23CA0628 Peo v Arredondo 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0628 City and County of Denver District Court No. 21CR6352 Honorable Adam J. Espinosa, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Roberto Arredondo,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Moultrie and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Polansky Law Firm, PLLC, Lisa A. Polansky, Boulder, 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. 2024. ¶1 Defendant, Roberto Arredondo, appeals the district court’s
judgment of conviction entered on jury verdicts finding him guilty of
one count of sexual assault and two counts of violation of a
protective order.1 We affirm.
I. Background
¶2 Arredondo’s wife, A.V., alleged that on September 11, 2021,
Arredondo sexually assaulted her at their home. Arredondo came
into the bedroom A.V. had been using after a fight between them in
August (discussed in more detail below). They argued, and A.V.
started recording on her phone. Arredondo grabbed A.V., took the
phone out of A.V.’s hand, and threw it. A.V. told Arredondo she
didn’t want anything to do with him and to get out. He responded,
“You’re mine and I can do whatever I want with you.”
¶3 Arredondo “forcefully” took off A.V.’s clothes, over her repeated
demands to stop. Then he forced her down onto the bed, with her
hands behind her back, and “put his penis in [her] vagina.” A.V.
1 The People assert that Arredondo only challenges his sexual
assault conviction. But we read several of his appellate contentions as applying equally to his violation of a protection order convictions.
1 repeatedly told him to let her go. He didn’t. The assault lasted
between ten and twenty minutes.
¶4 Based on this assault, the People charged Arredondo with
sexual assault (knowingly causing sexual intrusion or penetration
without the victim’s consent) under section 18-3-403(1)(a), C.R.S.
2024.
¶5 Three days after the September 11 assault, A.V. obtained a
civil protection order against Arredondo prohibiting him from,
among other things, coming to the home. (A.V. had filed for
dissolution of the marriage on August 24, 2021.) Twice in October,
Arredondo came to the home.
¶6 Based on those two incidents, the People charged Arredondo
with two counts of violation of a protection order under section
18-6-803.5(1), C.R.S. 2024.
¶7 At trial, Arredondo’s theory of defense was that he and A.V.
had consensual sex on September 11; A.V. had fabricated the
allegation that she had been sexually assaulted. Initially, according
to Arredondo, A.V. accused him of sexual assault because she
wanted to divorce him and had been waiting until the “time was
right” to “hit him where it hurts.” Accusing Arredondo of sexual
2 assault allowed A.V. to get a protection order — meaning she would
have some breathing room to proceed with the divorce. Later, after
learning that she could avoid having to wait in Mexico for her
application for legal residence to be processed if Arredondo was
convicted of a felony — and she was the victim — she leaned into
the sexual assault allegation. As defense counsel put it, she was
taking advantage of the situation to further her desire to obtain
legal United States residency. But, counsel argued, A.V.’s story
kept changing and she claimed not to remember things she should
have been able to remember. That, coupled with her motive to
accuse Arredondo, showed that she was making up the allegation of
sexual assault.
¶8 A jury found Arredondo guilty of all three charges.
II. Discussion
¶9 Arredondo contends that the court erred by (1) admitting
evidence of his behavior toward A.V. and the volatile nature of their
relationship, including evidence of a previous confrontation between
him, A.V., and A.V.’s adult daughters in August 2021; (2) denying
his attorney’s motions for a mistrial after two jurors learned of
A.V.’s health scare, resulting in her going to the hospital during the
3 trial; (3) allowing a law enforcement officer to give expert opinions in
the guise of lay testimony; and (4) allowing the prosecution’s
domestic violence expert to testify about irrelevant matters, bolster
A.V.’s credibility, and rely on racial stereotypes. He also contends
that (5) the evidence was insufficient to support his sexual assault
conviction and (6) the errors identified above constitute cumulative
error requiring reversal. We address and reject each of these
contentions in turn.
A. “Character Assassination” Evidence
¶ 10 Arredondo contends that much of the evidence admitted at
trial was irrelevant and unduly prejudicial, amounting to nothing
more than “character assassination.” His arguments are somewhat
diffuse, often presented in a scattershot and conclusory fashion. All
suffer from a surfeit of hyperbole. But we have done our best to
ferret out Arredondo’s precise points of disagreement with the
court’s evidentiary rulings.
1. Standard of Review
¶ 11 We review a district court’s evidentiary rulings for an abuse of
discretion. Nicholls v. People, 2017 CO 71, ¶ 17. A court abuses its
discretion in this context when its decision is manifestly arbitrary,
4 unreasonable, or unfair or based on a misunderstanding or
misapplication of the law. People v. Jones, 2025 COA 43, ¶ 19.
¶ 12 If a challenge to a court’s evidentiary ruling was preserved by
timely objection, we review any error — that is, any abuse of
discretion — for harmless error. People v. Zapata, 2016 COA 75M,
¶ 38, aff’d, 2018 CO 82. But if a challenge wasn’t preserved by
timely objection on the same grounds raised on appeal, we review
any error for plain error. Hagos v. People, 2012 CO 63, ¶ 14.
¶ 13 Some of Arredondo’s evidentiary challenges were preserved.
Some weren’t. And the parties don’t entirely agree as to which ones
were and which ones weren’t. We address preservation as to
Arredondo’s challenges only where necessary.
2. Failure to Apply Spoto
¶ 14 Arredondo first contends that the district court allowed the
prosecution to introduce extensive evidence about the nature of the
relationship and physical and verbal abuse through A.V. and her
adult daughters without analyzing it under the four-part test for
admitting evidence of other acts articulated in People v. Spoto, 795
P.2d 1314, 1318 (Colo. 1990). The record doesn’t support this
contention.
5 ¶ 15 The prosecution filed a notice of its intent to introduce
evidence of other acts under CRE 404(b) and section 18-6-801.5,
C.R.S. 2024, based on the contents of an interview with A.V. The
court held a hearing on the motion. Expressly applying the Spoto
test, the court ruled admissible evidence of an incident on A.V.’s
birthday (and the following morning) during which Arredondo had
taken advantage of her after she had consumed so much alcohol
she wasn’t aware of what he was doing. Arredondo told her that
because she was his wife, he “can do anything he wants.” But the
court excluded other prior acts evidence.
¶ 16 The prosecutor argued that there was other evidence of
occasions when Arredondo had sexually assaulted A.V. and had
told her he could do whatever he wanted to her because she was his
wife, and that this evidence was disclosed in the report of the
interview. The court then thanked the prosecutor for pointing that
out and ruled that any such evidence was also admissible. The
court found expressly that the evidence satisfied the Spoto test.
¶ 17 The prosecutor then argued that additional evidence the
prosecution wished to present — including testimony by the
daughters — about the history of the relationship, threats, and
6 control was relevant to Arredondo’s defense that A.V. had fabricated
the allegations, as evidenced in part by her delay in reporting the
September 11 sexual assault. Specifically, the evidence would
explain why A.V. waited until she did to come forward. The court
ruled that this evidence about the nature of the relationship and
other incidents of physical and verbal abuse would be allowed.
¶ 18 As Arredondo points out, the court didn’t reference Spoto when
ruling on the admissibility of this last fund of evidence. But the
context clearly indicates that the court was aware of the Spoto test,
knew that test applied to all the evidence in question, and that this
evidence was admissible for the same reasons as the other evidence
of other incidents.
3. The August 2021 Incident
¶ 19 A.V. learned in August 2021 that Arredondo was having an
affair with her sister. She and her daughters confronted Arredondo
about the affair. They argued. Heatedly. Arredondo tried to punch
one of the daughters; A.V. and another daughter intervened and
Arredondo threatened to punch A.V. One of the daughters recorded
part of the argument, during which Arredondo threatened A.V.
7 ¶ 20 A.V. told Arredondo to leave the house. He did. But he
returned a few days later. A few days after this argument, A.V. filed
for dissolution of marriage.
¶ 21 Arredondo argues that the testimony about the August 2021
confrontation and the recording were inadmissible under CRE
404(b) because the evidence “had no tendency to prove an element
of the offense” and had “no logical relevance independent of the
impermissible inference that [he] had a bad and violent character.”
We don’t agree.
¶ 22 CRE 404(b)(1) provides that evidence of other acts is
inadmissible to show that a defendant has a bad character and
acted in conformity therewith. But such evidence “may be
admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” CRE 404(b)(2). The General
Assembly has expressly recognized that evidence of other acts may
be particularly relevant in cases involving sex offenses. As
pertinent to this case, such evidence may be relevant to refute
defenses such as consent or recent fabrication. § 16-10-301(1)-(3),
C.R.S. 2024. And the General Assembly has approved the
8 admissibility of other acts of domestic violence in prosecutions
involving domestic violence to give necessary context to the charged
act and the victim’s behavior. § 18-6-801.5.
¶ 23 Whenever the prosecution seeks to admit other acts evidence
extrinsic to the charged offense, it must satisfy, and the court must
analyze, each prong of the four-part Spoto test.2 That test asks
whether (1) the evidence relates to a material fact; (2) the evidence
is logically relevant; (3) the logical relevance is independent of the
inference that the defendant acted in conformity with a bad
character; and (4) the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice. Spoto,
795 P.2d at 1318.
¶ 24 As we read Arredondo’s challenge to evidence of the August
2021 altercation, he argues that it fails the second and third prongs
of the Spoto test.
¶ 25 The evidence was logically relevant. To the extent Arredondo
asserts that it wasn’t because it didn’t directly prove “an element of
the offense,” that assertion is misguided. The evidence need only be
2 We will assume that the August 21 evidence was extrinsic to the
charged offenses.
9 “somehow probative of an ultimate fact.” Yusem v. People, 210 P.3d
458, 464 (Colo. 2009); see Jones, ¶ 23. The evidence was probative
of the ultimate fact of whether Arredondo sexually assaulted A.V.
because it tended to show Arredondo’s knowledge and intent as well
as to rebut Arredondo’s defenses of consent and recent fabrication.
See Jones, ¶ 26 (collecting cases); People v. Cross, 2023 COA 24,
¶¶ 10-15; People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009);
People v. Fry, 74 P.3d 360, 370-71 (Colo. App. 2002), aff’d, 92 P.3d
970 (Colo. 2004); § 16-10-301(3); § 18-6-801.5(3).
¶ 26 And this relevance was independent of the impermissible
inference. Spoto “does not demand the absence of the inference”; it
“merely requires that the proffered evidence be logically relevant
independent of that inference.” People v. Snyder, 874 P.2d 1076,
1080 (Colo. 1994). To be sure, the evidence cast Arredondo in a
bad light. But it also shed light on Arredondo’s actions on
September 11 and A.V.’s lack of consent and delay in reporting the
assault.
¶ 27 The district court therefore didn’t abuse its discretion by
admitting this evidence.
10 4. Other Evidence of Other Acts
¶ 28 Next, Arredondo challenges the district court’s admission of
testimony by A.V. and her two adult daughters about his “threats;
physical abuse; vile language; controlling personality; homophobia;
and infidelity.” He argues that none of this evidence had any
relevance “independent of the impermissible inference that [he] had
a bad and violent character” (Spoto prong 3) and that any probative
value the evidence had was substantially outweighed by the danger
of unfair prejudice (Spoto prong 4).
¶ 29 Largely for the reasons discussed in the preceding section, we
reject this argument. With one possible exception, the evidence had
independent relevance to the issues of Arredondo’s knowledge and
intent and A.V.’s alleged consent and delay in reporting.3 And
3 One of A.V.’s daughters testified that Aredondo “discriminated
against [her] because of my sexual orientation because I like women. And he, in fact, threatened to send me back to Mexico because of my sexual preference for liking women.” Arredondo’s attorney didn’t object. This testimony was arguably irrelevant to any issue in the case. But any error in allowing that testimony wasn’t plain because it was an isolated remark in the midst of several days of testimony and other evidence, and the prosecution didn’t rely on it. It therefore doesn’t cast serious doubt on the reliability of the judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.
11 although the evidence had some potential for unfair prejudice,
ascribing to the evidence its maximum probative value and
minimum unfair prejudice, see Yusem, 210 P.3d at 467, we
conclude that it didn’t have an undue tendency to suggest a verdict
on an improper basis. See Cross, ¶ 26.4
B. Denial of Motions for a Mistrial
¶ 30 Arredondo contends that the district court abused its
discretion by denying his attorney’s motions for a mistrial based on
two jurors learning that A.V. was treated by medical personnel
during the trial. We disagree.
4 Arredondo contends that one of A.V.’s daughters improperly
testified that he raped A.V. On cross-examination, defense counsel asked A.V.’s daughter about conversations she had with A.V. and Detective Gomez. Defense counsel asked, “And [A.V.] had told you that Roberto tried to rape her?” She answered, “Not that he tried. That he had raped her.” He subsequently asked, “And during that conversation [with Detective Gomez] you told her what was relayed to you was he tried to do something inappropriate?” She responded, “Honestly, I don’t remember if I said that. But like I said, he didn’t try. He did it.” Her responses, to which counsel didn’t object, indicated that defense counsel was trying to put words into her mouth and was misrepresenting what A.V. had told her. Those responses were foreseeable and therefore any challenge to their admissibility is barred as invited error. See People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009).
12 1. Additional Facts
¶ 31 During cross-examination of A.V., the court ordered a recess
at the prosecutor’s suggestion. As a juror later indicated, A.V. had
become upset and was “kind of leaning over kind of like maybe she
was hyperventilating.”
¶ 32 After the jury left the courtroom, the court said it was going to
ask medical personnel to attend to A.V. They did so, ultimately
transporting her to the hospital.
¶ 33 Following the thirty-five-minute recess, defense counsel moved
for a mistrial, arguing that the jury had been “tainted with
sympathy . . . by what they observed.” After the prosecutor
responded, the court denied the motion because it wasn’t convinced
that the defense had been prejudiced. According to the court, A.V.
“got upset, she appeared to by crying. She turned her seat around,
almost as if not to cry in front of the jury.” No juror had seen what
subsequently happened in the courtroom.
¶ 34 When the trial recommenced, the prosecution called another
witness. (The court told the jury that the defense would continue
cross-examining A.V. “at a later point.”) A.V. testified the following
day, without incident.
13 ¶ 35 During deliberations, juror A.D.G. sent a note to the court
which said, “I saw who I believe was [A.V.] leave in an ambulance
yesterday while we were on a break. Is this information I can share
with the other jurors[?]” Defense counsel renewed his motion for a
mistrial. The court questioned A.D.G. on the record outside the
other jurors’ presence. A.D.G. said she had shown the foreperson
the question. The court asked, “Seeing this information, does this
cause you any concern about your ability to be fair and impartial to
both sides in this case?” A.D.G. answered, “No. I wouldn’t — I was
a little surprised to see it, but not shocked because of what we’d
seen in the courtroom.”
¶ 36 In response to questioning by the prosecutor, A.D.G. said she
was alone on a floor below where the trial was taking place when
she saw A.V. on a stretcher leaving the building. She didn’t
actually see her being loaded into an ambulance. She assumed
A.V. was “basically okay” because the court said A.V. would finish
testifying the next day. The prosecutor asked A.D.G. whether there
was “[a]nything about sort of that observation of [A.V.] that would
lead you not to be able to follow [the instruction that neither
sympathy nor prejudice should influence her decision]?” A.D.G.
14 said, “No.” She also said “no” when the prosecutor asked her
whether anything about the event “would prejudice you against the
[d]efense?” A.D.G. also confirmed that although she had seen the
emotion in the courtroom, she “wasn’t overly concerned” about A.V.
¶ 37 Defense counsel also questioned A.D.G. A.D.G. said that no
other juror had heard her discuss the question with the foreperson.
And she said none of the jurors had said anything about A.V.’s
show of emotion in the courtroom. When defense counsel pressed
A.D.G. about her response to the court’s question whether she
could still be fair and impartial, A.D.G. said, “Oh, yes. I misspoke if
I said I couldn’t be fair and impartial.”
¶ 38 The court told A.D.G. not to tell other jurors what had been
discussed.
¶ 39 The court then called in the foreperson for questioning. He
confirmed that he had read A.D.G.’s question. He hadn’t shared it
with any of the other jurors or seen what A.D.G. had seen. He also
confirmed that the incident wouldn’t affect his ability to be fair and
impartial, saying, “I don’t see it as relevant to our decision.” When
the prosecutor asked him whether A.D.G.’s question or anything he
had seen in court would prejudice him in the case, he said, “No.”
15 Defense counsel didn’t ask the foreperson any questions. The court
told the foreperson not to discuss the matter with any of the jurors.
¶ 40 The court then addressed defense counsel’s renewed motion
for a mistrial. The court denied it, saying it was “convinced that
these jurors can be fair and impartial to both sides.”
2. Applicable Law and Standard of Review
¶ 41 “A mistrial is the most drastic of remedies. It is only
warranted where the prejudice to the accused is too substantial to
be remedied by other means.” People v. Collins, 730 P.2d 293, 303
(Colo. 1986) (citation omitted).
¶ 42 The court has broad discretion to grant or deny a mistrial
motion, and we won’t disturb its decision absent a showing by the
defendant of a gross abuse of discretion and prejudice to the
defense. People v. Owens, 2024 CO 10, ¶ 125; Collins, 730 P.2d at
303.
3. Analysis
¶ 43 In the somewhat analogous context of emotional outbursts by
witnesses, the Colorado Supreme Court and a division of this court
have affirmed trial courts’ denials of mistrial motions in
circumstances arguably more extreme than those in this case.
16 Owens, ¶¶ 130-34; People v. Ned, 923 P.2d 271, 276-77 (Colo. App.
1996); cf. People v. Dominguez-Castor, 2020 COA 1, ¶¶ 94-97
(affirming denial of motion for mistrial after a juror fainted while
viewing autopsy photos of the victim). In Ned, a division also cited
several decisions affirming the denial of mistrial motions when
witnesses became distraught. Ned, 923 P.2d at 276.
¶ 44 In this case, the court took care to determine what jurors had
seen and whether they could remain impartial. The court was
entitled to take these jurors at their word that they could. See
Dominguez-Castor, ¶ 97.
¶ 45 Arredondo’s assertions of prejudice are entirely speculative.
For instance, he speculates that other jurors may have seen A.V.
being taken to the ambulance. Nothing in the record supports this
assertion; indeed, the record created by the court undermines it.
And Arredondo’s conclusory assertion that what the jurors saw in
the courtroom “clearly impacted them into the following day and
into the courtroom” is pure conjecture. A.D.G.’s responses to
questions by the court and counsel bely any such conclusion. The
fact that A.V. returned to the courtroom the following day to finish
testifying, and did so without incident, also reduced the possibility
17 of the jurors basing their decision on sympathy for the victim. See
People v. Gladney, 570 P.2d 231, 235 (Colo. 1977) (the mere
possibility of prejudice isn’t sufficient to warrant reversal of the
denial of a mistrial; an appellate court won’t “speculat[e] . . . to find
that the defendant was prejudiced”); People v. Raehal, 971 P.2d
256, 260 (Colo. App. 1998) (“[T]his court must give deference to the
findings of the trial court, based on its observation of courtroom
occurrences, rather than engage in abstract speculation to find
prejudice.”).
¶ 46 Arredondo argues, however, that the court should have
questioned the other jurors to determine whether any of them had
also seen A.V. being wheeled to the ambulance. But defense
counsel didn’t ask the court to do so. And when the court asked
defense counsel whether he wanted the court to answer A.D.G.’s
question for the jury, he said “no.” Given A.D.G.’s answers, there is
no indication that any of the jurors saw this event.
¶ 47 Arredondo also argues that the court should have given the
jury a “curative instruction” concerning what they had seen in the
courtroom. But the court offered to consider such an instruction if
defense counsel would propose one. Defense counsel didn’t take
18 the court up on the offer, arguably waiving this argument. In any
event, the court didn’t abuse its discretion by failing to give an
instruction that defense counsel didn’t request. See People v.
Mersman, 148 P.3d 199, 204 (Colo. App. 2006) (where defense
counsel didn’t ask the court to give a curative instruction, the court
didn’t abuse its discretion by denying the motion for a mistrial); see
also People v. Van Meter, 2018 COA 13, ¶¶ 10-15.
¶ 48 In sum, we conclude that the district court didn’t abuse its
discretion by denying defense counsel’s motions for a mistrial.
C. Expert Testimony by Lay Witness
1. Additional Background
¶ 49 Detective Denise Gomez testified about her role in the
investigation leading to the charges. At the time she was involved
in the investigation, she worked in the police department’s sex
crimes unit. At the beginning of her testimony, the prosecutor had
her describe her experience and training, including her training
concerning sex crimes in the domestic violence context. She
explained that the training illustrated the importance of
understanding “the cycle of domestic violence” and “the mindset of
the victim that you are going to be interviewing as well as the
19 suspect.” The prosecutor asked her whether she had “training in
sort [sic] of trauma and how that might affect retention or memory.”
She said she had. The prosecutor then asked her whether “part of
your training [was] that victims of trauma can have challenges with
sequencing and details and memory.” Detective Gomez responded,
“It’s called trauma brain, yes, and, yes, there’s actually a term for
it.” The prosecutor then asked her, “In your experience with
interviewing victims of domestic violence and sexual assault, do
they have challenges with recounting specific timelines and details
of events?” Detective Gomez responded, “Yes.”
¶ 50 The prosecutor then turned to Detective Gomez’s investigation
of the case, specifically her interviews of A.V. and two of A.V.’s
daughters. At one point, the prosecutor asked her whether A.V.
had a “sort of disconnect or some confusion” in understanding and
responding to questions. She said, “Yes.” When the prosecutor
asked her what she attributed that to, Detective Gomez said,
“Trauma brain.”
¶ 51 Defense counsel didn’t object to any of this testimony. Indeed,
on cross-examination, defense counsel asked Detective Gomez a
series of questions about how “trauma brain” can occur, how it can
20 manifest itself, and the difficulty a person who has experienced
trauma may have in compartmentalizing information or
remembering things.
¶ 52 On redirect, the prosecutor asked, “[A]s counsel was asking
you some of these questions about trauma brain, fair to say that
this is complex neuroscience?” Detective Gomez said, “It is.” The
prosecutor went on to question Detective Gomez about how trauma
victims can have difficulty providing complete and accurate
timelines and details of events. Defense counsel objected to one of
these questions — about the effect of “prolonged trauma” — on
relevance grounds, arguing that the case was about “one incident.”
The court overruled that objection. Detective Gomez went on to
testify, in response to the prosecutor’s questions, how a person’s
brain may “shut down” when the natural “fight or flight” response
kicks in. And she explained the concept of “disassociation,” where
a person is “just not mentally there,” and the brain “shuts down”
and doesn’t remember what happened. The prosecutor prefaced
some of his questions on redirect with whether Detective Gomez
could answer based on her “training and experience” or, sometimes,
21 just her “experience.” Other than the one relevance objection noted
above, defense counsel didn’t object to any of this testimony.
¶ 53 The prosecutor didn’t mention “trauma brain” in closing. But
defense counsel did. Defense counsel argued that the prosecution
had introduced the concept of “trauma brain” only in an attempt to
explain errors in Detective Gomez’s report — errors resulting from
A.V. providing incorrect information in terms of timing and detail —
and gaps in A.V.’s testimony. Counsel went on to say, “I’m not an
expert, but I’ve been doing criminal law for a long time. I’ve never
heard of this term.” He argued that the inconsistencies and
erroneous details in A.V.’s story weren’t “because of trauma brain.”
Rather, they were a byproduct of her inventing a story of sexual
2. Analysis
¶ 54 On appeal, Arredondo contends that the court plainly erred by
allowing Detective Gomez to testify about “trauma brain” and how it
could have affected A.V.’s ability to accurately describe the events of
September 11 because that testimony was expert testimony, and
the prosecution didn’t endorse Detective Gomez as an expert.
22 ¶ 55 As to defense counsel’s cross-examination questioning, of
which Arredondo now complains, we conclude that any error was
invited. And as to all the testimony of which Arredondo now
complains, any error was waived.
¶ 56 Arredondo concedes that this contention is entirely
unpreserved. But he asks us to review for plain error. The People
respond that any error was invited, precluding review even for plain
error. Alternatively, the People argue that any error wasn’t plain.
¶ 57 We have “an independent, affirmative duty to determine
whether a claim is preserved and what standard of review should
apply, regardless of the positions taken by the parties.” Forgette v.
People, 2023 CO 4, ¶ 15 (quoting People v. Tallent, 2021 CO 68,
¶ 11).
¶ 58 The doctrine of invited error prevents a party from complaining
on appeal about an error that he injected into the case. People v.
Rediger, 2018 CO 32, ¶ 34. If a party invited an error, we won’t
review the issue at all, even for plain error. See People v. Gross,
2012 CO 60M, ¶ 12.
¶ 59 Waiver is “the intentional relinquishment of a known right or
privilege.” Rediger, ¶ 39 (emphases and citation omitted). “A waiver
23 may be explicit, as, for example, when a party expressly abandons
an existing right or privilege, or it may be implied, as when a party
engages in conduct that manifests an intent to relinquish [the] right
or privilege or acts inconsistently with its assertion.” Forgette, ¶ 28.
“Waiver extinguishes error and therefore appellate review.” People
v. Roberson, 2025 CO 30, ¶ 13; accord Rediger, ¶ 40.
¶ 60 By repeatedly asking Detective Gomez on cross-examination
about “trauma brain,” defense counsel invited any error relating to
Detective Gomez’s responses to those questions because those
responses were directly responsive to the questions and foreseeable.
See People v. Wittrein, 221 P.3d 1076, 1082 (Colo. 2009).5
¶ 61 And Arredondo’s counsel waived any error with respect to
these subjects. Counsel didn’t merely fail to object when Detective
Gomez brought up the concept on direct; on cross-examination he
5 Arredondo argues that Wittrein doesn’t apply because, in that
case, defense counsel first brought up the problematic issue — “hyper-reporting” — during cross-examination, whereas in this case, the prosecution first asked Detective Gomez about “trauma brain.” But in Wittrein, the prosecutor first brought up the concept of “hyper-reporting” when questioning the prosecution’s expert on direct, without objection, and defense counsel questioned the expert about that concept on cross-examination. Wittrein, 221 P.3d at 1081.
24 asked several questions of Detective Gomez about the causes and
effects of “trauma brain.” The record shows that defense counsel
had a strategic reason for doing so. The primary line of defense was
that A.V. fabricated the allegation of sexual assault, and that this
was evidenced, in part, by her incomplete, changing, and factually
implausible accounts of the assault. Counsel appears to have
posited that the prosecution brought up the concept of “trauma
brain” in a desperate attempt to explain those problems with A.V.’s
story, thereby inadvertently betraying the weakness of its case.
¶ 62 Arredondo contends that this “was an oversight on the part of
defense counsel, if not incompetence.” But any question whether
counsel’s strategy amounted to ineffective assistance must be
raised in a Crim. P. 35(c) proceeding. Gross, ¶ 11.
¶ 63 Because Arredondo’s counsel invited, in part, and waived, in
toto, any claim of error with respect to Detective Gomez’s purported
expert testimony, we won’t address it on the merits.
D. Improper Testimony by Domestic Violence Expert
¶ 64 Arredondo contends that the district court erred by allowing
the prosecution’s expert witness on domestic violence — Jennifer
Walker — to give testimony that wasn’t helpful to the jury, didn’t fit
25 the facts of the case, and bolstered A.V.’s credibility. We don’t
agree.
¶ 65 The prosecution called Walker to testify as a generalized expert
in the dynamics of domestic violence. (Defense counsel didn’t
object.) She hadn’t reviewed any materials related to the case or
met A.V. See People v. Cooper, 2021 CO 69, ¶ 1 n.1 (explaining
“generalized expert”); People v. Coons, 2021 CO 70, ¶ 53 (“[T]he
point of generalized expert testimony is to educate the jury about
generic concepts and principles without regard for the specific facts
of the case.”).
¶ 66 Walker began her substantive testimony by explaining the
“coercive pattern of power and control tactics” in domestic violence
environments. To illustrate the concept, she referred to the “power
and control wheel,” which describes a number of ways one person
can control another in the domestic context. (The wheel was
admitted as an exhibit.) See Coons, ¶¶ 34-36 (explaining and
depicting the power and control wheel).
¶ 67 Walker explained that understanding these dynamics helps
people understand why a victim’s behavior in response to domestic
26 violence may seem counterintuitive. She then discussed several of
the slices on the wheel — economic abuse, coercion and threats,
emotional abuse, using children — in general terms. In response to
the prosecutor’s questions, she explained that these power and
control dynamics can cause a victim to delay reporting (or not
report at all) an incident of domestic violence and can make it
difficult for a victim to remember things or place events in the
correct sequence.
¶ 68 On appeal, Arredondo argues that particular aspects of
Walker’s testimony were improper.
2. Standard of Review
¶ 69 “We review a trial court’s admission of expert testimony for an
abuse of discretion and will reverse only when that decision is
manifestly erroneous.” People v. Rector, 248 P.3d 1196, 1200 (Colo.
2011); accord Cooper, ¶ 44. “This is a deferential standard that
reflects the superior opportunity a trial court has to assess both the
competence of an expert witness and whether that witness’s
anticipated opinions would be helpful to the jury.” Cooper, ¶ 44.
¶ 70 Because defense counsel didn’t object to any of the testimony
with which Arredondo now takes issue, if we conclude that any
27 testimony was admitted in error, we will reverse only if the error
was plain. People v. Relaford, 2016 COA 99, ¶ 36.
¶ 71 Arredondo argues first that Walker’s testimony about
prolonged emotional abuse wasn’t helpful to the jury, see CRE 702,
because it didn’t help the jury determine whether he assaulted A.V.
on September 11 or went to his home in violation of the protection
order. But the testimony was relevant to explaining why A.V.
delayed reporting the assault and why there may have been gaps or
discrepancies in her story, and it was used for those purposes. It
was therefore directly relevant to rebutting Arredondo’s defense of
fabrication. See Cooper, ¶ 47 (“Proffered expert testimony is helpful
if it ‘will assist the fact finder to either understand other evidence or
to determine a fact in issue.’” (quoting Lanari v. People, 827 P.2d
495, 502 (Colo. 1992))); accord CRE 702; see also Cooper, ¶¶ 52-53
(generalized expert testimony fits a case if it has a sufficient logical
connection to the factual issues to be helpful without being unduly
prejudicial; “the fit need not be perfect”).
¶ 72 Arredondo also contends that Walker used statistics to bolster
A.V.’s credibility. But the testimony to which he cites doesn’t
28 support his position. Walker testified that “about 70 percent of [her
domestic violence crisis center] clients have never had any law
enforcement contact” and “99 percent” of victims say emotional
harm lasts longer than physical harm. The first statistic concerned
how domestic violence victims often delay reporting violence or don’t
report at all, an issue that, again, went directly to refuting
Arredondo’s defense. And the other was used to explain the long-
term emotional harm of emotional abuse which, again, helped to
explain A.V.’s behavior. Walker never opined on A.V.’s credibility or
the credibility of domestic violence victims generally. The fact her
testimony may have given the jury information which it could use to
assess A.V.’s credibility didn’t render it inadmissible.
¶ 73 Next, Arredondo argues that Walker’s testimony about
“cultural components” wasn’t helpful, was highly prejudicial, and
“hinged on highly racist and damaging stereotypes of Latino men.”
Not so.
¶ 74 Walker testified that persons from certain cultures may be
reluctant to report abuse because (1) the victim may be
undocumented; (2) distrust of law enforcement is prevalent; or (3)
keeping problems inside the family is typical. She didn’t identify
29 any particular culture, nor did she mention (even implicitly) “Latino
men.” Her testimony was devoid of any “racist stereotype.” It was
helpful for the same reason as her testimony about emotional abuse
— it could help the jury to understand why A.V. delayed reporting
the assault.
¶ 75 We therefore conclude that the district court didn’t abuse its
discretion by admitting any of the challenged expert testimony.
E. Sufficiency of the Evidence
¶ 76 Arredondo contends that the evidence was insufficient to
support his sexual assault conviction. But his contention is
premised on the inadmissibility of evidence discussed above.
Because we have rejected Arredondo’s challenges to that evidence,
his challenge to the sufficiency necessarily fails.
¶ 77 In any event, as the People point out, A.V.’s testimony about
the assault itself was sufficient on its own to support the verdict.
Contrary to Arredondo’s implicit assertion, corroboration of A.V.’s
account wasn’t necessary. See Kogan v. People, 756 P.2d 945, 951
(Colo. 1988) (testimony of the victims, if accepted as true, provided
sufficient evidence for conviction on charges of sexual assault on a
child).
30 F. Cumulative Error
¶ 78 Lastly, Arredondo contends that even if the errors he asserts
don’t individually require reversal, they do when considered
cumulatively. We have found only one possible error — the court’s
admission of A.V.’s daughter’s testimony about Arredondo’s
displeasure with her sexual orientation. Having concluded that
there weren’t multiple errors, the cumulative error doctrine doesn’t
apply. Jones, ¶ 56; People v. Daley, 2021 COA 85, ¶ 142.
III. Disposition
¶ 79 The judgment is affirmed.
JUDGE MOULTRIE and JUDGE GRAHAM concur.