23CA0481 Peo v Gerle 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0481
Douglas County District Court No. 21CR1064
Honorable Patricia D. Herron, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Donald Louis Gerle,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE GOMEZ
Kuhn and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, Jaycey D. DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Fuller & Ahern, P.C., Brian M. Close, Parker, 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. 2023.
1
¶ 1 Defendant, Donald Louis Gerle, appeals the judgment of
conviction entered on jury verdicts finding him guilty of first degree
assault, second degree assault, and false imprisonment. We reverse
and remand for a new trial.
I. Background
A. The Factual Allegations
¶ 2 Gerle and the victim — Gerle’s wife — were married for over
twenty-five years and, at the time of the charged conduct, had two
teenage children living at home. The conduct occurred over the
course of a weekend, during which, according to the victim, Gerle
confined her to their bedroom closet and violently assaulted her,
causing severe injuries. The victim admitted this was the first time
Gerle had ever been violent with her.
¶ 3 The couple began arguing on Thursday evening. The victim
said that Gerle became angry when she couldn’t remember the last
name of someone she’d dated thirty years earlier. During that
argument, Gerle allegedly threw a Pringles can at her, bruising her
thigh. The argument subsided that night but picked back up again
the following afternoon. When the victim still couldn’t remember
the last name of the person she’d dated, Gerle allegedly hit her on
2
the legs with a camera tripod. The couple moved upstairs to their
bedroom where they continued arguing, at that point concerning
the victim’s inability to remember the name of a book she’d read.
Gerle allegedly straddled the victim on the bed and hit her, bruising
her face and splitting her lip.
¶ 4 The argument picked back up again on Saturday afternoon in
the couple’s bedroom. At some point, they ended up in their walk-
in closet. The victim said that over the course of the next fourteen
hours, Gerle confined her in the closet and hit her all over her body
with a variety of objects, including his hand, hangers, a belt buckle,
a pair of steel toe boots, and a magnifying glass. She also said that
Gerle had her phone during most of this time but briefly returned it
to her so she could text a friend about covering her duties at church
on Sunday morning.
¶ 5 The victim reported that throughout the weekend, Gerle was
using cocaine and drinking alcohol, which he repeatedly dumped
over her head. At some points, she also voluntarily used cocaine; at
other points, Gerle allegedly forced her to use it. She may also have
consumed some alcohol.
3
¶ 6 According to the victim, Gerle finally left the closet and went to
bed early Sunday morning. She tried to escape while he was
sleeping but was too injured and kept losing consciousness. She
eventually joined Gerle in bed, where she stayed all day. Late that
night, she got up while Gerle was in the bathroom, slid herself down
the stairs, and drove herself to the hospital.
¶ 7 The victim was treated for two black eyes, a collapsed lung,
and two broken ribs. She had bruises on her face, behind her ears,
across her back and torso, and on her legs and feet. She also had a
puncture wound on her ankle, which later became infected and
required multiple surgeries to remove the resulting abscess.
B. The Trial
¶ 8 Gerle was charged with first degree assault for assaulting the
victim with steel toe boots as a deadly weapon, second degree
assault for assaulting the victim, and false imprisonment for
confining the victim.
¶ 9 At trial, Gerle attempted to raise as his theory of defense that
the incident was (or at least started as) a consensual role-play
encounter involving bondage, discipline, dominance, submission,
sadism, and masochism (BDSM).
4
¶ 10 Defense counsel tried to introduce this theory during his
opening statement, stating,
Things aren’t always what they seem. You’ll
learn that when [the couple] were alone, all by
themselves, when no one was looking, they
lived a different lifestyle, a lifestyle that they’ll
probably be embarrassed, if not ashamed, to
have to publish to a jury of their peers. A
lifestyle that was different than the lifestyle
that they portrayed to their children and to
their community. You’ll hear about the use of
cocaine during that weekend and the days
leading up to that weekend. You’ll learn about
[the couple]’s ongoing and regular sexual
fantasy role-playing.
The prosecutor objected on the basis that the defense hadn’t
complied with the notice requirements of the rape shield statute,
section 18-3-407, C.R.S. 2023.
¶ 11 Defense counsel responded that the rape shield statute didn’t
apply because Gerle wasn’t charged with a sexual crime and the
victim wasn’t a sexual assault victim. He also explained that the
defense intended to introduce evidence that the couple had texted
each other in the week leading up to the charged conduct about a
planned, consensual BDSM role-playing encounter that would
involve sixteen whippings. This evidence, he argued, was relevant
to the issues of consent and intent.
5
¶ 12 The trial court sustained the objection based on the rape
shield statute, struck the objected-to portion of defense counsel’s
argument, and ordered the jury to disregard it. Defense counsel
then concluded the opening statement without making any
reference to BDSM activities.
¶ 13 Later that day, defense counsel proffered an exhibit containing
the referenced text messages between Gerle and the victim from the
Monday before the charged conduct. In the text messages, Gerle
repeatedly asked the victim for the name of a book she’d mentioned
and accused her of lying about it. She eventually sent him a
screenshot of an erotic novel. Gerle responded, “Good PET . Now
SIR has to check the date and story line to make sure ur not lieing ,
but if not your punishment will be much less. You still need to b
whipped on the back 16 times for your Disobedience – SIR.” She
replied, “Thank you SIR[,] PET deserves whatever SIR delivers.” He
asked her again for the name of the book she’d mentioned, and the
following exchange ensued:
The victim: Three Simple Rules ( the
blindfolded club)
The victim: The rules are:
1. Girl can’t ask questions
6
2. Girl answers SIRS questions
HONESTLY
3. No orgasm without permission
Gerle: Those 3 rules will b in our SUB /
DOM contract. W a list of
punishments for breaking
The victim: Yes, SIR
. . . .
Gerle: I still have a hard on from u telling
me about that story. Its date is
right, but u still have some lashes
coming.
The victim: I am looking forward to them SIR
The victim: PET is waiting for SIR
. . . .
The victim: I have never felt desire like I do
now. You have awakened a
monster
Gerle: Please dont keep turning me on.
SIR needs to rest his parts . But I
feel the same way.
. . . .
Gerle: SIR needs to know what makes
PET hot.
The victim: Besides what SIR already knows.
The victim: PET gets hot with anticipation of
what’s coming. PET just realized
she likes the soft whip
7
The victim: PET like talking dirty with SIR
The victim: PET likes almost getting caught
Gerle: U haven’t felt anything yet. The
real fun will begin when ur ready to
tell me ur deepest dirtiest fantasys
w no fear of judgement from SIR.
Nothing turns me on more than
hearing u talk about real or
imagined sex stories.
. . . .
Gerle: I think i will get that lock box u
suggested. U can start by writeing
about what goes on in your
naughty head.
The victim: Yes, please
Gerle: Didnt i ask PET not to turn me on?
The victim: I’m sorry SIR
Gerle: U still sound horny PET. I can see
why u liked this Three Simple
Rules book. Now write a story
about a hot wife who has a secrete
prostitute fantasy. Part truth part
fiction. . . .
The victim: Yes SIR. What is the due date
please?
Gerle: I want it by Friday . . . .
The victim: Yes, SIR.
. . . .
8
The victim: Love you. Being away from you is
worse than a whip
The victim: I serve one Master. You know that.
I love you.
Gerle: And i serve one amazing , beautiful
, Hot Wife . Submissive / PET
The victim: Thank you SIR
¶ 14 The court agreed to review the text messages, accept briefs on
the applicability of the rape shield statute, and research the issue
before the proceedings the next day.
¶ 15 That evening, defense counsel filed a combined brief on the
applicability of the rape shield statute and motion for a mistrial. In
addition to reiterating the defense’s arguments as to why the
statute didn’t apply, counsel argued that the effect of the court’s
restriction of his opening statement and its instruction to the jury
to disregard his theory of the case had prejudiced the defense,
establishing grounds for a mistrial.
¶ 16 The next day, the trial court denied the motion for a mistrial
without revisiting its ruling on the rape shield statute. The court
also ruled that defense counsel could ask the victim in cross-
examination whether the charged conduct was consensual but
would be stuck with the victim’s answer. The court added that
9
defense counsel could ask the victim about the text messages and
use them for impeachment if he could “connect [them] to the
timeframe that’s relevant to these charges” — “in other words, . . . if
the[] [texts] relate to the dates and times charged.” But, the court
continued, “[i]f [they’re] not related” and the victim “says, ‘No, . . .
we were talking about this ahead of time, what happened that night
is totally separate,’ then [he would be] stuck with that answer.” The
court further ruled that “[w]hether or not they had engaged in prior
sexual role-playing that involved beating, that left bruises and other
physical injuries is not relevant.”
¶ 17 In cross-examining the victim, defense counsel started to ask,
“[I]s it true that you and Mr. Gerle engaged in consensual whipping
that week leading up to —” when the prosecutor objected. The
court sustained the objection, ruling that defense counsel could
only ask whether Gerle and the victim engaged in such conduct on
the dates of the charged conduct — not whether they had done so
previously. Defense counsel then asked the victim whether she and
Gerle had consented to any whipping during the charged incident,
and she responded “No, not whipping, not like he did to me.” She
went on to say that they “had a cat and nine tails thing” that they
10
would use “gently” but “weren’t engaged in that during these days.”
As the court had ordered, defense counsel didn’t ask any follow-up
questions at that time.
¶ 18 Defense counsel later asked the victim about text messages
she’d sent to Gerle on that Friday morning — which aren’t included
in the record — saying that she wanted every night to be like last
night and that she’d never felt more important, loved, and desired
by him as she had then. She acknowledged that she had sent the
texts but said she didn’t recall sending them or know what they
were referencing. Defense counsel moved to admit the texts as
prior inconsistent statements, but the court sustained the
prosecutor’s objection based on a lack of foundation authenticating
the texts as having been sent by the victim.
¶ 19 Gerle didn’t testify at trial.
¶ 20 The jury convicted Gerle of the three charged offenses. It also
found, in conjunction with a crime of violence sentence enhancer,
that Gerle had caused serious bodily injury as to both assault
offenses. The trial court sentenced Gerle to a total term of twenty-
two years’ imprisonment.
11
C. This Appeal
¶ 21 On appeal, Gerle contends that (1) the trial court erred by
concluding that the rape shield statute applies and consequently
limiting defense counsel’s opening statement; (2) the trial court
erred by denying his request for a mistrial based on misapplication
of the rape shield statute; (3) the trial court erred by improperly
excluding evidence during cross-examination of the victim; (4) the
cumulative effect of these errors warrants reversal; and (5) the trial
court erred in imposing his sentence.
¶ 22 We start by addressing Gerle’s first and third contentions of
error. Because we conclude that the court erred in both respects
and that the cumulative effect of those two errors warrants reversal,
we reverse the judgment and remand the case for a new trial. We
then briefly address some of Gerle’s other contentions that are likely
to arise on remand and decline to consider the others as moot.
II. Limitations on Opening Statement
¶ 23 Gerle contends that the trial court erred by limiting defense
counsel’s opening statement based on a misapplication of the rape
shield statute. We agree.
12
¶ 24 We review de novo determinations about the applicability of
the rape shield statute. People v. Orozco, 210 P.3d 472, 478 (Colo.
App. 2009). We review for an abuse of discretion limitations a trial
court places on opening statements. People v. Harmon, 284 P.3d
124, 129-30 (Colo. App. 2011). A trial court abuses its discretion
when its decision is manifestly arbitrary, unreasonable, or unfair or
is based on an incorrect understanding of the law. People v.
Owens, 2024 CO 10, ¶ 65.
¶ 25 We conclude that the trial court erred by determining that the
rape shield statute applies to this case. The rape shield statute
“applies only when either the witness is a sexual assault victim or
the crime charged is a sexual offense.” People v. Carlson, 72 P.3d
657 (Colo. App. 1998) (the rape shield statute didn’t apply where,
among other things, “the victim was not a rape victim [and] the
defendant was not accused of sexual assault”). The crimes charged
in this case — first and second degree assault and false
imprisonment — weren’t sexual offenses. And there was no
allegation that the victim had been sexually assaulted. Therefore,
13
the rape shield statute doesn’t apply. Indeed, the People don’t
attempt to argue on appeal that it does.
¶ 26 Because the court’s application of the rape shield statute was
erroneous, so too were the limits it imposed on defense counsel’s
opening statement precluding any mention of BDSM activities. The
court didn’t cite any basis for limiting the opening statement other
than the rape shield statute; and, as discussed in the next section,
the basis the court used for excluding the underlying evidence later
in the trial was also erroneous. Thus, the limitations on the
defense’s opening statements were erroneous and constitute an
abuse of discretion. See Owens, ¶ 65 (a court abuses its discretion
if its decision is “based on an incorrect understanding of the law”).
III. Exclusion of Evidence
¶ 27 Gerle also contends that the trial court erred by excluding
evidence during the victim’s cross-examination — including, in
particular, evidence concerning prior and planned BDSM role-
playing encounters. Again, we agree.
¶ 28 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Hood, 2024 COA 27, ¶ 6.
14
¶ 29 Because the rape shield statute doesn’t apply to this case, the
trial court’s exclusion of the evidence cannot be upheld on that
basis. However, evidence that is improperly excluded under the
rape shield statute may still be excluded under general relevance
principles. See id. at ¶ 18.
¶ 30 To be relevant, evidence must be both material and probative.
Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007). Evidence is
material if it relates to a fact that is of consequence to the
determination of the action. Id.; see also CRE 401. We look to the
elements of the crimes charged to assess materiality. Fletcher, 179
P.3d at 974. Evidence is probative if it tends to prove the
proposition for which it’s offered. Id.; see also CRE 401. Relevant
evidence is admissible unless another rule or legal provision
provides otherwise. CRE 402. For instance, under CRE 403, such
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusing or
misleading the jury, undue delay, waste of time, or needless
presentation of cumulative evidence.
¶ 31 We conclude that the trial court abused its discretion by
declining to admit the BDSM-related evidence under general
15
relevance principles. In reaching this conclusion, we are guided by
People v. Garcia, 179 P.3d 250 (Colo. App. 2007), in which a
division of this court reversed based on the exclusion of similar
evidence. In that case, the defendant was charged with sexual
assault for holding the victim at knifepoint, binding her hands and
feet, and forcing her to drink alcohol and perform sexual acts. Id.
at 253. The defendant pursued a theory of defense that the victim,
whom he’d previously dated, had consented to the conduct. Id. He
sought to admit evidence that the victim had a rape fantasy, which
they’d acted out multiple times; that they’d previously engaged in
bondage and rough sex at her request; and that they’d been
intimate as recent as a week before the charged conduct. Id. The
trial court excluded this evidence under the rape shield statute and
general relevance principles. Id. at 253-54. The division reversed,
concluding that the evidence wasn’t barred by the rape shield
statute (for different reasons than in this case) and should’ve been
admitted under general relevance principles. Id. at 254-58.
¶ 32 Similarly, here, having concluded that evidence of the couple’s
prior and planned BDSM role-playing encounters wasn’t subject to
the rape shield statute, we now also conclude that such evidence
16
should’ve been admitted under general relevance principles. The
evidence is both material and probative because it relates to facts
that are of consequence in determining the action and it tends to
prove the victim’s consent and Gerle’s lack of intent. See Fletcher,
179 P.3d at 974.
¶ 33 Because lack of consent is an element of false imprisonment,
see § 18-3-303(1), C.R.S. 2023, the victim’s potential consent to
being locked in a bedroom closet to engage in BDSM activities is a
“fact that is of consequence to the determination of the action.”
CRE 401. Likewise, if the incident began as a consensual BDSM
encounter, then Gerle may have lacked the intent to confine the
victim against her will, which would negate the knowing element of
false imprisonment. See § 18-3-303(1).
¶ 34 The issue of consent was less relevant to the assault charges,
given the allegations and the jury’s findings that Gerle inflicted
serious bodily injury. See § 18-1-505(1)-(2), C.R.S. 2023; People v.
Bagwell, 2022 COA 44, ¶ 24. Nonetheless, the excluded evidence
was relevant to Gerle’s intent, which was an element of both assault
charges. See § 18-3-202(1)(a), C.R.S. 2023 (requiring intent to
cause serious bodily injury to establish the type of first degree
17
assault charged in this case); § 18-3-203(1)(g), C.R.S. 2023
(requiring intent to cause bodily injury to establish the type of
second degree assault charged in this case). If the incident began
as a consensual BDSM encounter, then Gerle may not have had the
intent to cause bodily injury or serious bodily injury to the victim.
Instead, the injuries could’ve been recklessly inflicted, as the
defense argued at trial. Moreover, the excluded evidence may have
suggested that some of the more minor injuries the victim sustained
were inflicted with her consent.
¶ 35 Thus, evidence that the couple had previously participated in
BDSM role-playing encounters and had just planned another such
encounter makes it more probable that the victim consented to at
least some of the conduct and makes it less likely that Gerle had
the requisite intent for the three charged crimes. See Garcia, 179
P.3d at 256 (evidence of prior discussions about a rape fantasy was
relevant because it would enable the defendant to “make a rational
argument that his admissions of binding [the victim] and cutting off
her clothing were reconcilable with consent, thus supporting his
claim of innocence”); id. at 257 (evidence of the previous sexual
relationship between the defendant and the victim, including recent
18
sexual activities and prior acts of bondage and rape fantasy role
play, was relevant to establish consent).
¶ 36 Additionally, this evidence isn’t too remote in time to be
relevant. While temporal remoteness may factor into the relevance
determination, it generally only affects the weight given to particular
evidence — not the admissibility of that evidence. See Fletcher, 179
P.3d at 974; People v. Taylor, 804 P.2d 196, 202 (Colo. App. 1990);
People v. Trefethen, 751 P.2d 657, 659 (Colo. App. 1987).
¶ 37 Here, the text messages the defense sought to admit, like some
of the evidence in Garcia, occurred within a week of the charged
conduct. See Garcia, 179 P.3d at 257 (evidence that the defendant
and the victim had consensual sex a week before the alleged sexual
assault wasn’t too remote in time). More generally, the trial court in
this case made essentially the same error the trial court made in
Garcia by ruling that only evidence regarding the time period of the
charged conduct was relevant and thus excluding as irrelevant
evidence of previous consensual conduct between the defendant
and the victim. See id. at 253, 256. Much like the division in
Garcia, we conclude that such evidence is relevant to the issue of
consent, see id. at 255-57, as well as to the issue of intent.
19
¶ 38 Furthermore, we conclude that the probative value of this
evidence isn’t substantially outweighed by the danger of unfair
prejudice, confusing or misleading the jury, undue delay, waste of
time, or needless presentation of cumulative evidence. See CRE
403. Although the trial court didn’t explicitly perform this analysis,
we may do so on appeal. See Garcia, 179 P.3d at 257. As we’ve
explained, the evidence of prior and planned BDSM role-playing
encounters was material and probative of both the victim’s consent
and Gerle’s intent. And, as in Garcia, “any possible prejudice to the
victim from [the admission of] additional details of her sexual
conduct with [Garcia] pales in comparison with the relevance of the
particular nature . . . of the relationship.” Id. at 258; see also
People v. Vanderpauye, 2023 CO 42, ¶ 6 (“[T]he balance inherent in
CRE 403 should be struck in favor of admissibility.”). Nor do we
view the evidence as presenting a risk of confusing or misleading
the jury, causing undue delay, wasting time, or presenting
needlessly cumulative evidence. Thus, the evidence is admissible
under CRE 403.
¶ 39 Accordingly, we conclude that the trial court abused its
discretion by excluding the BDSM evidence on the basis of the rape
20
shield statute (to the extent that it was a basis for the trial court’s
ruling) and lack of relevance.
1
IV. Cumulative Error
¶ 40 We also conclude that, cumulatively, the two errors we’ve
identified warrant reversal of the judgment.
¶ 41 Even when individual errors may be deemed harmless,
reversal is required if “the cumulative effect of [multiple] errors and
defects substantially affected the fairness of the trial proceedings
and the integrity of the fact-finding process.” Howard-Walker v.
People, 2019 CO 69, ¶ 24 (alteration in original) (quoting People v.
Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666 (1980)). Thus, we
reverse under the cumulative error doctrine if we’ve “identif[ied]
multiple errors that collectively prejudice the substantial rights of
the defendant, even if any single error does not.” Id. at ¶ 25.
1
The People contend that evidence of the text exchange was
inadmissible for the additional reason that the victim didn’t provide
any inconsistent testimony that would’ve warranted its admission
under section 16-10-201(1), C.R.S. 2023, notwithstanding that it
included hearsay. But the trial court curtailed the questions
defense counsel could ask the victim about BDSM, forestalling the
defense’s ability to establish any such inconsistency.
21
¶ 42 We decline to resolve the parties’ dispute as to which standard
of reversal applies to this case. Even assuming that the less
onerous nonconstitutional harmless error standard applies,
notwithstanding that the court’s errors may well have precluded
Gerle from presenting a defense or conducting a meaningful cross-
examination on material issues, we conclude that reversal is
warranted. See Krutsinger v. People, 219 P.3d 1054, 1058, 1061
(Colo. 2009); Garcia, 179 P.3d at 255, 258. Under this standard,
reversal is required if the errors “substantially influenced the
verdict or affected the fairness of the trial proceedings.” Hagos v.
People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,
342 (Colo. 1986)).
¶ 43 We conclude that the combined effect of the two errors —
limiting defense counsel’s opening statement and excluding
evidence of prior and planned BDSM role-playing encounters —
substantially influenced the verdict and affected the fairness of the
trial proceedings.
¶ 44 Collectively, these two errors undercut the primary theory of
defense Gerle had intended to raise at trial: that because they were
engaging in consensual BDSM activities, the victim had consented
22
to at least some of the charged conduct and he lacked the requisite
intent for the charged offenses. The combined effect of striking the
BDSM-related references from opening statement, instructing the
jury to disregard that portion of the opening statement, and
excluding BDSM-related evidence at trial prevented Gerle from
presenting his alternative explanation for why he and the victim
were locked in their closet and why he started striking her. Yet if
the incident was (or began as) a consensual BDSM role-playing
encounter, then the confinement and some of the injuries may have
been inflicted with consent; Gerle may have locked the victim in the
closet without any intent to confine her against her will; and Gerle
may have injured the victim out of recklessness, rather than an
intent to cause bodily injury or serious bodily injury. And if the
jury had found consent or lack of intent, it could’ve acquitted Gerle
on some or all three of the charges. See People v. Stewart, 2017
COA 99, ¶ 41 (reversing under the cumulative error doctrine where
the trial court’s errors “impacted the theory of defense”); Garcia,
179 P.3d at 256-57 (without the excluded evidence related to rape
fantasy and bondage, it was “very unlikely that reasonable jurors
would have considered the [charged] conduct consensual”).
23
¶ 45 Additionally, these errors prevented Gerle from effectively
challenging the victim’s testimony and credibility, which were
central to the prosecution’s case. Neither the occurrence of the
incident nor the fact that Gerle perpetrated it were in dispute;
rather, the questions were what exactly happened in the bedroom
and closet, whether the victim consented to it, and whether Gerle
had the requisite intent for the charged offenses. And because
Gerle and the victim were the only eyewitnesses, the prosecution’s
case rested almost entirely on the victim’s testimony and credibility.
Cf. People v. Cobb, 962 P.2d 944, 950 (Colo. 1998) (“With the two
main witnesses being the perpetrator and the victim, the
significance of the victim’s credibility to the outcome of the trial
cannot be overstated.”). By limiting defense counsel’s opening
statement and cross-examination of the victim, the court prevented
Gerle from meaningfully challenging the victim’s version of events
as well as her credibility.
2
2
The victim’s brief allusion to “a cat and nine tails thing” that the
couple sometimes used “gently” but not during the days in question
didn’t alleviate the harm. In particular, it didn’t enable the defense
to question the victim about her texts with Gerle concerning a
planned whipping just a few days before the charged conduct.
24
¶ 46 Lastly, the trial spanned only four days. See Stewart, ¶ 40
(courts consider “the length of the trial” when evaluating cumulative
error) (citation omitted). The “relatively short” length of the trial
“add[s] emphasis to the errors.” Id. at ¶ 42.
¶ 47 Given the nature of the errors, their interrelationship and
combined effect, the lack of any remedial efforts to cure the errors,
and the short length of trial, we cannot say that the errors didn’t
substantially influence the verdict or affect the fairness of the trial.
See id. at ¶ 40 (citing considerations for a finding of cumulative
error). Therefore, we reverse the judgment and remand the case for
a new trial on all three of Gerle’s convictions.
V. Other Contentions of Error
¶ 48 We briefly address some of the evidentiary issues raised in the
parties’ briefs that are likely to arise on remand in the event of a
retrial. See Herrera v. Lerma, 2018 COA 141, ¶ 12.
• BDSM evidence: While we conclude that evidence of
previous or planned BDSM activities is relevant and is
not rendered inadmissible by CRE 403, we don’t address
any other bases — like hearsay, lack of authentication, or
25
other objections — that may be raised to exclude or limit
such evidence in a new trial.
• The victim’s Friday morning texts saying that she wanted
every night to be like last night and that she’d never felt
more important, loved, and desired by Gerle: These texts
are relevant to the issues of consent and the victim’s
credibility, and their probative value is not substantially
outweighed by the danger of unfair prejudice or other
concerns. See CRE 401, 403. But because these texts
may be presented in a different way in any retrial, we
don’t determine whether the trial court erred by
concluding that they hadn’t been properly authenticated
in the first trial. We also don’t determine whether the
texts or statements concerning them may be excluded at
any retrial on other bases, such as hearsay concerns.
• The victim’s cocaine use: Evidence that the victim
voluntarily used cocaine prior to and during the charged
incident is relevant to the victim’s credibility (given her
statements to investigators that she had never used
cocaine voluntarily but had been forced to do so during
26
the charged incident) and whether the victim consented
to any of the charged conduct; its probative value is not
substantially outweighed by the danger of unfair
prejudice or other concerns; and it is not improper other
acts evidence. See CRE 401, 403, 404(b). We don’t
determine whether any specific texts or other statements
concerning cocaine use may be excluded at any retrial on
other bases, such as authentication or hearsay concerns.
• The victim’s alcohol consumption: Evidence that the
victim voluntarily consumed alcohol prior to and during
the charged incident is relevant to the victim’s credibility
(given her contradictory statements as to whether she
consumes alcohol and whether she consumed any during
the time of the charged incident) and may potentially be
relevant to whether the victim consented to any of the
charged conduct; its probative value is not substantially
outweighed by the danger of unfair prejudice or other
concerns; and it is not improper other acts evidence. See
CRE 401, 403, 404(b). We don’t determine whether any
specific statements concerning alcohol use may be
27
excluded at any retrial on other bases, such as
authentication or hearsay concerns.
¶ 49 Gerle’s contentions regarding his motion for mistrial and his
sentence are moot, so we decline to address them. See People v.
Baker, 2019 COA 165, ¶ 31 (declining to address a sentencing
challenge that was mooted by the division’s decision to reverse and
remand the relevant convictions for retrial), aff’d on other grounds,
VI. Disposition
¶ 50 The judgment is reversed, and the case is remanded for a new
trial.
JUDGE KUHN and JUDGE RICHMAN concur.
