was
harmless. Because it rejects the defendant’s other claims of error,
the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2021COA85
Court of Appeals No. 17CA1328
Boulder County District Court No. 15CR1974
Honorable Maria E. Berkenkotter, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Carri Lyn Daley,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE BERGER
Richman and Welling, JJ., concur
Announced June 24, 2021
Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Carri Lyn Daley, appeals her convictions for one
count of sexual assault on a child by one in a position of trust and
as part of a pattern of sexual abuse, four counts of aggravated
incest, one count of internet sexual exploitation of a child, four
counts of sexual exploitation of a child, and one count of
contributing to the delinquency of a minor.
¶2 One of the many issues raised by Daley is whether it was
permissible for a police detective to testify that the victim’s
testimony was consistent with her out-of-court statements. We
hold in Part II.D.1, infra, that the court erred by allowing this
testimony because it constituted an opinion on the truthfulness of
the victim. We conclude, however, that this error was harmless.
Because we reject Daley’s other claims of error, we affirm her
convictions.
I. Relevant Facts and Procedural History
¶3 At trial, the prosecution presented evidence from which the
jury could find the following facts.
A. Abuse Relating to Communication With “the British Guy”
¶4 When the victim was fourteen years old, Daley (the victim’s
mother) began exchanging online messages with a man she called
1
“the British Guy.” He messaged Daley that he had the sexual
fantasy of having a threesome with a mother and daughter and that
he would travel to Colorado to meet them.
¶5 The victim testified that Daley sent sexually explicit photos of
the victim to the British Guy. The photos included Daley and the
victim kissing, touching each other’s breasts, and using vibrators
on each other’s genitals.
¶6 Daley and the victim discussed whether the victim should lose
her virginity to the British Guy. The victim told Daley that she
wanted to have sex with someone else first. With Daley’s help, the
victim met a twenty-one-year-old man online who agreed to have
sex with her. The victim testified that she had sex with the man
and discussed it with Daley. Ultimately, the British Guy never
came to Colorado.
B. Abuse Relating to “Daddy”
¶7 The victim testified that Daley kissed her, touched her breasts,
and touched her vagina after Daley had “phone sex” with someone
Daley had met online. The victim testified that Daley referred to
this person as “Daddy.”
2
C. Abuse Relating to Nick Helton
¶8 Daley traveled to California to visit a man she had met online.
Daley texted the victim about her sexual encounters and bought the
victim a vibrator. On this trip, Daley also met Nick Helton. Daley
texted the victim about having sex with Helton.
¶9 Daley continued communicating with Helton on an instant
messaging application when she returned to Colorado. Daley,
Helton, and the victim also communicated in a group chat on the
same application. Daley and the victim sent messages back and
forth, which Helton could see, about having group sex with Helton.
In a private message to Helton, Daley said, “[s]o have we teased you
enough that you’re just ready to throw [u]s down and fuck us
both?”
¶ 10 Helton flew to Colorado. While there, he had group sex with
Daley and the victim, who was seventeen years old at the time. The
victim testified that she tried to leave when the other two removed
their clothes, but Helton told her she had to stay. The victim
testified that she touched Daley’s breasts, Daley “tried” to touch the
victim’s breasts, and Helton had sex with the victim.
3
¶ 11 The next day, Helton returned to California. He and Daley
messaged regarding their concern of how the victim was doing.
D. The Victim’s Outcry
¶ 12 Daley and Helton continued their relationship over the next
few months. At some point, Daley again traveled to California to
see him.
¶ 13 While Daley was gone, the victim told two friends about some
of the abuse. The friends were shocked, which confused the victim,
who testified that she thought Daley’s sexual behavior was normal.
The victim told the mother of one of the friends, who took her to the
police.
¶ 14 A social worker called Daley as she was preparing to fly back
from California and told her that the victim had been taken into
custody for her safety. Daley told Helton, and the pair exchanged
concerned text messages. Helton suggested that Daley call a
neighbor to see if she could learn anything. Daley responded,
“[s]ooooooo not a good idea honey until I find out if this has
anything to do with you!!!” Helton replied, “I’m beyond super
fucked if it does.” The police arrested Daley when she landed in
4
Colorado. Helton sent several messages “freaking out” about why
Daley stopped responding.
E. Charges and Convictions
¶ 15 The prosecution charged Daley with thirteen counts: sexual
assault on a child by one in a position of trust, including a pattern
of sexual abuse, § 18-3-405.3(1), (2), C.R.S. 2020; six counts of
aggravated incest, § 18-6-302(1)(a), C.R.S. 2020; internet sexual
exploitation of a child, § 18-3-405.4(1), C.R.S. 2020; four counts of
sexual exploitation of a child, § 18-6-403, C.R.S. 2020; and
contributing to the delinquency of a minor, § 18-6-701, C.R.S.
2020.
¶ 16 The jury found Daley guilty as charged, except that it
acquitted her of the two counts of aggravated incest pertaining to
the incident with “Daddy.” While the jury found that Daley
committed a pattern of sexual abuse against the victim, consistent
with its not-guilty verdict on the “Daddy” counts, the jury did not
find that Daley “committed sexual contact, or penetration, or
intrusion of victim relating to ‘Daddy’” as part of that pattern.
II. Analysis
¶ 17 Daley contends on appeal that the trial court
5
• violated her right to be present at trial;
• violated her right to an impartial and competent jury;
• erred by refusing to instruct the jury on the reliability of
child hearsay;
• erred by allowing the prosecutor to ask a police detective
whether the victim’s testimony at trial was consistent
with her prior statements;
• erred by admitting an unavailable witness’s statements
against interest;
• erred by admitting res gestae evidence about the sexual
environment in which Daley raised the victim;
• erred by excluding testimony under the rape shield
statute; and
• violated her right to a fair trial through cumulative error.
We address each argument in turn.
A. Right to be Present at Trial
¶ 18 Daley argues that the trial court violated her constitutional
right to be present by proceeding with trial after she was
hospitalized for an apparent suicide attempt. This argument is
preserved.
6
¶ 19 This argument has two sub-issues: first, whether Daley waived
her right to be present by her mid-trial voluntary absence; and
second, if there was waiver, whether the court abused its discretion
by proceeding with trial in her absence.
1. Additional Background
¶ 20 Daley was not in custody when the trial began. She attended
the first four days of trial. On the fifth morning of trial, a Monday,
counsel for the parties learned that Daley had been hospitalized for
a drug overdose.
¶ 21 First responders discovered three pill bottles on Daley’s
nightstand, along with an empty beer bottle and a glass that
contained residue of crushed pills. One pill bottle was for
hydrocodone (an artificial opiate) prescribed to Daley, another for
hydrocodone prescribed to the victim, and a third for tramadol
(another artificial opiate) prescribed to a dog. There was also a note
on the nightstand that said, “[the victim] was right. This world
doesn’t need another me.”
¶ 22 Daley was taken to a hospital. She was largely unresponsive
to both nasal and intravenous Narcan, a drug typically
administered to prevent or mitigate an opioid overdose. Doctors put
7
Daley on a Narcan drip, but she continued to fade in and out of
consciousness. Doctors thought that she may need to be taken to
the Intensive Care Unit. (She was eventually taken there that
afternoon.) At the time, the parties understood that Daley would
not be medically cleared and available for a mental health
evaluation until late Tuesday or Wednesday, after which a
psychiatrist would determine whether a further mental health hold
was necessary.
¶ 23 The prosecution argued that the circumstances established
that Daley was voluntarily absent from trial and that the trial
should proceed. The court agreed, finding that “the defendant has
made herself voluntarily absent by virtue of a mid-trial suicide
attempt.” The court then ruled that the trial would proceed without
her.
¶ 24 When trial resumed, the court instructed the jury, “Ms. Daley
is not here. You are not to draw any adverse inference from her
absence.” Daley was absent for the remainder of trial.
8
2. Law
¶ 25 A defendant has a constitutional right to attend her own trial.
U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; People v.
Janis, 2018 CO 89, ¶ 16.
¶ 26 We review de novo the ultimate question “[w]hether a trial
court violated a defendant’s constitutional right to be present at
trial.” Janis, ¶ 14. Whether this right was relinquished by an
effective waiver presents “a mixed question of fact and law.” People
v. Price, 240 P.3d 557, 560 (Colo. App. 2010). We review factual
findings for clear error. People v. Beauvais, 2017 CO 34, ¶ 22;
United States v. Edwards, 303 F.3d 606, 627 (5th Cir. 2002)
(reviewing factual findings about whether the defendant was
voluntarily absent for clear error).
¶ 27 A waiver of the right to be present at trial “is valid only when
the record as a whole demonstrates that the waiver was knowing,
intelligent, and voluntary.” Janis, ¶ 26. The prosecution may
satisfy its burden of proving waiver with “statements of counsel and
circumstantial evidence.” Id.¶ 28 The preferred method of waiver is by colloquy with the
defendant at a hearing, but “a defendant may waive his or her right
9
to be present by his or her actions, including voluntary absence,
after the trial has been commenced in his or her presence.” Price,
240 P.3d at 560 (citing Crim. P. 43(b)). “An absence is voluntary if
the defendant knows that the proceedings are taking place and does
not attend.” People v. Stephenson, 165 P.3d 860, 869 (Colo. App.
2007) (citing Crosby v. United States, 506 U.S. 255 (1993)).
¶ 29 Further, “a defendant’s absence may be deemed voluntary
where the record establishes that he or she created the medical
necessity in order to effect his or her absence from trial.” Price, 240
P.3d at 560-61. Determining whether a defendant was voluntarily
absent mid-trial “requires a fact-specific inquiry into the type of
medical condition and circumstances surrounding his or her
absence, including an inquiry into the defendant’s conduct and
statements.” Id.¶ 30 In Price, the defendant attempted suicide mid-trial by cutting
his wrists and throat, requiring hospitalization. Id. at 561. The
defendant left a note that said, “I cannot live with the crap trial that
I am going through in Douglas County. It’s all lies and coached by
the D.A.’s office.” Id. In holding that the defendant was voluntarily
absent, a division of this court reasoned that he “was aware his trial
10
was taking place by attending the first day. His suicide note . . .
reflected both that he understood the proceedings against him and
that he purposefully determined to absent himself from the trial.”
Id.¶ 31 Even after a defendant waives her right to be present, the
court has discretion to proceed with the trial or delay it. People v.
Trefethen, 751 P.2d 657, 658 (Colo. App. 1987); see also Crim. P.
43(b) (“The trial court in its discretion may complete the trial . . . .”).
We therefore review the court’s decision to proceed with trial for an
abuse of discretion. Trefethen, 751 P.2d at 658. A court abuses its
discretion if its ruling is “manifestly arbitrary, unreasonable, or
unfair, or if it misapplies the law.” AA Wholesale Storage, LLC v.
Swinyard, 2021 COA 46, ¶ 32. Judicial discretion “means that the
court is not bound to decide the issue one way or another, but has
the power to choose between two or more courses of action and is
not bound in all cases to choose one over the other.” Gibbons v.
People, 2014 CO 67, ¶ 42.
3. Application
¶ 32 Like the defendant in Price, Daley voluntarily absented herself
from trial when she attempted suicide. See 240 P.3d at 560-61.
11
Daley attended the first four days of trial, so she was clearly aware
that it was taking place. Id. Her note, the pills, and the
accompanying medical emergency demonstrated that she intended
to absent herself from trial.
¶ 33 Daley argues that the prosecution did not clearly establish
that she attempted suicide, but the record amply supports the trial
court’s finding that she did. Daley ingested narcotics from three
separate bottles, two of which were not prescribed to her, and one
of which was for a dog. This, combined with Daley’s note, supports
the trial court’s finding and was a sufficient basis for rejecting
Daley’s counsel’s assertion that she may have only accidentally
overdosed while taking the pills to fall asleep. For the same
reasons, we reject Daley’s attempt to distinguish Price on the
ground that the defendant’s conduct in that case was more clearly a
suicide attempt.
¶ 34 Daley also argues that self-inflicted medical absences are not
“per se” voluntary absences. We agree that determining whether a
defendant was voluntarily absent depends on “a fact-specific
inquiry into the circumstances surrounding the absence.” Id. at
12
561. Here, as discussed, the circumstances of Daley’s absence
demonstrate that it was voluntary.
¶ 35 Next, Daley argues that there was no evidence that her
voluntary absence was intended “to frustrate the progress of the
trial.” But that is not the relevant inquiry. Rather, a court must
find that “she created the medical necessity in order to effect . . .
her absence from trial.” Id. at 560-61. As discussed, the trial court
found, with record support, that Daley created a medical necessity
to be absent from trial.
¶ 36 Having concluded that Daley waived her right to be present,
we turn to whether the court abused its discretion by allowing the
trial to continue.
¶ 37 Daley argues that the court erred by not meaningfully
distinguishing between its voluntariness determination and its
decision to proceed with trial. The record belies this argument. The
court gave the lawyers time to determine why Daley was absent.
The court listened to their information, read case law, and
determined that Daley was voluntarily absent. Then, the court
determined that the trial should proceed in her absence.
13
¶ 38 Daley also argues that the court erred by not employing a
balancing test used by federal courts. See United States v. Latham,
874 F.2d 852, 859-60 (1st Cir. 1989). Specifically, Daley argues
that the court should have weighed the public interest of proceeding
with trial against her interest in attending the trial. No Colorado
court has held that this federal balancing test is required. But even
if it is required, the trial court sufficiently considered the relevant
factors.
¶ 39 The court recognized that Daley was not responding to
Narcan, and that she was not expected to be released from the
hospital for at least two days, if not longer.1 The court referred to
its concerns about the tight trial schedule that it had articulated
days before Daley’s absence. Additionally, the court heard both
parties’ understandings of Daley’s condition and the events that led
to her hospitalization. The court knew that Daley had been present
during the first four days of trial and that she had been actively
participating by passing notes to her lawyer.
1 Ultimately, Daley was released from the hospital four days later,
the day the jury returned its verdict. The record does not reveal
whether she was fit to return to the courtroom even then.
14
¶ 40 The court’s careful consideration of and allotment of time to
this issue convinces us that even if the court did not explicitly
consider every factor articulated in the federal balancing test,
assuming it was required to do so, it impliedly considered each
factor. See People v. McIntyre, 789 P.2d 1108, 1110-11 (Colo. 1990)
(upholding trial court’s ruling based on its implied findings).
¶ 41 For all these reasons, the court did not violate Daley’s
constitutional right to be present at trial.
B. Allegedly Sleeping Jurors
¶ 42 After the verdicts were returned by the jury, Daley moved for a
new trial on the basis that “multiple jurors were witnessed sleeping”
during trial. Daley contends that the trial court erred by denying
her motion.
¶ 43 The parties agree that we review a trial court’s ruling on a
motion for a new trial for an abuse of discretion. Rains v. Barber,
2018 CO 61, ¶ 8.
1. Additional Background
¶ 44 During trial, the court and counsel for both parties repeatedly
addressed concerns about three members of the jury who appeared
to be drowsy or possibly asleep. Unless otherwise specified, the
15
following facts derive from conversations between the parties and
the court at multiple bench conferences.
¶ 45 Juror H was one juror about whom the parties and the court
expressed concern. The court noticed that Juror H looked tired
during the trial. Later, the court on its own motion questioned
Juror H outside the presence of the other jurors. The juror stated
that she had not fallen asleep. She said, “My contacts are killing
me today, so I just kind of listen and open [my eyes] when I see
something new . . . . I’ve been putting drops in.” Defense counsel
moved to replace Juror H with an alternate. Based on the juror’s
comments, the court denied the motion.
¶ 46 Another potentially problematic juror was Juror D. The court
noticed that Juror D listened to parts of opening statements with
his eyes closed. Later during the trial, the court again noted that
Juror D would listen with his eyes closed, often during difficult
testimony. The prosecutor stated that Juror D often held his head
down because he was taking notes in his lap. No one alleged, nor
did the court find, that Juror D ever fell asleep.
¶ 47 Juror M was the third juror whom the court and the parties
discussed. Defense counsel told the court that Juror M had fallen
16
asleep during opening statements. The court disagreed. The court
stated that it was “discretely [sic] watch[ing] what’s happening in
the jury box” and that “[i]t wasn’t my perception that anybody fell
asleep.” Later, the prosecutor stated that although she had not
seen him sleeping, she “felt like [she] heard him . . . potentially
snoring.” The prosecutor went on to say that, “in all fairness, he’s a
very loud breather as well, so it’s hard to tell which one it is.” The
court stated that the juror displayed visible signs of listening and
being awake even when his eyes were closed. The court also noted
that defense counsel had not observed “anything that was
unconstitutional or other dimension in terms of what may be
happening with” Juror M. Later that day, the prosecutor and the
court reiterated their impressions that Juror M was not snoring,
but that he was just a heavy breather (“It’s like a snort almost,” said
the prosecutor).
¶ 48 The parties and the court continued to keep a watchful eye on
Juror M. At some point, defense counsel stated that he had again
seen Juror M “do[z]ing in and out of sleep,” so the court questioned
Juror M outside the presence of the other jurors. He said that
sitting down all day was difficult for him, but he was “do[ing] stuff
17
to keep [himself] awake,” and that he had heard the evidence
presented. The court noted that Juror M would lean back and
forth, tap his feet, and take his shoes on and off during the
instances when he closed his eyes. The court reasoned that those
activities indicated that Juror M was staying awake. Defense
counsel did not move to replace Juror M.
¶ 49 The court took many proactive steps to prevent jurors from
falling asleep. Frequently, the court had the bailiff bring the jurors
coffee and tea. The court gave multiple stretch breaks for the jury
each day; whenever counsel requested a break, it was granted. The
court advised the jurors that if they listened with their eyes closed,
they needed to take notes or do something to demonstrate that they
were awake. And the court took notes on jurors who had their eyes
closed, observing and recording signs that the jurors were still
awake.
¶ 50 A few weeks after trial, both alternate jurors emailed the court
to express their concerns about jurors sleeping through trial.
Defense counsel filed a motion for a new trial based on the emails.
¶ 51 The court denied the motion, citing the extensive record that
the court, the prosecutor, and defense counsel had made
18
throughout trial. While they were all aware of and attuned to the
possibility of sleeping jurors from the first day of trial, the court
found that no jurors actually fell asleep.
2. Preservation and Jurisdiction
¶ 52 We must first address the Attorney General’s argument that
the trial court lacked jurisdiction to rule on Daley’s motion because
it was untimely. Daley moved for a new trial twenty-four days after
the verdicts, and four days after receipt of the second alternate
juror’s email.
¶ 53 “A motion for a new trial based upon newly discovered
evidence shall be filed as soon after entry of judgment as the facts
supporting it become known to the defendant . . . .” Crim. P. 33(c).
“A motion for a new trial other than on the ground of newly
discovered evidence shall be filed within 14 days after verdict or
finding of guilt or within such additional time as the court may fix
during the 14-day period.” Id.¶ 54 Without explanation, the Attorney General asserts that the
alternate jurors’ emails did not constitute new evidence under the
rule. Therefore, the Attorney General argues that the fourteen-day
19
period applies, and that Daley’s failure to file in that period required
the court to deny the motion for lack of jurisdiction.
¶ 55 To support that argument, the Attorney General cites People
ex rel. Iuppa v. District Court, 731 P.2d 723 (Colo. 1987). That case
is inapplicable. In Iuppa, the supreme court held that failure to file
a Crim. P. 33 motion within a time period prescribed by the trial
court is a jurisdictional bar when the court orders the defendant to
file such a motion. Id. at 724. That did not happen here.
¶ 56 Instead, we apply the principle that in criminal cases, a
“timely motion for a new trial is not jurisdictional in the sense that
without it the court would lack authority to adjudicate the subject
matter.” People v. Moore, 193 Colo. 81, 83, 562 P.2d 749, 751
(1977); see also People v. Clark, 2015 COA 44, ¶ 188 (distinguishing
Iuppa and recognizing that “the filing requirements of Crim. P. 33
were tempered by Crim. P. 45”).
20
¶ 57 We conclude the trial court had jurisdiction to adjudicate
Daley’s motion. We have appellate jurisdiction to review the trial
court’s order on the merits.2
3. Law
¶ 58 “Jury misconduct that materially affects the substantial rights
of a party so as to prevent a fair and impartial trial may serve as
grounds for a new trial.” People v. King, 121 P.3d 234, 241 (Colo.
App. 2005). A juror sleeping during trial may constitute juror
misconduct that materially affects the defendant’s rights. People v.
Evans, 710 P.2d 1167, 1168 (Colo. App. 1985).
¶ 59 In Hanes v. People, the supreme court addressed a trial court’s
denial of a motion to dismiss a juror who was allegedly sleeping.
198 Colo. 31, 34, 598 P.2d 131, 133 (1979). The supreme court
reasoned that the trial court was aware of the possibility that the
juror was sleeping and had watched the juror from “an advantaged
position” on the bench “to determine whether that possibility was
true.” Id. The trial court questioned the juror and found that he
2 Because we conclude that the trial court did not err by denying
the motion on the merits, we need not and do not address any of
the other preservation issues raised by the Attorney General.
21
was attentive. Id. The supreme court held that the trial court did
not abuse its discretion by relying on its own observations in
denying the motion to dismiss. Id.
4. Application
¶ 60 The record supports the trial court’s finding that no jurors
slept during trial. The court’s observations throughout trial, as well
the observations stated in its order, demonstrate that the court was
carefully monitoring the jury. When the court was concerned
whether a particular juror had fallen asleep (Juror H, Juror M), it
questioned the juror on the record.
¶ 61 The court and the parties made detailed records of juror
attentiveness, including Juror H’s habit of closing her eyes but still
taking notes, Juror M’s habit of tapping his feet and taking his
shoes on and off, and Juror D’s habit of closing his eyes and
grimacing during difficult testimony. Additionally, the record
supports the trial court’s finding that Juror M was not snoring but
merely breathing heavily.
¶ 62 Given this extensive record, the court acted within its
discretion by relying on its own observations, instead of the
observations of the two alternate jurors. Like the supreme court in
22
Hanes, we defer to the trial court’s observations because it had a
clearer vantage point than the alternates from which to view the
jurors in question. 198 Colo. at 34, 598 P.2d at 133. The court
could look directly at the jurors’ faces and observe their body
language from the front; the alternate jurors sat in the back row
and could not see their peers’ faces.
¶ 63 This case is nothing like People v. Evans, on which Daley
relies. There, the trial court knew that a juror was sleeping during
closing argument but did nothing about it. 710 P.2d at 1168. A
division of this court reversed because the trial court did not
replace the juror with an alternate, admonish the juror, or call for a
recess. But here, as discussed, the court consistently and diligently
took action.
¶ 64 Daley argues that the court erred by only discussing two
jurors in its order (Jurors M and H). Not so. Daley’s motion alleged
that jurors were sleeping but did not specify which jurors. No one
alleged that Juror D, or any other specific jurors, had fallen asleep.
That being the case, the court acted within its discretion by
addressing only those jurors whom defense counsel had alleged
were sleeping during trial: Jurors M and H.
23
¶ 65 Daley argues that the alternate jurors’ emails, on which her
motion was based, discuss more than two sleeping jurors. This is
false. The first alternate’s email referenced “at least two jurors,”
and later in the email, “two jurors.” The second alternate’s email
referenced only “one juror.”
¶ 66 Undeterred, Daley argues that the court’s order only
addressed sleeping jurors, but that it did not address drowsy or
otherwise inattentive jurors. This is because the basis for Daley’s
motion for a new trial was that “multiple jurors were witnessed
sleeping.” (Emphasis added.) No other basis for a new trial was
presented to the trial court. Other bases therefore are not
preserved for our review. See Crim. P. 33(c) (motion for new trial
must allege with particularity the alleged defects and errors).
¶ 67 In any event, we conclude that the allegation of inattentive or
drowsy jurors in this case does not rise to the level of constitutional
juror misconduct. Everyone gets drowsy from time to time, and the
trial court took many remedial steps to address that reality in this
case, such as bringing the jurors coffee and tea and allowing for
breaks.
24
C. Refusal to Give the Child Hearsay Instruction
¶ 68 Daley argues that the trial court erred by refusing to instruct
the jury on the unreliability of child hearsay under section 13-25-
129, C.R.S. 2017.3 We reject this argument.
1. Child Hearsay Statute
¶ 69 Section 13-25-129(1) states that
[a]n out-of-court statement made by a child
. . . not otherwise admissible by a statute or
court rule which provides an exception to the
objection of hearsay, is admissible in evidence
in any criminal, delinquency, or civil
proceedings in which a child is a victim of an
unlawful sexual offense.
(Emphasis added.) “If a statement is admitted pursuant to this
section, the court shall” give a specific child hearsay instruction.
§ 13-25-129(2).
2. Additional Background
¶ 70 Before trial, the prosecution filed a “Notice of Intent to Admit
Child Hearsay Evidence,” which stated the prosecution’s “intent to
3 The child hearsay statute was amended in 2019. Though the
current and pre-amendment statutes, for the purposes of our
inquiry, are not materially different, we refer to the statute in effect
at the time of Daley’s trial for clarity and accuracy. See Ch. 42, sec.
1, § 13-25-129, 2019 Colo. Sess. Laws (S.B. 19-071 amended the
statute).
25
admit all of the disclosures by [the victim] regarding and describing
the sexual and physical acts which are the subject of this action.”
The notice stated further that the prosecution “in no way forfeit[ed]
or limit[ed] other avenues for the introduction of hearsay
statements.”
¶ 71 At a pretrial hearing, Daley stipulated “to the time[,] content[,]
and circumstances [of the victim’s hearsay statements] as being
reliable under the child hearsay statute.” But she “reserv[ed] the
right to object on relevancy grounds or other evidentiary grounds.”
¶ 72 At trial, Daley’s counsel extensively attempted to impeach the
victim through cross-examination about prior inconsistent
statements. In response, numerous prosecution witnesses testified
as to what the victim had told them. Daley identifies eight such
witnesses. Most of the testimony from these witnesses was given
without objection, with two exceptions.
¶ 73 First, Daley objected to one prosecution witness’s testimony
about what the victim had told her regarding a friend’s response to
the victim’s outcry. In response, the prosecutor argued, among
other things, that the testimony about what the victim said
constituted “prior consistent statements” that were admissible
26
“based on cross-examination from defense counsel.” The court
overruled Daley’s objection. Second, Daley objected to the
prosecutor’s question to a detective about the consistency of the
victim’s statements. The court again allowed the testimony as prior
consistent statements.
¶ 74 At the jury instruction conference, Daley asked the court to
give the statutory child hearsay instruction. The prosecutor stated,
“[T]he purpose of this instruction is if you were admitting
statements under the child hearsay [statute] and we have not done
that in this case.” The court agreed and refused the instruction.
3. No Evidence Was Admitted Under the Child Hearsay Statute
¶ 75 The court never ruled that any witness’s testimony was
admitted under the statute. In fact, there were no discussions
about admitting evidence under the statute at trial until the jury
instruction conference.
¶ 76 Daley claims that she was misled into believing that the
victim’s prior statements were admitted under the statute due to
the prosecution’s notice. Given this, she argues that she had no
reason to object to the testimony. This argument ignores the fact
that the prosecution explicitly stated in its notice that it “in no way
27
forfeit[ed] or limit[ed] other avenues for the introduction of hearsay
statements.” In response to the notice, Daley stated that she
reserved the right to object on “other evidentiary grounds.” Clearly,
both parties expressly contemplated that this evidence could be
admitted and objected to on other grounds.
¶ 77 More importantly, the child hearsay statute by its own terms
only applies to evidence “not otherwise admissible by a statute or
court rule which provides an exception to the objection of hearsay.”
§ 13-25-129(1), C.R.S. 2017. Except as analyzed below, Daley has
not asserted that the testimony was inadmissible as prior
consistent statements.4 The statute therefore did not apply to the
witnesses’ testimony about what the victim told them.
¶ 78 If Daley thought that the evidence was inadmissible on other
evidentiary grounds, she was required to object on those specific
grounds. See Am. Fam. Mut. Ins. Co. v. DeWitt, 216 P.3d 60, 66-67
(Colo. App. 2008) (relevance objection does not preserve a CRE 403
objection), aff’d, 218 P.3d 318 (Colo. 2009). If Daley was concerned
about the basis on which hearsay testimony was being admitted,
4Daley challenges the detective’s opinion regarding the consistency
of the victim’s statements, which we analyze next.
28
she should have clarified the matter on the record. Except for the
two instances identified above, Daley did none of this.
¶ 79 When Daley did object, the court overruled her objection and
admitted the testimony as prior consistent statements. She can
hardly now claim surprise that other unobjected-to evidence could
have been admitted for that purpose.
¶ 80 Because no testimony was admitted under the child hearsay
statute, the court did not err by refusing Daley’s tendered
instruction.
D. Testimony About the Consistency of the Victim’s Statements
1. The Court Erred
¶ 81 Next, Daley contends that the trial court erred by allowing the
prosecutor to ask a detective a series of questions about whether
the victim’s in-court testimony was consistent with her out-of-court
statements. Disagreeing with the analysis of another division of
this court, we agree with Daley.
a. Additional Facts
¶ 82 After Daley had extensively impeached the victim with prior
inconsistent statements, the prosecution called a police detective
who had observed the majority of the victim’s post-outcry
29
interviews. The prosecutor asked the detective, “Generally, when
[the victim’s] talking about the British [G]uy, for example, is her
testimony in the Blue Sky Bridge Interview generally consistent with
her testimony during this trial?”
¶ 83 Daley objected and argued at a bench conference that “[the
prosecutor] just had him state an opinion as to her truthfulness by
asking him if it was consistent. I ask that that question or his
response as it was made be stricken. It’s not permissible. That’s a
question for the jury to decide.” Daley argued further, “[W]e had six
days of trial testimony here where everyone had an opportunity to
talk about what was said and what wasn’t said, and it’s not proper
to then allow this man to summarize everything and say it was all
consistent.” The court overruled the objection and allowed the
following series of questions:
[Prosecutor]: Detective . . . , so we are talking
about the Blue Sky Bridge interview back in
November of 2015. When [the victim] is
speaking in the Blue Sky Bridge interview is
what she describing [sic], for example, when
she’s talking about the British [G]uy and
generally -- was that generally consistent with
the testimony that she gave during this trial?
[Detective]: Yes.
30
[Prosecutor]: When she’s talking about her
mother taking photos and videos of her,
penetrating her vagina, fondling her breasts
and kissing her, sending those pictures and
videos to the British [G]uy, is that all generally
consistent with what she had described?
[Detective]: Yes.
[Prosecutor]: When she described this time
period after the British [G]uy where her mom
would touch her breasts or grab her butt or
she would do the same to her mom, was that
generally consistent with what she described
in the Blue Sky Bridge interview?
[Detective]: Yes.
[Prosecutor]: Same goes for the incident that
she described, the Daddy incident where her
mom is masturbating on the phone with him
and rolls over and then they begin mutually
touching each other, penetrating the vagina,
kissing, fondling breasts, things like that, is
that generally consistent?
[Detective]: Yes.
[Prosecutor]: When she described the incident
where Nick [Helton] comes to town and a
threesome occurs and the sequence of events
that she described, is that all generally
consistent with how she described it in the
Blue Sky Bridge interview?
[Detective]: Yes.
31
¶ 84 The jury never heard the victim’s prior statements in the
interviews, only the detective’s opinion that those statements were
consistent with her trial testimony.
b. Law and Application
¶ 85 The Attorney General argues that the trial court did not err
because it merely allowed the prosecution to admit the victim’s
prior consistent statements. But that is not what the prosecution
did. It presented a police detective’s opinion that the victim’s prior
statements were consistent with her trial testimony. This is
materially different than admitting the statements themselves and
is problematic for at least two reasons.
¶ 86 First, the detective’s statement on the victim’s consistency was
nothing less than an opinion on the victim’s truthfulness in her
account of the material events. This was improper because “neither
lay nor expert witnesses may give opinion testimony that another
witness was telling the truth on a specific occasion.” People v.
Wittrein, 221 P.3d 1076, 1081 (Colo. 2009). This prohibition
includes indirect opinions on another witness’s credibility or
32
truthfulness.5 Venalonzo v. People, 2017 CO 9, ¶ 32. The Attorney
General has not explained, and we cannot discern, any other
probative purpose for the detective’s opinions. Out-of-state cases
addressing similar fact patterns support our conclusion. See People
v. Bobian, 2019 COA 183, ¶¶ 45-49 (Berger, J., specially
concurring) (collecting cases).
¶ 87 For example, the Kentucky Supreme Court has reasoned that
“testimony that the witness previously made statements that were
consistent with her trial testimony” was improper because “the
evidence is offered to prove that the declarant’s trial testimony is
truthful.” Dickerson v. Commonwealth, 174 S.W.3d 451, 472 (Ky.
2005).
¶ 88 Similarly, the South Carolina Supreme Court held that it was
error to introduce a forensic interviewer’s written reports in which
the interviewer stated that the children “provided details consistent
with the background information received from mother, the police
5 This prohibition extends, for example, to comments on a witness’s
sincerity, believability, or predisposition to fabricate allegations.
People v. Eppens, 979 P.2d 14, 17 (Colo. 1999) (sincerity); People v.
Gaffney, 769 P.2d 1081, 1088 (Colo. 1989) (believability); People v.
Snook, 745 P.2d 647, 649 (Colo. 1987) (predisposition to fabricate).
33
report, and the other two children.” State v. Jennings, 716 S.E.2d
91, 94 (S.C. 2011). The South Carolina Supreme Court concluded
that “[t]here is no other way to interpret the language used in the
reports other than to mean the forensic interviewer believed the
children were being truthful.” Id.¶ 89 We recognize that a division of this court has held differently,
but we disagree with its analysis. See Chavez v. Chavez, 2020 COA
70, ¶ 13 (we are not bound by prior divisions). In People v. West, a
detective testified that the timing of text messages between the
victim and the defendant was consistent with the victim’s
testimony. 2019 COA 131, ¶ 37. In distinguishing this testimony
from improper bolstering, the division reasoned that “the detective
said nothing about the truth of [the] testimony; instead, the
detective indicated only that certain statements did not conflict with
other statements or evidence.” Id. at ¶ 43.
¶ 90 We do not apply West’s reasoning because it is at odds with
Colorado Supreme Court precedent. The supreme court has held
that witnesses may not directly or indirectly testify about the
truthfulness of another witness. See Wittrein, 221 P.3d at 1081.
But that is what happened here.
34
¶ 91 The second reason the detective’s opinion was improper is that
it usurped the jury’s function. It is the jury’s fundamental task to
consider all testimony and to determine which version of the events
is more credible. Bobian, ¶ 39 (Berger, J., specially concurring).
Similarly, it was for the jury to determine whether the victim’s
statements were consistent with what she said before trial. The
usurpation was particularly harmful in this case because the jury
did not hear any of the recorded interviews. Instead, the jury only
heard the detective’s opinion that the victim testified consistently
with those interviews. The jury had no way to independently
evaluate the detective’s opinion.
¶ 92 We also resoundingly reject the Attorney General’s argument
that time constraints necessitated and permitted the detective’s
testimony because it would have taken too long to admit fifteen
hours of the victim’s recorded interviews. Time constraints do not
allow the prosecution to run roughshod over a criminal defendant’s
right to a fair trial. Time constraints are no excuse for failing to
comply with evidentiary rules.
¶ 93 Additionally, the prosecution need not have introduced all
fifteen hours of interviews. It only needed to introduce those prior
35
consistent statements necessary for rehabilitation. It is common
practice to isolate important pieces of audio or visual recordings
from the recording as a whole, separating the wheat from the chaff.
¶ 94 We therefore hold that the trial court abused its discretion by
admitting this testimony.
2. The Error Was Harmless
¶ 95 The standard of reversal for preserved evidentiary claims is
harmless error. Hagos v. People, 2012 CO 63, ¶ 12. An error is
harmless if there is no reasonable possibility that it contributed to
the conviction. Pernell v. People, 2018 CO 13, ¶ 22. Under this
standard, we will not reverse unless the error “substantially
influenced the verdict or affected the fairness of the trial
proceedings.” Hagos, ¶ 12 (citation omitted).
¶ 96 For three reasons, we conclude that there is no reasonable
possibility that the error contributed to Daley’s convictions.
¶ 97 First, the jury’s split verdict is strong evidence that it was not
influenced by the detective’s improper testimony. One of the
improper exchanges concerned the alleged abuse relating to
“Daddy.” The prosecutor asked about “the Daddy incident where
her mom is masturbating on the phone with him and rolls over and
36
then they begin mutually touching each other, penetrating the
vagina, kissing, fondling breasts, things like that, is that generally
consistent?” The detective said yes. Despite this improper
bolstering, the jury acquitted Daley of all charges pertaining to the
“Daddy” incident. This demonstrates that the jury was not
substantially influenced by the testimony.
¶ 98 Second, the detective’s improper bolstering was miniscule in
comparison to the proper corroboration accomplished by other
witnesses. The detective’s testimony covered about a page and a
half of transcript during an eight-day trial. The fact that improperly
admitted testimony was brief and fleeting supports a conclusion
that it was harmless. People v. Herdman, 2012 COA 89, ¶¶ 46-47.
More importantly, as discussed in Part II.C, supra, the jury heard a
great deal of testimony from other prosecution witnesses about the
victim’s prior consistent statements. Daley identified eight
witnesses who gave such testimony. The magnitude and variety of
testimony properly corroborating the victim’s testimony leads us to
conclude that the detective’s fleeting opinion did not affect the jury.
¶ 99 Third, the evidence against Daley was overwhelming. See
Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991) (an error may
37
be harmless if there was overwhelming evidence of guilt). In a
series of text messages that were presented to the jury, Daley
acknowledged the existence of “naked” photos of the victim that
they took for the British Guy. As to the convictions regarding the
events involving Helton, the jury saw messages between Helton and
Daley that alluded to a plan to have group sex with the victim and
later corroborated that it occurred. The evidence also included
Helton’s statements against interest (discussed in the next section),
acknowledging that the group sex occurred and that he had sex
with the victim.
¶ 100 The victim was able to identify a photo of Daley’s genitals,
including a mole. This identification was evidence that Daley had
the victim touch Daley’s genitals. And the victim’s testimony, given
over multiple days, alleged with detail the sexually explicit photos
that Daley took of her and sent to others, as well as Daley’s specific
acts of sexual abuse.
¶ 101 Daley counters by pointing our attention to the alternate
jurors’ emails, both indicating that they would not have returned a
guilty verdict. These statements are not competent evidence under
CRE 606(b), and Daley does not claim that they are. See Clark,
38
¶ 239 (discussing competent evidence). Therefore, we do not
further address these statements.
¶ 102 For all these reasons, we conclude that the court’s error was
harmless.
E. Other Evidentiary Rulings
¶ 103 Daley argues that three other evidentiary rulings constituted
reversible error.
1. Standard of Review
¶ 104 “We review a trial court’s evidentiary rulings for an abuse of
discretion.” Campbell v. People, 2019 CO 66, ¶ 21. For a preserved
error, we reverse only if it substantially influenced the verdict or
affected the fairness of the trial proceedings. People v. Garrison,
2017 COA 107, ¶ 31.
2. Unavailable Witness’s Statements Against Interest
¶ 105 The trial court admitted two of Helton’s out-of-court
statements as statements against interest. CRE 804(b)(3). Such
statements “are not excluded by the hearsay rule if the declarant is
unavailable as a witness.” CRE 804(b). Helton died in California
while awaiting extradition to Colorado. It is uncontested that his
death rendered him unavailable under the rule. See CRE 804(a)(4).
39
¶ 106 A statement is against interest if two elements are met:
(A) a reasonable person in the declarant’s
position would have made [the statement] only
if the person believed it to be true because,
when made, it . . . had so great a tendency to
. . . expose the declarant to civil or criminal
liability; and
(B) [the statement] is supported by
corroborating circumstances that clearly
indicate its trustworthiness . . . .
CRE 804(b)(3).
¶ 107 A statement tends to subject a person to criminal liability if
the statement “would have been probative in a trial against him.”
People v. Moore, 693 P.2d 388, 390 (Colo. App. 1984).
a. Helton’s Statements on the Bridge
¶ 108 A police officer discovered a man, identified as Helton, who
was threatening to jump off a bridge in California. The officer
talked to Helton to figure out “what [was] causing him anguish,”
attempting to convince Helton to come down to safety. Helton told
the officer that he had an outstanding warrant in Colorado for
“having sex with a minor.” Helton said that he had sex with a
woman and her daughter at the woman’s house. The officer
testified that Helton “made it sound like” Helton had sex with the
40
woman and the daughter at the same time. Helton told the officer
that “it wasn’t until several weeks later” that he found out that the
daughter was a minor. The officer was able to convince Helton to
come down.
¶ 109 The trial court admitted Helton’s bridge statements,
concluding that they tended to subject him to criminal liability and
were supported by corroborating circumstances of trustworthiness.
¶ 110 We first conclude that Helton’s statements about having had
sex with a minor had a strong tendency to subject him to criminal
liability. Daley argues that the statements did not satisfy every
element of particular sexual offenses, but that is not the test. It is
enough that the statements “would have been probative in a trial
against” Helton. Id. at 390.
¶ 111 The court also properly exercised its discretion by finding
corroborating circumstances indicated the trustworthiness of the
statements. Helton made them while he was distraught,
threatening to jump off a bridge. These circumstances indicate that
Helton believed what he was saying — he was upset enough about
what he said he had done (or that others had found out what he
had done) that he was considering ending his life.
41
¶ 112 Thus, the trial court acted within its discretion by admitting
Helton’s statements on the bridge.
b. Helton’s Jail Phone Call
¶ 113 After the bridge incident, Helton was taken to jail in California.
While awaiting extradition to Colorado, he had a phone call with his
wife, during which they discussed the Colorado warrant.
¶ 114 Daley stated at a pretrial motions hearing that she did not
object to the prosecution introducing Helton’s jailhouse statements.
Daley’s counsel mentioned the phone call during opening
statement: “You will hear about e-mail statements and other
statements he makes that we have in recorded phone calls where he
is admitting to that sexual threesome.” Later in the opening
statement, Daley’s counsel referenced specific statements that
Helton made on the call.
¶ 115 On these facts, we conclude that Daley invited any error with
respect to admitting Helton’s jail phone call.
¶ 116 “The doctrine of invited error prevents a party from
complaining on appeal of an error that he or she has invited or
injected into the case; the party must abide the consequences of his
or her acts.” People v. Rediger, 2018 CO 32, ¶ 34. The invited error
42
doctrine only applies to “trial strategy but not to errors that result
from oversight.” Id.¶ 117 Daley cannot complain that statements she relied on in
opening statement were later admitted into evidence. See Gray v.
People, 139 Colo. 583, 588, 342 P.2d 627, 630 (1959) (“[W]e cannot
consider the trial court to be in error for giving an instruction
demanded by the defense.”). The multiple instances when Daley
could have objected to this evidence, but did not, coupled with her
multiple references to the phone call during opening statement,
demonstrate that she made a strategic choice to use that evidence.
Daley therefore invited any error, so appellate review is barred.
Rediger, ¶ 34.
3. Res Gestae
¶ 118 Daley next argues that the court erred by admitting a myriad
of evidence about her sex life as res gestae. Daley does not argue
that the res gestae doctrine should be abolished. See People v.
Rojas, 2020 COA 61, ¶¶ 19-24 (holding that evidence was
admissible under the res gestae doctrine) (cert. granted Oct. 6,
43
2020).6 She only argues that the evidence was irrelevant and
unduly prejudicial under CRE 401-403.
a. Additional Facts
¶ 119 The prosecution presented a multitude of evidence concerning
the sexualized environment in which Daley raised the victim. For
example, when the victim was in elementary school, Daley and a
boyfriend had loud sex in a bedroom while the victim was sleeping
in the bedroom closet. Daley also shared intimate details about her
sex life with the victim. The victim testified that Daley would
masturbate in her presence, including times when they were
sharing a bed. The victim testified that she and Daley would walk
around their house naked, and that Daley would slap or grab the
victim’s breast or buttocks. The prosecution argued that all of this
was evidence of “grooming” the victim, helping to explain how the
victim reacted to the abuse. The trial court admitted this evidence
as res gestae.
6 Based on the order granting certiorari in People v. Rojas, 2020
COA 61, the supreme court is considering abrogating the res gestae
doctrine in Colorado. Rojas v. People, (Colo. No. 20SC399, Oct. 6,
2020) (unpublished order). Current case law, however, recognizes
the res gestae doctrine.
44
¶ 120 Daley argues that the court erred by allowing the following
testimony:
• there were occasions when the victim overheard or saw
Daley and a boyfriend having sex or engaging in other
sexual acts;
• Daley had vibrators, lubricant, condoms, latex gloves,
and sex toys in her bedroom;
• upon her arrest at the airport, Daley had vibrators and
sex toys in her luggage; and
• Daley’s digital devices included a number of sexually
explicit photos of Daley.
¶ 121 Additionally, she challenges the admission of a photo of Daley
using a vibrator on her genitals.
b. Law
¶ 122 Res gestae is “matter incidental to the main fact and
explanatory of it.” People v. Rollins, 892 P.2d 866, 872 (Colo. 1995)
(citation omitted). Res gestae is generally “linked in time and
circumstances with the charged crime, or forms an integral and
natural part of an account of the crime, or is necessary to complete
the story of the crime for the jury.” People v. Quintana, 882 P.2d
451366, 1373 (Colo. 1994) (citation omitted). But res gestae must still
be relevant under CRE 401 and not unduly prejudicial under CRE
403. Rollins, 892 P.2d at 873.
¶ 123 Evidence is relevant under CRE 401 when it makes the
existence of a consequential fact more or less probable than it
would be without the evidence. The rules of evidence strongly favor
the admission of relevant evidence. Murray v. Just in Case Bus.
Lighthouse, LLC, 2016 CO 47M, ¶ 19.
¶ 124 CRE 403, however, requires the exclusion of relevant evidence
“if its probative value is substantially outweighed by the danger of
unfair prejudice.” “Evidence is unfairly prejudicial only if it has a
tendency to suggest a verdict on an improper basis, such as bias,
shock, anger, or sympathy.” People v. Ellsworth, 15 P.3d 1111,
1114 (Colo. App. 2000). When admitted evidence is challenged on
appeal under CRE 403, the reviewing court must afford the
evidence its maximum probative weight and its minimum
prejudicial effect. Murray, ¶ 19.
¶ 125 “Rule 403’s ‘probative value’ is not considered in isolation but
signifies the ‘marginal’ or ‘incremental’ probative value of evidence
relative to the probative force of other evidence available in the
46
case.” People v. Williams, 2020 CO 78, ¶ 14 (citations omitted).
Thus, we consider the extent to which the proffered evidence “adds
logical force . . . to the existing body of evidence proving the same
material fact.” Id.c. Application
¶ 126 We conclude that the court did not abuse its discretion by
admitting this evidence.
¶ 127 The evidence was relevant. The lion’s share of it supported the
prosecution’s theory of the case: Daley was able to get the victim to
participate in sexual activities and procure her silence about what
Daley was doing because of years of grooming. Evidence offered to
demonstrate grooming included testimony about instances when
Daley would have audible sex or masturbate in the victim’s
presence or while she was nearby. The victim’s testimony
corroborated this theory of the case. When the victim told others
about the types of things her mother did to her, the victim was
surprised at how upset they were. This evidence was relevant and
highly probative. The probative value of this evidence far exceeded
any unfair prejudice.
47
¶ 128 Next, the sexually explicit photograph of Daley tended to rebut
the assertion that the naked photos she sent to the British Guy
were mere “diet” photos (Daley’s theory), rather than sexually
explicit photos. The photo of Daley, as well as the victim’s
testimony about other photos, also rebutted the argument that the
victim introduced Daley to sending sexually explicit photos on the
internet. While the photo and this testimony may have been
unfairly prejudicial, affording the evidence its maximum probative
value and minimum prejudicial effect, we cannot say that the court
abused its discretion by admitting it. See Murray, ¶ 19.
¶ 129 Next, testimony about Daley’s possession of sexual toys and
devices was relevant to the victim’s allegation that Daley had taken
a nude photo of her handcuffed to the bed, used vibrators on her,
and purchased vibrators for her. Because this evidence
corroborated some of the material allegations in the case, it was
highly probative and not excludable under CRE 403.
¶ 130 The trial court therefore did not abuse its discretion by
admitting any of this evidence.
¶ 131 But even if any evidence of Daley’s lawful sexual activities was
errantly admitted, the error was harmless. Daley argues that the
48
error “allowed jurors with more conventional tastes to judge her
negatively.” To the contrary, the evidence of the crimes for which
Daley was convicted was a much more prejudicial basis for which
the jury could judge her negatively. Like in People v. Herron, the res
gestae evidence was “vastly overshadowed” by the multitude of
evidence of sexual abuse of a child for which Daley was convicted.
251 P.3d 1190, 1198 (Colo. App. 2010) (evaluating the
harmlessness of CRE 404(b) evidence).
¶ 132 And again, the jury’s split verdict demonstrates that the
evidence was not so overly prejudicial that the jury could not
properly evaluate the case as a whole. The split verdict
demonstrates that the jury did not hear the evidence of Daley’s
lawful sexual activities and decide on that basis that she was guilty
of every sexual crime with which she was charged.
4. Excluding Testimony Under the Rape Shield Statute
¶ 133 The prosecution asked one of its witnesses, “Did [the victim]
tell you whether she had, in fact, found someone to take her
virginity” around the time of the interactions with the British Guy?
The witness responded, “Yes. They — she said that it was almost
her cousin . . . at one point, and [the cousin] stopped it right before
49
they had intercourse, and then she found another guy online.” The
prosecution did not ask about the cousin or that interaction. When
Daley indicated her intent to call the cousin as a witness and ask
him about his sexual contact with the victim, the court ruled that
the testimony was barred by the rape shield statute. See § 18-3-
407(1), C.R.S. 2020.
¶ 134 “Evidence of specific instances of the victim’s or a witness’s
prior or subsequent sexual conduct, opinion evidence of the victim’s
or a witness’s sexual conduct, and reputation evidence of the
victim’s or a witness’s sexual conduct” is only admissible in limited
circumstances. Id. The statute reflects “the state’s policy . . . that
victims of sexual assaults should not be subjected to psychological
or emotional abuse in court as the price of their cooperation in
prosecuting sex offenders.” People v. McKenna, 196 Colo. 367, 372,
585 P.2d 275, 278 (1978). The statute requires the proponent of
the evidence to make an offer of proof as to the “relevancy and
materiality” of the evidence before it can be admitted. § 18-3-
407(2).
¶ 135 On appeal, Daley argues that the prosecution opened the door
to further questioning about the cousin’s sexual history with the
50
victim. She contends that the court erred in foreclosing this line of
questioning. We do not address the interplay of the rape shield
statute and the doctrine of opening the door because Daley’s offer of
proof at trial was clearly insufficient under the statute.
¶ 136 Defense counsel argued that further testimony from the
cousin went to the victim’s credibility. But a “defendant cannot
introduce evidence of a victim’s prior sexual history to attack the
credibility of a victim as a witness.” People v. Wallen, 996 P.2d 182,
186 (Colo. App. 1999) (interpreting the rape shield statute). Even if
the doctrine of opening the door somehow negates that black letter
rule of law, Daley has not explained how this testimony would
impinge the victim’s credibility. The victim testified that she lost
her virginity to someone she met online with the help of her mother.
The testimony of the prosecution’s witness did not contradict that.
Without more, it is not clear how the victim’s credibility would have
been impeached by the proffered evidence.
¶ 137 Daley also argues that the cousin should have been allowed to
“defend himself.” But what the cousin did or did not do had
nothing to do with the offenses that Daley was charged with.
51
¶ 138 On appeal, Daley argues that the cousin’s testimony was
necessary to rebut the inference “that Daley was recruiting her own
nephew to take her daughter’s virginity to facilitate plans with [the]
British [G]uy.” Daley did not make this argument to the trial court
in her offer of proof, so we will not consider it. Even if we did, it is
not at all clear how the witness’s testimony led to the inference that
Daley was recruiting the cousin to have sex with the victim because
the testimony did not mention Daley.
¶ 139 The court properly exercised its discretion in excluding this
testimony under the rape shield statute.
5. Cumulative Error
¶ 140 Last, Daley argues that cumulative error deprived her of a fair
trial. We disagree.
¶ 141 The doctrine of cumulative error requires that numerous
errors occurred, not merely that they were alleged. People v. Allgier,
2018 COA 122, ¶ 70. “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. Stated simply, cumulative error involves
52
cumulative prejudice.” Howard-Walker v. People, 2019 CO 69, ¶ 25
(citation omitted).
¶ 142 We have only identified one error, the detective’s testimony on
the consistency of the victim’s statements. We concluded that this
error was harmless. The doctrine of cumulative error is therefore
inapplicable.
III. Conclusion
¶ 143 The judgment of conviction is affirmed.
JUDGE RICHMAN and JUDGE WELLING concur.
53