Peo v. Martinez , 2020 COA 141 ( 2020 )

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
October 8, 2020
2020COA141
No. 17CA1583, Peo v Martinez — Evidence — Admissibility —
Victim Impact Evidence — Irrelevant Evidence Inadmissible
A division of the court of appeals considers whether victim
impact evidence is admissible during the guilt/innocence phase of a
sexual assault trial. The division holds that the trial court erred by
admitting victim impact evidence because the evidence did not
make any material fact or element of the offense more or less
probable and was thus inadmissible. Even though the trial court
erred by admitting the victim impact evidence, however, under the
circumstances of this case, the division concludes that the
admission of the evidence was harmless.
COLORADO COURT OF APPEALS 2020C0A141
Court of Appeals No. 17CA1583
City and County of Denver District Court No. 16CR710
Honorable Shelley I. Gilman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joseph Samuel Martinez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE LIPINSKY
Navarro and Tow, JJ., concur
Announced October 8, 2020
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Victim impact testimony packs a punch at a criminal trial.
Trial courts may understandably be inclined to give the victim and
the victim’s family the catharsis of describing the effect on them of
the crime with which the defendant is charged. But the
admissibility of such evidence can deprive the defendant of the right
to be judged based on the jury’s rational deliberation, rather than
on jurors’ visceral reaction upon hearing how the defendant’s
alleged acts affected the victim. “A fair and impartial jury is a key
element of a defendant’s constitutional right to a fair trial under
both the United States and Colorado Constitutions.” People v. Abu-
Nantambu-El, 2019 CO 106, ¶ 14, 454 P.3d 1044, 1047 (citations
omitted).
¶2 Today we decide that a trial court erred by allowing a jury to
hear victim impact evidence — “that evidence relating to the victim's
personal characteristics and to the physical, emotional, or social
impact of a crime on its victim and the victim's family,” Smith v.
State, 119 P.3d 411, 416 (Wyo. 2005) — during the guilt/innocence
portion of a sexual assault trial. The evidence had the potential to
shift the jury’s focus improperly from deciding whether the
defendant, Joseph Samuel Martinez, committed the crime to
1
whether a guilty verdict would assuage the trauma of A.R., the
victim.
¶3 Under the circumstances of this case, however, the admission
of the victim impact evidence constituted harmless error. The guilty
verdict rested on the jury’s implicit but necessary finding that
Martinez lacked credibility in claiming that A.R. had consented to
engage in sex with him. Thus, the admission of the victim impact
evidence did not affect Martinez’s substantial rights and there is no
reasonable probability that it contributed to his conviction.
¶4 We reject Martinez’s other arguments and affirm his judgment
of conviction entered on the jury verdict finding him guilty of sexual
assault on a victim incapable of appraising the nature of her
conduct.
I. Background Facts and Procedural History
A. The Incident
¶5 The trial in this case rested on a single factual dispute —
whether Martinez had known that A.R. was too intoxicated to
consent to sex. Every other material fact was undisputed.
¶6 A.R. recalled consuming three drinks in three hours at a
Denver bar. Her last memory of the evening was checking her
2
phone and using the restroom at the bar at around 9:00 p.m.
A.R.’s bank records reflected that she continued to make purchases
at the bar, in addition to the three drinks, as the evening wore on.
¶7 A.R. next remembered lying on the ground at a Regional
Transportation District (RTD) light-rail station. She recalled that an
RTD officer helped her board a train and that she felt “very
confused, very disoriented,” and “[v]ery, very drunk.” While on the
train, A.R. noticed that her sweatshirt was inside out and that she
was missing her identification card, bus pass, debit card, lunch
bag, and items she had purchased before visiting the bar. She later
discovered that her marijuana pipe and marijuana were also
missing. A.R. did not remember much about the initial train ride or
that she had transferred trains.
¶8 A.R. arrived at the light-rail station nearest her home shortly
before 2:00 a.m. She remembered borrowing a stranger’s cell phone
to call a cab. A.R. recalled that the cab driver was “nice,” but did
not remember the specifics of their conversation. When she
reached her home, A.R. awakened her mother to ask for money to
pay the cab driver. Because A.R. was “stumbling” and “slurring her
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words,” A.R.’s mother said she believed A.R. was “completely
drunk.”
¶9 The next day, after experiencing painful bowel movements and
seeing blood in the toilet, A.R. told her mother that she “th[ought]
something bad happened.” A.R. and her mother went to the
hospital, where A.R. underwent a sexual assault examination. A
nurse collected DNA, blood, and urine samples from A.R. The
examination revealed that A.R. had a small but “significant” rectal
tear, a small abrasion to her knee, and a sore thumb. The DNA
obtained during A.R.’s examination matched that of Martinez. A
DNA test of Martinez’s saliva confirmed the match.
¶ 10 When a detective notified A.R. of the DNA match and showed
A.R. a picture of Martinez, A.R. said she did not recognize him.
Based on this information, the prosecution charged Martinez with
one count of sexual assault on a victim incapable of appraising the
nature of her conduct, pursuant to section 18-3-402(1)(b), C.R.S.
2019.
B. Martinez’s Trial
¶ 11 At Martinez’s trial, A.R. and her mother testified about the
impact of the alleged sexual assault on A.R., including that,
4
following the incident, A.R. exhibited signs of depression and had a
“close suicidal scare.” Martinez’s counsel objected to the relevancy
of this testimony and, after the district court overruled his
objection, moved for a mistrial. The court denied Martinez’s
motion, but permitted him to cross-examine A.R. and her mother
on issues related to A.R.’s mental health. Martinez’s counsel
pursued this line of cross-examination.
¶ 12 In addition to discussing the impact of the alleged sexual
assault, A.R. testified that her light-rail commute from downtown
Denver typically took an average of between an hour and an
hour-and-a-half. On the night of the incident, however, it took A.R.
three hours and eleven minutes to return home from downtown
Denver.
¶ 13 The detective who investigated the alleged sexual assault
testified next. Although the prosecutor had neither designated him
nor qualified him as an expert witness, the detective testified that
A.R.’s injuries and demeanor during their interview were consistent
with the types of injuries and demeanor he had seen in other
victims of sexual assault.
5
¶ 14 An expert witness in the fields of “forensic toxicology” and “the
effect of alcohol and controlled substances on the human body” (the
toxicology expert) also testified for the prosecution. Based on the
level of alcohol in A.R.’s urine sample taken during her sexual
assault examination and the average alcohol elimination rate for a
female with A.R.’s weight, the toxicology expert opined that A.R.’s
peak blood alcohol concentration on the night of the incident had
been between 0.3 and 0.4 percent. The expert said that A.R. would
have had to consume between nine and eleven drinks over a
two-and-a-half-hour period to reach that level of intoxication.
¶ 15 The expert further opined that a person who has consumed
that amount of alcohol can “blackout,” meaning that he or she is
conscious but is not forming memories. The expert testified that
she would expect to see outward signs of impairment from a person
in a blackout state.
¶ 16 Finally, the prosecutor introduced into evidence
video-recordings from several RTD light-rail stations on the night of
the incident. The videos showed A.R. stumbling, falling while
crossing light-rail tracks, sleeping on station benches and
platforms, missing trains, and getting on a wrong train.
6
¶ 17 Martinez’s defense rested on his contention that he and A.R.
had engaged in consensual sex. He said that A.R. approached him
and a group of friends and asked one of his friends whether he
wanted to have sex with her. According to Martinez, after his friend
rejected A.R.’s advances, A.R. handed out marijuana to Martinez
and his friends and then had sex with him. He testified that he
spent between forty and fifty-five minutes conversing with A.R.
before they had sex. He said that A.R. “looked fine,” “was
coherent,” “was walking fine,” and that nothing about her
appearance made him believe that she was too drunk to know what
she was doing.
¶ 18 The cab driver who drove A.R. home from the light-rail station
testified that, while A.R. would “maybe fail a breathalyzer,” “she was
functioning just fine,” did not have any issues entering or exiting
the cab, did not have any problems communicating her address, did
not “pass out,” and did not vomit.
¶ 19 An expert in “forensic psychology related to alcohol, blackouts,
and memory impairment” (the psychology expert) also testified for
Martinez. The psychology expert opined that people can engage in
complex activities during blackouts and that blackouts can, but do
7
not always, cause “substantial impairments due to the alcohol.”
The expert further explained that people who experience blackouts
often try to fill in the gaps in their memory by creating false
memories that align with their assumptions and expectations of
themselves.
¶ 20 During closing argument, the prosecutor did not mention the
impact of the alleged sexual assault on A.R. Rather, the prosecutor
focused on two points. First, she argued that Martinez had tailored
his testimony about A.R.’s missing marijuana to fit the evidence he
had heard while attending the trial. Second, she asserted that,
regardless of the competing expert testimony and A.R.’s lack of
memory of the incident, the video-recordings from the light-rail
stations conclusively proved that, on the night of the incident, A.R.
exhibited outward signs of impairment that showed her incapacity
to appraise the nature of her conduct.
¶ 21 The jury found Martinez guilty of sexual assault on a victim
incapable of appraising the nature of her conduct. The district
court sentenced Martinez to an indeterminate sentence pursuant to
the Colorado Sex Offender Lifetime Supervision Act of 1998
(SOLSA). §§ 18-1.3-1001 to -1012, C.R.S. 2019.
8
II. Analysis
¶ 22 Martinez presents four principal arguments on appeal. He
contends that the district court erred by
(1) admitting irrelevant and highly prejudicial victim impact
evidence regarding A.R.’s depression and close suicidal
scare, and failing to grant his motion for a mistrial after
the jury heard the evidence;
(2) allowing the prosecutor to present a generic tailoring
argument during closing argument;
(3) admitting opinion testimony from the detective even
though he had neither been designated nor qualified as
an expert witness; and
(4) providing a revised theory of defense instruction over the
objection of Martinez’s counsel.
¶ 23 Martinez further asserts that, even if these errors do not
independently require reversal, their cumulative effect requires it.
Finally, Martinez advances a facial challenge to the constitutionality
of SOLSA.
9
A. Victim Impact Evidence
¶ 24 We agree with Martinez’s contention that the district court
erred by admitting evidence regarding A.R.’s depression and “close
suicidal scare” following the incident. However, we find that the
error was harmless and, thus, the court did not abuse its discretion
in denying Martinez’s motion for a mistrial.
1. Standard of Review
¶ 25 We review for an abuse of discretion a trial court’s evidentiary
rulings, People v. Stewart, 55 P.3d 107, 122 (Colo. 2002), as well as
its denial of a motion for mistrial, People v. Santana, 255 P.3d 1126,
1130 (Colo. 2011). “A trial court abuses its discretion when its
ruling is manifestly arbitrary, unreasonable, or unfair, or when it
misapplies the law.” People v. Williams, 2019 COA 32, ¶ 21, 446
P.3d 944, 950.
2. The Nonconstitutional Harmless Error Standard Applies
¶ 26 The parties disagree on the appropriate standard for our
review of the district court’s admission of the victim impact
evidence. Martinez contends that the constitutional harmless error
standard applies because the admission of the evidence violated his
rights to due process and a fair trial. In contrast, the People assert
10
that we review for nonconstitutional harmless error because any
error was evidentiary and not of a constitutional magnitude.
¶ 27 We agree with the People and hold that the nonconstitutional
harmless error standard applies to the district court’s evidentiary
rulings. Pernell v. People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673;
see State v. Maske, 591 S.E.2d 521, 528 (N.C. 2004) (reviewing the
admission of victim impact evidence for nonconstitutional harmless
error); Justice v. State, 775 P.2d 1002, 1011 (Wyo. 1989) (same); see
also People v. Flockhart, 2013 CO 42, ¶ 20, 304 P.3d 227, 233
(“Only those errors ‘that specifically and directly offend a
defendant’s constitutional rights are “constitutional” in nature.’”
(quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010))).
¶ 28 Under the nonconstitutional harmless error standard,
“reversal is warranted if the error affects the substantial rights of
the parties, meaning ‘the error substantially influenced the verdict
or affected the fairness of the trial proceedings.’” Zapata v. People,
2018 CO 82, ¶ 61, 428 P.3d 517, 530 (quoting Hagos v. People,
2012 CO 63, ¶ 12, 288 P.3d 116, 119). Thus, “[i]f we can say with
fair assurance that, in light of the entire record of the trial, the error
did not substantially influence the verdict or impair the fairness of
11
the trial, the error is harmless.” Id. at ¶ 62, 428 P.3d at 530; see
Pernell, ¶ 22, 411 P.3d at 673 (“[A]n objected-to trial error is
harmless if there is no reasonable possibility that it contributed to
the defendant’s conviction.”).
3. Legal Authority
¶ 29 Victim impact evidence is evidence that relates to “the victim’s
personal characteristics and to the physical, emotional, or social
impact of a crime on its victim and the victim’s family.”
Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010) (quoting Smith
v. State, 119 P.3d 411, 416 (Wyo. 2005)); see State v. Graham, 650
S.E.2d 639, 645 (N.C. Ct. App. 2007) (explaining that victim impact
evidence includes the physical, psychological, emotional, and
economic toll a crime takes on the victim and the victim’s family).
¶ 30 The United States Supreme Court decided more than three
decades ago that victim impact evidence is inadmissible because it
may be “wholly unrelated to the blameworthiness of a particular
defendant” and “could divert the jury's attention away from the
defendant’s background and record, and the circumstances of the
crime.” Booth v. Maryland, 482 U.S. 496, 504, 505 (1987),
overruled by Payne v. Tennessee, 501 U.S. 808 (1991).
12
¶ 31 But after a change in the composition of the Court, it reversed
course and held that, during the sentencing phase of a death
penalty trial, a prosecutor may present evidence of the impact of the
murder. Payne, 501 U.S. at 825 (holding that victim impact
evidence is admissible to remind the jury that “the victim is an
individual whose death represents a unique loss to society and in
particular to his family” (quoting Booth, 482 U.S. at 517) (White, J.,
dissenting)). The Colorado Supreme Court has cited Payne
approvingly. See People v. Dunlap, 975 P.2d 723, 744 n.14 (Colo.
1999) (holding that “evidence about the victim and about the impact
of the murder on the victim’s family is relevant to the jury’s decision
as to whether or not the death penalty should be imposed” (quoting
Payne, 501 U.S. at 827)).
¶ 32 No Colorado case has addressed the admissibility of victim
impact evidence during the guilt/innocence phase of a criminal
trial. But we need not decide today whether victim impact evidence
is ever admissible during the guilt/innocence phase of a criminal
case because we hold that, in this case, the victim impact evidence
was irrelevant and, thus, inadmissible.
13
¶ 33 Because “the effect of a crime on a [victim or the] victim’s
family often has no tendency to prove whether a particular
defendant committed a particular criminal act against a particular
victim,” such evidence is generally irrelevant during the
guilt/innocence phase of a trial. Graham, 650 S.E.2d at 645.
Thus, the admissibility of victim impact evidence during the
guilt/innocence phase of a trial turns on whether the evidence is
relevant to determining whether the defendant committed the crime
for which he or she was charged. See id.; Schreibvogel, 228 P.3d at
883; see also CRE 402 (irrelevant evidence is inadmissible); People
v. Clark, 2015 COA 44, ¶ 17, 370 P.3d 197, 204 (“In criminal cases,
evidence is relevant if the evidence makes it more or less probable
that a criminal act occurred, the defendant was the perpetrator, or
the defendant acted with the necessary criminal intent.”).
¶ 34 Thus, victim impact evidence is admissible only if it “tends to
show the context or circumstances of the crime itself.” Graham,
650 S.E.2d at 646. In Graham, a first degree burglary and assault
case, the appellate court considered whether the trial court had
erred in admitting, during the guilt/innocence phase of the trial,
evidence of the impact of the crimes on the mental health of the
14
victim’s mother. The Graham court concluded that admission of
the evidence was error, albeit harmless error, because the evidence
did not “have any tendency to prove that defendant was the
intruder . . . .” Id. at 646-47.
4. The District Court Erred by Admitting the Victim Impact
Evidence
¶ 35 After the prosecutor asked A.R. “how things have been
different for you since the night of the [sexual assault],” A.R.
testified,
Immediately following, I missed out on a lot of
work. I loved my job, but I ended up — there
were mornings where I couldn’t get out of bed.
I couldn’t move. I was in physical pain.
I ended up no-calling/no-showing to my job
three times in a row, so I was fired. My boss
sent a police officer to my house because she
was afraid I had killed myself.
I spent the next six months just circling the
drain for a long time. It wasn’t that I wanted
to kill myself; it was that I just wanted to turn
off. I wished there was a switch where I didn’t
have to feel or think or be conscious.
I had class two days a week, and school’s kind
of always been my safe place, a place where I
really excel. The other five days a week I spent
either sleeping too much, not sleeping at all,
eating too much, not eating at all. I was very,
very, very depressed, to say the least.
15
That following March . . . I did have a close
suicidal scare.
¶ 36 The prosecutor elicited similar testimony from A.R.’s mother:
[PROSECUTOR:] Now, I want to talk to you a
little bit about [A.R.’s] behavior after the
assault. Did you notice anything different
after the assault about her behavior?
[MOTHER:] She hibernated afterwards. She
went into her room and didn’t come out for an
extended period of time. She would come out,
go right back.
[PROSECUTOR:] Was this different than how
she behaved before?
[MOTHER:] Yes.
[PROSECUTOR:] Did you notice any signs of
depression?
[MOTHER:] Yeah. She quit going to work.
She quit hanging out with friends, taking her
dog on a walk. She just — she just closed
herself into the basement bedroom and
bathroom and made herself have a very small
world.
¶ 37 Martinez contends that this testimony was irrelevant because
it had no tendency to prove the contested issue at trial: whether he
“[knew] that [A.R. was] incapable of appraising the nature of [her]
conduct.” § 18-3-402(1)(b). Moreover, according to Martinez, the
16
evidence was highly prejudicial because it came from two witnesses
and likely elicited the jury’s sympathy for A.R.
¶ 38 In response, the People assert that the testimony did not
constitute victim impact evidence and, in any event, was relevant
because it showed “A.R.’s behaviors in the aftermath of her rape to
show her lack of recall of the events that occurred on the night of
the rape to counter [Martinez’s] claim that A.R. was cognizant of her
actions and consented to sex with him.” Thus, according to the
People, A.R.’s and her mother’s testimony was necessary “to show
that A.R. was so heavily intoxicated that she was incapable of
apprising the nature of her conduct, and, thus, she could not and
did not consent to have sex with [Martinez].”
¶ 39 As an initial matter, we hold that the testimony constituted
victim impact evidence because it described the “physical [and]
emotional” toll that the alleged sexual assault took on A.R. See
Schreibvogel, 228 P.3d at 883 (quoting Smith, 119 P.3d at 416).
¶ 40 We agree with Martinez that A.R.’s and her mother’s testimony
was irrelevant. The prosecutor did not establish at trial how A.R.’s
depression and “close suicidal scare” following the sexual assault
were relevant to any material fact. Specifically, the prosecutor did
17
not show that the victim impact evidence made any material fact or
element of the offense more or less probable. For example, the
evidence did not shed light on why the victim could not remember
anything between 9:00 p.m., when she was still at the bar, and
when she found herself lying on the ground at a light-rail station
hours later. And it did not tend to prove that Martinez possessed or
lacked the criminal intent to be found guilty of sexual assault. See
§ 18-3-402(1)(b); see also Justice, 775 P.2d at 1010 (“[The victims’]
discussion of the impact of the crime upon them could not in any
way serve to establish any of the elements of the crime . . . .”).
¶ 41 For these reasons, the district court erred by admitting A.R.’s
victim impact evidence.
5. The District Court’s Error in Admitting the Victim Impact
Evidence Was Harmless
¶ 42 Although the district court erred in admitting the victim
impact evidence, we hold that the error was harmless because, “in
light of the entire record of the trial, the error did not substantially
influence the verdict or impair the fairness of the trial.” Zapata,
¶ 62, 428 P.3d at 530.
18
¶ 43 The victim impact evidence constituted a minor portion of
Martinez’s trial. See People v. Whitman, 205 P.3d 371, 385 (Colo.
App. 2007). The prosecutor asked A.R. and her mother a total of
four questions regarding A.R.’s behavior following the sexual
assault. This questioning constituted, at most, a few minutes of
Martinez’s three-day trial. Moreover, the prosecutor did not refer to
or repeat this testimony at any other point of the trial, including
during her opening statement and closing argument. Thus, the
prosecutor did not unduly highlight the victim impact evidence or
direct the jury to convict Martinez because of it.
¶ 44 The district court also blunted the prejudicial force of the
victim impact evidence by permitting Martinez’s counsel to inquire
into A.R.’s mental health history on cross-examination. In doing so,
Martinez’s counsel established that A.R. had a history of depression
and alcohol use, thereby showing that her “close suicidal scare”
could have been caused by factors other than the alleged sexual
assault. Further, absent evidence to the contrary, we assume the
jury heeded the court’s instruction not to be influenced by
sympathy, bias, or prejudice in reaching its decision. See People v.
Villa, 240 P.3d 343, 352 (Colo. App. 2009).
19
¶ 45 Most significantly, the evidence of Martinez’s guilt was
overwhelming. The prosecutor’s closing argument focused on
Martinez’s lack of credibility and A.R.’s obvious impairment in the
video-recordings from the light-rail stations. Indeed, after
discussing the video-recordings, the prosecutor stated,
There’s nothing vague or speculative or
imaginary about what you just saw. It is real.
And we could have gone through this trial and
never presented [the toxicology expert] to you,
and you would have had enough evidence just
based on this video about [A.R.’s] level of
intoxication at the time that she encountered
[Martinez] and about her ability to consent.
¶ 46 Thus, contrary to Martinez’s characterization of the evidence,
this was not a he said/she said case that rested solely on two
individuals’ conflicting accounts. While Martinez’s counsel
challenged A.R.’s credibility, the prosecutor’s case did not rest on
whether the jury thought A.R. was believable. A.R. said she could
not recall her encounter with Martinez.
¶ 47 Rather, the prosecutor’s key evidence was the video-recordings
showing A.R. at the various light-rail stations following the incident.
Even setting aside the evidence of A.R.’s blood alcohol level at the
time of the incident, the video-recordings provided objective
20
evidence that could not be squared with Martinez’s testimony that
nothing about A.R. had caused him to believe she was too
intoxicated to consent to sex.
¶ 48 The video-recordings establish that A.R. was highly intoxicated
while at the light-rail stations. The videos depict an individual who
could not walk without stumbling, dropped to the ground for
approximately four minutes before pulling herself onto a bench,
tumbled while crossing light-rail tracks, fell asleep at two light-rail
stations — once on a bench and once while propped up against a
signpost, missed trains she needed to take to return home, and had
to be awakened by an RTD officer so she could board one of the last
trains leaving the station for the night. This evidence directly bore
on Martinez’s credibility because it allowed the jury to infer that
A.R. was highly intoxicated — and exhibited outward signs of
impairment — during her encounter with Martinez. See People v.
Bertrand, 2014 COA 142, ¶ 9, 342 P.3d 582, 584 (“The law makes
no distinction between direct and circumstantial evidence.”).
¶ 49 In sum, although the district court erred by admitting A.R.’s
victim impact evidence, the error was harmless in light of the
overwhelming evidence of Martinez’s guilt. “[T]here is no reasonable
21
possibility that [the victim impact evidence] contributed to [his]
conviction.” Pernell, ¶ 22, 411 P.3d at 673.
¶ 50 And because Martinez has failed to show that he was
substantially prejudiced by the admission of the victim impact
evidence, the district court did not abuse its discretion in denying
his motion for a mistrial. See People v. Ned, 923 P.2d 271, 275
(Colo. App. 1996) (holding that a defendant must show actual
prejudice to warrant reversal of a trial court’s denial of a motion for
mistrial).
B. The Prosecutor’s Comments on Martinez’s Credibility
¶ 51 Martinez asserts that reversal is required because the district
court permitted the prosecutor to present a generic tailoring
argument during closing, which “create[d] an unjustifiable inference
of guilt” based solely upon Martinez’s presence at trial. We
disagree.
1. Standard of Review
¶ 52 We review claims of prosecutorial misconduct under a
two-step analysis. Wend, 235 P.3d at 1096. “First, [we] must
determine whether the prosecutor’s questionable conduct was
improper based on the totality of the circumstances and, second,
22
whether such actions warrant reversal according to the proper
standard of review.” Id.
2. Preservation
¶ 53 The parties disagree whether Martinez preserved this issue for
appeal. Martinez contends that he preserved the issue through his
counsel’s objection that the prosecutor had engaged in burden-
shifting, thereby “alert[ing] the trial court to the potential
impropriety of the prosecutor’s closing argument.” Martinez v.
People, 244 P.3d 135, 140 (Colo. 2010). In response, the People
assert that Martinez failed to preserve the issue because his counsel
objected “on grounds different from those raised on appeal.” People
v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304.
¶ 54 Because we conclude that the prosecutor did not engage in
misconduct, we need not resolve this dispute. See Hagos, ¶ 9, 288
P.3d at 118 (explaining that preservation affects the standard of
review that we employ “to determine whether an error in criminal
proceedings necessitates reversal of the judgment of conviction”).
3. Legal Authority
¶ 55 A prosecutor may attack a defendant’s credibility during
closing argument as long as the attack is based on the evidence in
23
the record or a reasonable inference from that evidence. See
Martinez, 244 P.3d at 140-41; People v. Walters, 148 P.3d 331, 334
(Colo. App. 2006) (“[A] prosecutor has wide latitude and may refer to
the strength and significance of the evidence, conflicting evidence,
and reasonable inferences that may be drawn from the evidence.”).
The prosecutor may do so through a “tailoring argument,” in which
the prosecutor asserts that, by virtue of the defendant’s presence at
trial, the defendant “tailor[ed] his testimony to fit that of other
witnesses.” Martinez, 244 P.3d at 141-42.
¶ 56 While a prosecutor may not make generic tailoring arguments,
the prosecutor may make specific tailoring arguments. Id. “Generic
tailoring arguments occur when the prosecution attacks the
defendant’s credibility by simply drawing the jury’s attention to the
defendant’s presence at trial and his resultant opportunity to tailor
his testimony.” Id. These arguments are improper because “they
are not based on reasonable inferences from evidence in the
record,” and they imply that the defendant is less believable
because he or she exercised the right of confrontation and upheld
his or her statutory duty to be present at trial. Id.; see People v.
Knapp, 2020 COA 107, ¶¶ 58-59, ___ P.3d ___, ___ (deciding that
24
the prosecutor made an improper generic tailoring argument by
telling the jury that the defendant “got to sit and listen to the
evidence, and then testify, based upon the evidence heard in
court”); see also Crim. P. 43(a).
¶ 57 In contrast, a specific tailoring argument is “tied to evidence in
the record. In such circumstances, it is reasonable for the jury to
draw inferences regarding the credibility of the defendant.”
Martinez, 244 P.3d at 141; see State v. Weatherspoon, 212 A.3d
208, 221 (Conn. 2019) (holding that prosecutor’s reference to
conflicting versions of events offered by sexual assault victim and
by defendant, followed by suggestion that defendant’s version was
fabricated, constituted specific tailoring because the argument was
“tied to evidence that supported such an inference”).
4. The Prosecutor Did Not Present a Generic Tailoring Argument
¶ 58 During closing argument, the prosecutor argued,
the defendant also wants you to believe that
when the true target of [A.R.’s] affection . . .
rebuffed her advances twice, that she was
completely unfazed. This drunken girl didn’t
think a thing of it, and instead what she
started doing was passing out her weed,
passing out her weed like candy to every
person who was standing there, not to smoke
25
it; that might make a little bit of sense. But
nobody smoked.
[Martinez] can’t tell you that, because there’s
no evidence that there is marijuana in [A.R.’s]
urine results. And so, instead, he tells you
this unrealistic story that she just, out of the
kindness of her heart, decides to pass out her
weed to everybody. Well, why? Why does he
have to tell you that story? Well, because
that’s the thing that she’s missing.
Because, otherwise, how does he explain the
one thing that’s missing from her stuff, right?
Unless he’s gone through it. That’s the
alternative. So instead, she just passed it out
like candy, and that’s the explanation for why
she no longer has that or her pipe at the end of
the event.
¶ 59 We disagree with Martinez’s assertion that the prosecutor’s
comments constituted a generic tailoring argument. Although the
prosecutor argued that Martinez tailored his testimony to fit other
witnesses’ testimony, the prosecutor tied her argument to evidence
in the record. Martinez, 244 P.3d at 141-42. She specifically
referenced Martinez’s testimony concerning A.R.’s missing
marijuana and pipe and asked the jury to infer that Martinez’s
account lacked credibility. This was a proper specific tailoring
argument. See id.; People v. Constant, 645 P.2d 843, 845-46 (Colo.
1982) (“Counsel can with propriety comment on how well and in
26
what manner a witness measures up to the tests of credibility set
forth in the [jury] instruction.”); Weatherspoon, 212 A.3d at 221
(providing example of specific tailoring). Thus, the district court did
not err by permitting the prosecutor to present a tailoring
argument.
C. The Detective’s Testimony
¶ 60 Martinez contends that the district court plainly erred by
permitting the prosecutor to elicit expert testimony from the
detective without designating or qualifying the detective as an
expert witness. We conclude that the detective’s testimony was
improper, but, given the detective’s qualifications and the
unsurprising nature of his testimony, we hold that the admission of
the testimony did not constitute plain error.
1. Standard of Review
¶ 61 We review a trial court’s evidentiary rulings, including the
admission of expert testimony, for an abuse of discretion.
Venalonzo v. People, 2017 CO 9, ¶¶ 15, 24, 388 P.3d 868, 873, 875.
“A trial court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or when it misapplies the law.”
Williams, ¶ 21, 446 P.3d at 950.
27
¶ 62 Unless the error was structural (which Martinez does not
argue here), we review errors that were not preserved by timely
objection for plain error. Hagos, ¶ 14, 288 P.3d at 120. Plain error
is “obvious and substantial.” Id. “We reverse under plain error
review only if the error ‘so undermined the fundamental fairness of
the trial itself so as to cast serious doubt on the reliability of the
judgment of conviction.’” Id. (quoting People v. Miller, 113 P.3d 743,
750 (Colo. 2005)).
2. Legal Authority
¶ 63 A trial court abuses its discretion by admitting expert
testimony under the guise of lay opinion. Stewart, 55 P.3d at 124
(“[W]here . . . an officer’s testimony is based not only on [his]
perceptions and observations of the crime scene, but also on [his]
specialized training or education, []he must be properly qualified as
an expert before offering testimony that amounts to expert
testimony.”). “[S]uch a substitution subverts the disclosure and
discovery requirements of [the rules of criminal procedure] and the
reliability requirements for expert testimony.” Id. at 123 (quoting
United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)); see
Crim. P. 16(I)(a)(1)(III) (providing that “[t]he prosecuting attorney
28
shall make available to the defense . . . [a]ny reports or statements
of experts made in connection with the particular case”).
¶ 64 In Venalonzo, the supreme court discussed the distinction
between lay and expert testimony, explaining that
[t]ogether, CRE 701 and 702 distinguish lay
testimony from expert testimony. CRE 701
defines the scope of lay witness opinion
testimony. It provides that lay witness
testimony in the form of opinions or inferences
must be “(a) rationally based on the perception
of the witness, (b) helpful to a clear
understanding of the witness’[s] testimony or
the determination of a fact in issue, and (c) not
based on scientific, technical, or other
specialized knowledge within the scope of
[CRE] 702.” CRE 702, on the other hand,
concerns the admissibility of expert testimony.
Under this rule, “[i]f scientific, technical, or
other specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience,
training, or education, may testify thereto in
the form of an opinion or otherwise.”
¶ 18, 388 P.3d at 874 (citation omitted); see CRE 701 & 702.
¶ 65 The Venalonzo court held that, “in determining whether
testimony is lay testimony under CRE 701 or expert testimony
under CRE 702, the trial court must look to the basis for the
opinion.” Venalonzo, ¶ 23, 388 P.3d at 875. A witness offers lay
29
testimony if the testimony “could be expected to be based on an
ordinary person’s experiences or knowledge,” while a witness offers
expert testimony if the testimony “could not be offered without
specialized experiences, knowledge, or training.” Id. This inquiry
“depends on the facts and surrounding circumstances of the case
and ‘requires a case-by-case analysis of both the witness and the
witness’s opinion.’” Id. at ¶ 17, 388 P.3d at 874 (quoting United
States v. Smith, 591 F.3d 974, 982-83 (8th Cir. 2010)).
3. The District Court Erred by Allowing the Detective to Present
Expert Testimony
¶ 66 Martinez’s counsel filed a pretrial motion requesting the
disclosure of the prosecution’s expert witnesses under Rule
16(I)(a)(1)(III). The prosecutor did not endorse the detective as an
expert witness.
¶ 67 The detective began his testimony by summarizing his
background, training, and experience, stating that he
• “went through a six-month police academy”;
• “worked in the patrol division . . . for approximately seven
years”;
30
• contacted “hundreds” of intoxicated people while
working;
• received on-the-job training and “continuing education”
classes;
• had worked as a sex crimes detective for over four years;
• took part in “special training” to learn how to investigate
sexual assaults; and
• had investigated “close to 500” sex assault cases in his
career.
Despite this testimony regarding the detective’s background,
training, and experience, the prosecutor did not seek to qualify him
as an expert witness.
¶ 68 After testifying about his investigation of A.R.’s case, the
detective responded to a question about A.R.’s demeanor: “she went
through different phases, like most people do . . . .” He added that,
based on his interviews of “a fair number of victims,” A.R.’s
response was not “surprising.”
¶ 69 The following exchange occurred later during the detective’s
examination:
31
[PROSECUTOR:] Now, you said earlier you’ve
been involved in about 500 sex assault
investigations. In your training and
experience, is it usual for a victim of a sex
assault to not have significant physical
injuries?
[DETECTIVE:] No. Again, much like
reactions, depending on the circumstances of
the sexual assault, we don’t expect to see,
necessarily, injuries, unless there’s an
indication that there was some sort of physical
attack, as well.
Again, depending upon the circumstances . . .
when we talk about things like what would
commonly be referred to as “date rape” or
situations like that, or circumstances in which
people are what’s labeled “victim incapable”
. . . where they’re inebriated or drugged or
something to that effect, you’re not necessarily
going to see an injury. There’s no expectation
for that one way or the other.
[PROSECUTOR:] Okay. And specifically on
those “victim incapable” cases you talked
about, where the victim was too intoxicated, is
it your experience that there would be little or
no injury?
[DETECTIVE:] Generally speaking, there
wouldn’t be, because they’re not in a position
to offer any kind of physical resistance.
¶ 70 We conclude that the detective’s opinions amounted to
impermissible expert testimony because such testimony “could not
be offered without specialized experiences, knowledge, or training.”
32
Id. at ¶ 23, 388 P.3d at 875. An “ordinary person” does not possess
the requisite “experiences or knowledge” to testify about the type or
extent of injuries resulting from a sexual assault or the victim’s
demeanor during a police interview following a sexual assault. See,
e.g., State v. Fortin, 917 A.2d 746, 757 (N.J. 2007) (“We do not
presume that the ordinary juror would have knowledge of the
typical injuries inflicted during a . . . sexual assault.”); see also
People v. Rincon, 140 P.3d 976, 983 (Colo. App. 2005) (holding that
an officer may testify as a lay witness about topics that may be
resolved by “simple common sense and logic”). Rather, a person
could be expected to possess this information only if he or she had
been specially trained or otherwise had experience with sexual
assaults; under these circumstances, “common sense and logic” do
not provide answers to the prosecutor’s questions.
¶ 71 Indeed, immediately before the detective testified about these
topics, the prosecutor emphasized the detective’s specialized
training and experience. The detective then compared his
observations regarding A.R.’s case to his experience with the
hundreds of other sexual assault cases he had investigated. See
People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011) (“[E]xperts may
33
testify concerning whether a victim’s behavior or demeanor is
consistent with the typical behavior of victims of abuse.”). Given
that the detective could have gathered the information supporting
his testimony only through his “specialized experiences, knowledge,
[and] training,” he offered expert testimony. Venalonzo, ¶ 23, 388
P.3d at 875. And because the prosecutor failed to endorse the
detective as an expert witness, the detective’s testimony was
improper. See Crim. P. 16(I)(d); Stewart, 55 P.3d at 124.
¶ 72 Thus, the district court abused its discretion by permitting the
detective to testify about the injuries and demeanor that victims of
sexual assault typically display. See Williams, ¶ 21, 446 P.3d at
950 (“A trial court abuses its discretion . . . when it misapplies the
law.”).
4. The Admission of the Detective’s Testimony Did Not Constitute
Plain Error
¶ 73 We review Martinez’s challenge to the detective’s testimony
under the plain error standard because Martinez’s counsel did not
make a contemporaneous objection to the testimony. See Hagos,
¶ 14, 288 P.3d at 120. In determining whether the admission of the
detective’s opinion testimony resulted in plain error, we consider
34
whether the detective was qualified to offer those opinions based on
his training and experience. See People v. Conyac, 2014 COA 8M,
¶ 67, 361 P.3d 1005, 1021; People v. Malloy, 178 P.3d 1283,
1288-89 (Colo. App. 2008); see also People v. Lomanaco, 802 P.2d
1143, 1145 (Colo. App. 1990) (holding that there was no plain error
in the admission of unendorsed expert testimony when the witness
was qualified to provide that testimony).
¶ 74 We discern no plain error for three reasons. First, the
detective was qualified to provide the opinions. Through his
investigations of “close to 500” sexual assault cases over more than
four years, the detective undoubtedly gained the experience
necessary to testify about the typical injuries of victims of sexual
assault, as well as sexual assault victims’ behavior and demeanor
during police interviews.
¶ 75 Second, the failure of Martinez’s counsel to object to the
detective’s testimony or request a continuance after the jury heard
it “belies any claim that he was surprised or prejudiced by [such]
testimony.” People v. Brown, 313 P.3d 608, 617 (Colo. App. 2011).
¶ 76 Third, as discussed in detail above, the evidence against
Martinez was overwhelming. See supra Part II.A.5; see also Miller,
35
113 P.3d at 750 (holding that a trial court’s error “does not
normally constitute plain error . . . where the record contains
overwhelming evidence of the defendant’s guilt”).
¶ 77 We therefore conclude that there was no plain error because
the district court’s failure to sua sponte exclude the detective’s
expert testimony did not “undermine[] the fundamental fairness of
the trial itself so as to cast serious doubt on the reliability of the
judgment of conviction.” Hagos, ¶ 14, 288 P.3d at 120 (quoting
Miller, 113 P.3d at 750).
D. Martinez’s Theory of Defense Instruction
¶ 78 Martinez asserts that the district court erred by refusing to
give the jury his tendered theory of defense instruction. We discern
no error.
1. Standard of Review
¶ 79 We review a trial court’s decision to modify a tendered theory
of defense instruction for an abuse of discretion. People v. Bruno,
2014 COA 158, ¶ 18, 342 P.3d 587, 591; see People v. Lee, 30 P.3d
686, 689 (Colo. App. 2000) (“The trial court has substantial
discretion in the drafting of a theory of defense instruction.”).
36
¶ 80 In analyzing whether the trial court abused its discretion, we
review the instructions as a whole to determine whether the jury
was “adequately informed of the defendant’s theory of defense.”
People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999).
2. Legal Authority
¶ 81 “[A]n instruction embodying a defendant’s theory of the case
must be given by the trial court if the record contains any evidence
to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo.
1992). “A proper theory of the case instruction should explain a
defendant’s view of what the evidence shows, must be general and
brief, and must instruct the jury on the legal effect of the
explanation.” People v. Meads, 58 P.3d 1137, 1138 (Colo. App.
2002), aff’d, 78 P.3d 290 (Colo. 2003).
¶ 82 A trial court may refuse to give an instruction that is
“argumentative, contains errors of law, merely reiterates portions of
the evidence, or is encompassed within the other instructions.”
Lee, 30 P.3d at 689; see Dore, 997 P.2d at 1221-22 (“The trial court
may reject a theory of the case instruction which tends to be
argumentative or calls attention to specific evidence.”). If the trial
court refuses to give an instruction, it “has an affirmative obligation
37
to cooperate with counsel to either correct the tendered theory of
the case instruction or to incorporate the substance of such in an
instruction drafted by the court.” Nunez, 841 P.2d at 265.
3. The District Court Did Not Err by Modifying Martinez’s
Tendered Theory of Defense Instruction
¶ 83 Martinez’s counsel tendered the following theory of defense
instruction:
[o]n the evening of June 29, 2015 [Martinez]
was hanging out, drinking alcohol and
smoking marijuana in a park in lower
downtown with a small group of friends. Later
in the evening [A.R.] approached Mr. Martinez
and his friends. [A.R.] first attempted to
engage in a sexual relationship with Mr.
Martinez’s friend J.K. After, she learned that
he had a girlfriend and wasn’t interested in
engaging in a sexual relationship with her she
began speaking more exclusively with
Mr. Martinez. After a period of time
Mr. Martinez and [A.R.] agreed to separate
from the group to engage in consensual sex.
While Mr. Martinez observed some slight signs
of impairment from [A.R.] there wasn’t
anything about her words or physical
demeanor to indicate to him that she was not
fully aware of what she was saying a [sic]
doing.
¶ 84 Noting that “theories of the case should not be argumentative,”
the district court declined to give Martinez’s tendered instruction.
Instead, over the objection of Martinez’s counsel, the court modified
38
the instruction to read, “[i]t is Mr. Martinez’s theory of the case that,
although he observed signs of impairment from [A.R.], [A.R.]
engaged in a consensual sexual relationship with him.”
¶ 85 The district court did not abuse its discretion by rejecting and
modifying Martinez’s theory of defense instruction. As the court
correctly noted, the final sentence in Martinez’s tendered
instruction was argumentative. Additionally, the instruction was
not “general and brief” and did not “instruct the jury on the legal
effect of the explanation.” Meads, 58 P.3d at 1138. Rather, by
focusing solely on Martinez’s testimony, the instruction “merely
reiterate[d] portions of the evidence” that were favorable to him.
Lee, 30 P.3d at 689; see Dore, 997 P.2d at 1221-22. Martinez was
not entitled to a theory of defense instruction that unduly
emphasized his trial testimony that nothing about A.R.’s actions or
demeanor indicated that she was not fully aware of her actions.
See People v. Baird, 66 P.3d 183, 194 (Colo. App. 2002) (“[A] trial
court may refuse an instruction if it . . . unduly emphasizes
particular evidence . . . .”).
¶ 86 The district court’s redrafted instruction was proper because it
excised the problematic components of Martinez’s tendered
39
instruction while providing Martinez’s theory of defense that A.R.
did not appear to be incapable of appraising the nature of her
conduct when he and A.R. had sex. The court fulfilled its obligation
under Nunez to include “the substance” of Martinez’s tendered
instruction in the final jury instruction and, thus, did not err in
doing so. 841 P.2d at 265.
E. Cumulative Error
¶ 87 Martinez asserts that the trial court’s cumulative errors
deprived him of a fair trial. We disagree.
¶ 88 The supreme court discussed the applicability of the
cumulative error doctrine in Howard-Walker v. People, explaining
that “[t]hough an error, when viewed in isolation, may be harmless
or not affect the defendant’s substantial rights, reversal will
nevertheless be required when ‘the cumulative effect of [multiple]
errors and defects substantially affected the fairness of the trial
proceedings and the integrity of the fact-finding process.’” 2019 CO
69, ¶ 24, 443 P.3d 1007, 1011 (quoting People v. Lucero, 200 Colo.
335, 344, 615 P.2d 660, 666 (1980)). The court added, “[f]or
reversal to occur based on cumulative error, a reviewing court must
identify multiple errors that collectively prejudice the substantial
40
rights of the defendant, even if any single error does not. Stated
simply, cumulative error involves cumulative prejudice.” Id. at
¶ 25, 443 P.3d at 1011 (citation omitted).
¶ 89 Here, although we identified two errors, there is no reversible
cumulative error because those errors did not substantially
prejudice Martinez’s right to a fair trial, as discussed above. See
supra Parts II.A.5, II.C.4. Even when we view the errors in
combination, given the overwhelming evidence of guilt, we cannot
conclude “that the cumulative effect of the errors substantially
prejudiced [Martinez’s] right to a fair trial.” People v. Mendenhall,
2015 COA 107M, ¶ 82, 363 P.3d 758, 775; see also Conyac, ¶ 152,
361 P.3d at 1030 (“[A]lthough we have found some errors, because
we do not perceive that they substantially prejudiced defendant’s
right to a fair trial, there is no reversible cumulative error.”).
F. SOLSA’s Constitutionality
¶ 90 In attacking the constitutionality of SOLSA, Martinez concedes
two points: divisions of this court have rejected facial challenges to
SOLSA’s constitutionality, see, e.g., People v. Lehmkuhl, 117 P.3d
98, 108 (Colo. App. 2004), and he did not advance this argument
before the district court. He nonetheless contends that SOLSA
41
violates separation of power principles and his right to due process,
right of equal protection, right against cruel and unusual
punishment, and right against self-incrimination. Martinez,
however, fails to explain how SOLSA violates his constitutional
rights and how the divisions that previously addressed this issue
erred. We therefore decline to depart from the decisions affirming
SOLSA’s constitutionality, see, e.g., People v. Sabell, 2018 COA 85,
¶ 47, 452 P.3d 91, 100, and hold that the district court did not
plainly err in sentencing Martinez under the mandates of SOLSA.
III. Conclusion
¶ 91 Martinez’s judgment of conviction is affirmed.
JUDGE NAVARRO and JUDGE TOW concur.
42