22CA1947 Peo v Alvarenga 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1947
Jefferson County District Court No. 21CR3021
Honorable Jason Carrithers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jesus Alvarenga,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE PAWAR
Navarro and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
1
¶ 1 Defendant, Jesus Alvarenga, appeals the judgment of
conviction entered after a jury found him guilty of menacing,
attempted second degree kidnapping, and a crime of violence
sentence enhancer. We affirm.
I. Background
¶ 2 The prosecution charged Alvarenga with attempted second
degree kidnapping, a crime of violence sentence enhancer, and
menacing with a deadly weapon, based on fourteen-year-old B.O.’s
allegations that he attempted to force her into his car while she was
waiting for the bus.
¶ 3 B.O. testified at trial that Alvarenga sat next to her, offered her
marijuana, held a knife against her leg, repeatedly asked if she
needed a ride in a “very soft but demanding tone,” and assured her
if she got in the car with him everything would be okay. The
prosecution also introduced evidence that Alvarenga previously had
a sexual relationship with a sixteen-year-old after picking her up in
Pueblo and had approached a young woman in Edgewater. The
defense did not dispute that Alvarenga contacted B.O. at the bus
stop. It argued that Alvarenga may have made B.O. uncomfortable,
2
but it was a misunderstanding, and he did not attempt to kidnap
her. The jury convicted Alvarenga as charged.
¶ 4 Alvarenga now appeals. He claims that (1) the prosecution
presented insufficient evidence to support his attempted kidnapping
conviction; (2) the trial court erroneously admitted other act
evidence; and (3) the trial court violated his right to confrontation
by improperly admitting hearsay evidence.
II. Sufficient Evidence Supports Attempted Kidnapping
Conviction
A. Standard of Review and Relevant Law
¶ 5 In reviewing the sufficiency of the evidence, we consider
whether the relevant evidence, both direct and circumstantial, when
viewed as a whole and in the light most favorable to the
prosecution, is substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
¶ 6 We must “give the prosecution the benefit of all reasonable
inferences that might fairly be drawn from the evidence.” Id. at
¶ 19. The fact “that reasonable alternative inferences were
3
possible” does not render the evidence insufficient to support a
conviction. Id. at ¶ 41.
¶ 7 Second degree kidnapping occurs when “[a] person . . .
knowingly seizes and carries a person from one place to another,
without [their] consent and without lawful justification.” § 18-3-
302(1), C.R.S. 2023. Seize and carry are two distinct elements.
Garcia v. People, 2022 CO 6, ¶ 22. A defendant is guilty of the
seizure element if “the defendant knowingly took possession of or
had control over the victim.” Id. at ¶ 23. The carry element
requires movement from one place to another. Id. at ¶ 28.
Attempted second degree kidnapping occurs when an individual
knowingly engages in behavior that constitutes a substantial step
toward committing and completing the crime. See § 18-2-101(1),
C.R.S. 2023 (“A substantial step is any conduct, whether act,
omission, or possession, which is strongly corroborative of the
firmness of the actor’s purpose to complete the commission of the
offense.”).
4
B. Discussion
¶ 8 Alvarenga argues the evidence was insufficient to support a
reasonable conclusion that he attempted to seize and carry B.O., as
required for an attempted kidnapping conviction. We disagree.
¶ 9 B.O. testified that Alvarenga and another man (Thomas Noles)
drove to the bus stop where both men approached her and that
Alvarenga sat next to her and held a blade against her thigh. She
testified that Alvarenga offered her marijuana and sat “very close”
and “felt like he was getting closer” as he repeatedly asked her
questions, “[C]an I use your phone, do you need a ride, do you want
to get a ride, like in his very soft but demanding tone.” She testified
that Alvarenga told her everything would be okay if she went with
him and that she was scared and didn’t know what was going to
happen.
¶ 10 The officers who responded to the scene testified that they
found a serrated blade on the bench where B.O. had been sitting
and that when they found B.O., she was “visibly upset and crying”;
“hunkered down”; “shaking”; and “looking around, clearly nervous
and very shaken up.”
5
¶ 11 “Conduct strongly corroborative of the firmness of the actor’s
criminal purpose is sufficient in itself” to constitute a substantial
evidence that Alvarenga held a blade against B.O.’s body, offered
her marijuana, and used a demanding tone demonstrates his intent
to gain control over B.O. That B.O. was afraid and shaken up when
police arrived further supports the jury’s conclusion that Alvarenga
attempted to seize B.O. See Garcia, ¶23.
¶ 12 Likewise, Alvarenga’s repeated pressure on B.O. to go with him
in the car demonstrates his desire to move B.O. from the bus stop
movement, even if minimal, will often fulfill the “one place to
another” requirement); see also People v. Abbott, 690 P.2d 1263,
1270, n.4 (Colo. 1984) (knowing asportation occurs when a victim’s
movement is made or suggested out of fear). Viewing this evidence
as a whole and in the light most favorable to the prosecution, we
conclude it was substantial and sufficient to support Alvarenga’s
attempted kidnapping conviction.
6
III. Other Acts Evidence
¶ 13 Alvarenga next asserts the trial court erred by admitting
evidence of two separate incidents in which he approached young
women in public — one in Pueblo and one in Edgewater.
A. Relevant Law
¶ 14 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Cross, 2023 COA 24, ¶ 9. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair or when it misapplies the law. Id.
¶ 15 CRE 404(b)(1) prohibits using evidence of a defendant’s
uncharged act to prove his character in order to show that he acted
in conformity with that character on a particular occasion. But
evidence of other acts may nevertheless be admissible for other
purposes including to prove the defendant’s mental state and
intent. CRE 404(b)(2).
¶ 16 Before admitting CRE 404(b) evidence, a trial court must be
satisfied by a preponderance of the evidence that the prior bad act
occurred and that the defendant committed the act. People v.
Warren, 55 P.3d 809, 814 (Colo. App. 2002).
7
¶ 17 To determine whether other act evidence is admissible under
CRE 404(b), the court must consider the evidence under the four-
part test set out in People v. Spoto, 795 P.2d 1314, 1318 (Colo.
1990). To be admissible, evidence of other acts must relate to a
material fact; be logically relevant to that material fact; its relevance
must be independent of the intermediate inference that the
defendant has a bad character; and its probative value must not be
substantially outweighed by the danger of unfair prejudice. Id. We
review nonconstitutional trial errors that were preserved by
objection for harmless error. Hagos v. People, 2012 CO 63, ¶ 12.
Under this standard, we reverse only if the error substantially
influenced the verdict or affected the fairness of the trial
proceedings. Id.
B. The Pueblo Incident
¶ 18 The prosecution introduced evidence that three months before
the incident in this case, a sixteen-year-old girl called police stating
she had spent a few days with Alvarenga after he picked her up in
8
Pueblo and that they had engaged in a sexual relationship.
1
The
investigating detective testified that the girl was on foot, and
Alvarenga was in his vehicle when they first met, so “he essentially
picked her up off the street and then drove her around.” The
detective also testified that she had reviewed an interview in which
Alvarenga described the girl as his girlfriend and initially denied,
but then admitted, having sexual contact with her.
¶ 19 We conclude the trial court properly exercised its discretion to
admit this evidence under CRE 404(b). To prove that Alvarenga
attempted to kidnap B.O., the prosecution had to establish that he
knowingly attempted to seize and carry her. See § 18-1-501(6),
C.R.S. 2023 (a person acts “knowingly” with respect to conduct
described by a statute when he is aware that his conduct is of such
nature or that such circumstance exists). Alvarenga disputed the
mental state requirement at trial, arguing that the incident was a
“misunderstanding,” and he had simply wanted to borrow B.O.’s
phone. On appeal, he argues the Pueblo incident was not relevant
1
The girl ultimately contacted the police in Lakewood. For ease of
reference, because Alvarenga picked her up in Pueblo, we refer to
this incident in this opinion as “the Pueblo incident.”
9
to his mental state in this case because he did not menace the girl
in Pueblo or make sexual advances toward B.O. We disagree.
¶ 20 Alvarenga’s previous sexual relationship with a teenage girl
tended to prove that contrary to his position at trial, he approached
B.O. at the bus stop because he liked to have sex with young girls,
not that he intended to borrow her phone. See Warren, 55 P.3d at
814-15 (where the defendant denied criminal intent, evidence that
he previously engaged in similar conduct was properly admitted as
rebuttal evidence and to show knowledge). The evidence was
therefore admitted for a proper purpose, logically relevant to a
material fact, and independent of a bad character inference.
¶ 21 Like the trial court, we recognize that evidence that Alvarenga
was sexually interested in teenage girls is inherently prejudicial.
But only unfairly prejudicial evidence, carrying a risk of prejudice
that substantially outweighs its probative value, must be excluded.
See Masters v. People, 58 P.3d 979, 1001 (Colo. 2002). Alvarenga’s
defense turned on his mental state — whether the jury believed that
he only intended to ask B.O. to use her phone but that B.O.
misunderstood. The probative value of evidence that he approached
B.O. for a nefarious purpose — as he had in the Pueblo incident —
10
was therefore high. And the danger of the evidence being unfairly
prejudicial was not so great that it warranted exclusion.
¶ 22 The trial court limited the prejudicial effect of this evidence by
instructing the jury, before the testimony was introduced and in the
final jury instructions, that it was not permitted to consider the
evidence for any purpose other than to prove Alvarenga’s mental
state, knowledge, and intent. See People v. Garner, 806 P.2d 366,
374 (Colo. 1991) (Such instructions “safeguard against the potential
for the jury’s misuse of the other-crime evidence.”). The court also
limited testimony regarding the details of the sexual relationship,
and the prosecutor followed this limitation when asking the
detective about the Pueblo incident in “a general sense,” even
interrupting to ensure “[we] keep it concise.”
¶ 23 Moreover, the prosecutor in closing argument did not
emphasize the Pueblo incident or that it involved a sexual
relationship. And defense counsel elicited testimony during cross-
examination that the girl in Pueblo had gone with Alvarenga
voluntarily and that Alvarenga was adamant that he did not know
her age. In light of all of these considerations, we discern no error.
11
C. The Edgewater Incident
¶ 24 Alvarenga also challenges the court’s admission of evidence
that, a month before the incident in this case, a concerned
individual called 911 to report a suspicious person in a vehicle who
was approaching a young female on foot in Edgewater (the
Edgewater incident). The detective testified that he traced the
vehicle to the registered owner’s apartment, where the owner
indicated that Alvarenga had been driving the car. The detective
also testified that he found Alvarenga at the apartment, but he was
not able to speak to him due to Alvarenga’s intoxication.
¶ 25 Alvarenga argues this evidence was inadmissible because
(1) the prosecution did not prove it occurred or that it was him; and
(2) it was based on hearsay, was unfairly prejudicial, and evidence
of his intoxication was irrelevant. We agree that evidence of this
incident was inadmissible but conclude the error was harmless.
¶ 26 At the outset, we agree with Alvarenga that the prosecution
failed to prove by a preponderance of evidence that the Edgewater
incident occurred or that he was involved. The only evidence
presented was the 911 caller’s statement that a suspicious
individual approached a young woman, but that statement was
12
offered by the detective, not the 911 caller. To the extent it was
offered to prove the truth of the matter asserted — that Alvarenga
approached a young woman — it was inadmissible hearsay. See
(hearsay is inadmissible because the declarant is not present to
explain the statement in context and to be cross-examined, so such
statements are presumptively unreliable).
¶ 27 The trial court determined that the prosecution met its burden
to prove the Edgewater incident through the vehicle owner’s
statement that Alvarenga had been driving the car. But the owner
said nothing of Alvarenga approaching a young woman on the
street. Apart from the 911 caller’s inadmissible hearsay
statements, there was no other evidence that the incident occurred
or that Alvarenga was involved. We therefore conclude the
prosecution did not meet its initial evidentiary burden, and the trial
court erred by admitting evidence of the Edgewater incident at
trial.
2
See Warren, 55 P.3d at 814.
2
Because this evidence should have been excluded, we need not
consider Alvarenga’s additional arguments that it was unfairly
prejudicial under CRE 404(b) or that the detective’s testimony
included an irrelevant reference to his intoxication.
13
¶ 28 Nevertheless, we conclude the court’s error in admitting
evidence of the Edgewater incident was harmless. As an initial
matter, the details of the Edgewater incident were relatively benign.
The jury only heard that Alvarenga approached a young woman, not
that he had sex with her (as in Pueblo) or menaced her with a blade
(as at the bus stop with B.O.).
¶ 29 Moreover, the jury verdicts convicting Alvarenga of the charged
offenses against B.O. were supported by overwhelming evidence.
This evidence included B.O.’s testimony that Alvarenga used a
blade and pressured her to get into his car, as well as evidence that
Alvarenga had approached B.O. on two prior occasions at the same
place, offering her a ride in a “forceful manner.” B.O. testified —
and her mother’s testimony confirmed — that she texted her mom
to call her when Alvarenga was questioning her and that she called
the police immediately after Alvarenga left. The jury also heard
evidence that B.O. was visibly afraid when police contacted her,
that she identified Alvarenga and Noles immediately, and that she
had a “visceral” reaction to seeing them.
¶ 30 As for Alvarenga’s credibility, the responding police officers
testified that he changed his story repeatedly, first telling them that
14
he was in the area to help out his aunt, who has a prosthetic leg,
and then saying he had been seeking B.O.’s help to find the hotel
he had reserved for a homeless couple. Alvarenga also changed his
story regarding the blade found at the scene — first stating that no
blade was involved, then stating that “it was a hundred percent
possible that his DNA was on that blade,” and then writing a letter
to the police chief alleging the blade had been planted at the scene
by police.
¶ 31 Based on all of this evidence and the minimal prejudice
associated with the Edgewater incident, we conclude that court’s
evidentiary error did not substantially influence the verdict or affect
the fairness of the trial and reversal is not warranted. See Hagos,
¶ 12.
D. No Cumulative Error
¶ 32 Alvarenga contends that the cumulative prejudicial effect of
the court’s errors in admitting the other act evidence requires a new
trial. To reverse, we must find that numerous errors have actually
(Colo. App. 2003). But we have only found one error in the other
act evidence — the admission of the Edgewater incident. Because
15
we have not found numerous errors, and the single error we found
did not affect the fairness of the trial proceedings, there was no
cumulative error. See Howard-Walker v. People, 2019 CO 69, ¶ 24.
IV. Hearsay and Confrontation
¶ 33 Finally, Alvarenga separately challenges the trial court’s
admission of hearsay, through the Edgewater detective’s testimony,
that the 911 caller reported the young female in Edgewater was “on
foot.” For the first time on appeal, he further asserts the court’s
admission of this testimony violated his right to confrontation.
¶ 34 Even assuming that, unlike the caller’s statements about the
Edgewater incident generally, the “on foot” statement was hearsay,
we conclude that any error was harmless. See Pernell v. People,
2018 CO 13, ¶ 22 (nonconstitutional harmless error applies to
preserved objections to hearsay). The detective properly testified
that the woman in Edgewater was approached in public by a man
driving a vehicle. That she was “on foot” was not prejudicial,
particularly given the fact that B.O. was not on foot but sitting at a
bus stop when she met Alvarenga.
¶ 35 For the same reason, we reject Alvarenga’s unpreserved
challenge under the Confrontation Clause. See Hagos, ¶ 14 (we
16
review unpreserved constitutional errors for plain error). Because
we have already concluded that any error in admitting the
statement is harmless, it necessarily cannot be substantial. Id.
(plain error must impair the reliability of the judgment of conviction
to a greater degree than under harmless error to warrant reversal).
V. Disposition
¶ 36 The judgment is affirmed.
JUDGE NAVARRO and JUDGE RICHMAN concur.
