24CA0971 Peo v Church 01-22-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0971 Mesa County District Court No. 15CR114 Honorable Gretchen B. Larson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Larry D. Church,
Defendant-Appellant.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE YUN Grove and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 22, 2026
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Larry D. Church, appeals the postconviction
court’s order denying his Crim. P. 35(c) motion. We affirm and
remand the case for correction of the mittimus.
I. Background
¶2 Based on allegations involving nine victims (S.Y., S.R., J.D.,
J.N., J.M.N., K.K., C.C., A.D., and C.D.), a jury convicted Church of
twenty counts: one count of sexual assault; one count of unlawful
sexual contact; five counts of sexual assault on a child; two counts
of sexual assault on a child — pattern of abuse; six counts of sexual
assault on a child by one in a position of trust; two counts of sexual
assault on a child by one in a position of trust — pattern of abuse;
one count of incest; one count of aggravated incest; and one count
of invasion of privacy for sexual gratification.
¶3 The trial court sentenced Church to a cumulative
indeterminate term of ninety years to life in the custody of the
Department of Corrections (DOC).
¶4 On direct appeal, a division of this court vacated one of the
sexual assault on a child convictions and otherwise affirmed the
judgment. People v. Church, (Colo. App. No. 16CA2189, June 13,
2019) (not published pursuant to C.A.R. 35(e)). The mandate
1 issued on March 31, 2020. Because this conviction was vacated,
Church’s cumulative DOC sentence was reduced on remand to
eighty-four years to life.
¶5 In 2021, Church timely filed a pro se motion for a
proportionality review of his sentence and requested the
appointment of counsel. Almost two years later, postconviction
counsel filed a supplemental Crim. P. 35(c) motion, asserting
multiple ineffective assistance of trial counsel claims and again
requesting a proportionality review of Church’s sentence.
¶6 The postconviction court denied Church’s motion without a
hearing.
II. Discussion
¶7 Church contends that the postconviction court erroneously
denied his ineffective assistance of counsel claims alleging that
counsel (1) failed to object to testimony that he was incarcerated;
(2) failed to protect his right to a public trial; and (3) pressured him
into a decision not to testify. Church has abandoned the remaining
claims raised in his postconviction motion by not pursuing them on
appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO
83.
2 A. Standard of Review
¶8 We review de novo the denial of a Crim. P. 35(c) motion
without a hearing. People v. Cali, 2020 CO 20, ¶ 14. “We may
affirm the postconviction court’s ruling on any ground supported by
the record, whether or not the postconviction court relied on or
considered that ground.” People v. Cooper, 2023 COA 113, ¶ 7.
¶9 In a Crim. P. 35(c) proceeding, a judgment of conviction is
presumed valid, and the defendant bears the burden of proving an
entitlement to postconviction relief. People v. Corson, 2016 CO 33,
¶ 25. To obtain a hearing on a postconviction motion, the
defendant must assert specific facts that, if true, would provide a
basis for relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo.
1988).
¶ 10 A Crim. P. 35(c) motion may be denied without a hearing when
“the motion and the files and record of the case show to the
satisfaction of the court that the defendant is not entitled to relief.”
Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations
are bare and conclusory; (2) the allegations, even if true, do not
warrant relief; or (3) the record directly refutes the defendant’s
claims. People v. Duran, 2025 COA 34, ¶ 15.
3 B. Ineffective Assistance of Counsel Law
¶ 11 A criminal defendant is constitutionally entitled to effective
assistance of counsel. Ardolino v. People, 69 P.3d 73, 76 (Colo.
2003). To succeed on an ineffective assistance claim, the defendant
must establish that (1) counsel’s performance was deficient,
meaning it fell below an objective standard of reasonableness; and
(2) counsel’s deficient performance prejudiced the defendant,
meaning that a reasonable probability exists that, but for counsel’s
deficient performance, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007). A
postconviction court may reject an ineffective assistance claim if the
defendant failed to demonstrate either deficient performance or
prejudice. See People v. Aguilar, 2012 COA 181, ¶ 9.
C. Failure to Object to Testimony that Church Was Incarcerated
¶ 12 In his motion, Church asserted that there were “multiple
direct references by several witnesses” to his incarceration. He
cited testimony from four witnesses on the sixth day of trial:1
1 In his opening brief, Church attempts to bolster the allegations for
this claim by presenting additional testimony mentioning his
4 1) A patrol sergeant testified regarding Church’s arrest
warrant, the circumstances surrounding his arrest, and
his transport to and intake at the jail.
2) One of Church’s stepdaughters testified that Church
shaved his head “[o]nce he was incarcerated” and that
she had told her daughter that “[g]randpa is gone right
now and that he is sick.”
3) One of Church’s daughters testified that she learned
about the allegations against him from her son who told
her that her “dad had got arrested.”
4) C.D. testified that she had informed her mother about
the sexual contact when Church “was in prison.”
¶ 13 Church argued that counsel performed deficiently by not
objecting to this testimony and that the failure to object prejudiced
him because it undermined his presumption of innocence.
incarceration and arguing that the postconviction court should have considered these instances as well. But we do not consider a defendant’s attempts to use his appellate brief to “fortify . . . issues inadequately raised or supported” by the Crim. P. 35(c) motion. People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996).
5 ¶ 14 The postconviction court denied this claim because Church
focused exclusively on testimony that was largely “fleeting and
relatively vague” (with the exception of the sergeant’s testimony)
and that occurred on a single day of the eight-day trial. The court
also found the claim was conclusory and speculative because
Church failed to sufficiently allege prejudice.
¶ 15 Comments about a defendant’s custodial status are generally
improper. People v. James, 40 P.3d 36, 41 (Colo. App. 2001),
overruled in part on other grounds by McDonald v. People, 2021 CO
64. But “[t]he mere reference to an accused’s incarceration is not
necessarily so prejudicial as to require a new trial,” and “[t]he
circumstances of each case must be reviewed to determine
prejudice to the defendant.” People v. Griffin, 985 P.2d 15, 21 (Colo.
App. 1998). Substantial evidence of a defendant’s guilt means a
jury is less likely to reach a guilty verdict based on an
impermissible reference to the defendant’s criminality. People v.
Everett, 250 P.3d 649, 662 (Colo. App. 2010).
¶ 16 We need not address the performance prong of Strickland
because Church cannot establish prejudice given the substantial
evidence of his guilt. See id.; Aguilar, ¶ 9. The jury heard
6 testimony from all nine victims regarding the allegations against
him:
• Seven of the victims testified that Church touched their
vaginas (S.Y., C.C., K.K., A.D., J.N., J.M.N., and C.D.).
• S.Y. testified that he also digitally penetrated her vagina
and licked her anus.
• J.M.N. testified that he also touched her chest, broke into
the bathroom while she was showering, digitally
penetrated her vagina, and had sexual intercourse with
her.
¶ 17 In addition, nine witnesses testified that certain victims had
disclosed some of Church’s behaviors to them before trial:
• S.Y.’s boyfriend testified that S.Y. told him she woke up
to Church “playing with her vagina.”
• J.D. testified that S.Y. told her S.Y. woke up with her
pants down, and Church was “doing things to her.”
• C.C. testified that K.K. told her Church had “touched
[K.K.] on her private”; J.M.N. told her Church had
touched J.M.N.’s vagina and broken into the bathroom
7 while J.M.N. was showering; and S.R. told her Church
had touched S.R.’s vagina.
• C.C.’s mother testified that (1) J.D. told her S.Y. had
woken up to Church “touching her,” and (2) C.C. told her
Church had been touching C.C. for years.
• K.K.’s mother testified that K.K. told her Church had
touched K.K.
• A.D.’s grandmother testified that A.D. told her Church
had touched A.D.
• J.N.’s mother testified that J.N. told her Church had
touched J.N. on her “crotch” or “private area.”
• J.M.N.’s stepmother testified that J.M.N. told her Church
would come into the bathroom when J.M.N. was
showering.
¶ 18 Further, the jury viewed forensic interviews with C.C., J.M.N.,
K.K., A.D., S.R., J.N., and C.D. during the testimony of the
investigator and forensic interviewer. Despite some discrepancies,
the victims’ interview statements were largely consistent with their
trial testimony. And although S.R. declined to testify about the
allegations against Church in detail, in her forensic interview she
8 said that he touched her “private part” with his hand and that she
disclosed this to C.C.
¶ 19 Moreover, by the time the witnesses mentioned Church’s
custodial status, the jury already knew Church had been arrested
in this case. C.C. and J.M.N. had previously testified about Church
being arrested or in jail, including in response to defense counsel’s
questions on cross- and recross-examination. See Griffin, 985 P.2d
at 21 (concluding that the jury learning the defendant was “in
detention” did not warrant a mistrial in part because “the jury was
already aware that defendant had at some point been arrested for
the crimes for which he was on trial”).
¶ 20 Furthermore, the jury acquitted Church of four out of twenty-
four counts involving J.D., C.D., and J.M.N. (incest, unlawful
sexual contact, sexual assault on a child, and invasion of privacy
for sexual gratification). This demonstrates that testimony
regarding his incarceration did not substantially influence the
verdict. See People v. Compos, 2019 COA 177, ¶ 39 (“The verdict of
acquittal on some counts but not others indicates that the jury was
able to separate the facts and law applicable to each charge and it
9 did not blindly convict based on prejudicial testimony.”), aff’d in
part and vacated in part, 2021 CO 19.
¶ 21 Under these circumstances, we conclude the references to
Church’s arrest or incarceration were not so prejudicial that there
is a reasonable probability that the jury may have acquitted him
had it not heard those portions of the witnesses’ answers. See
Everett, 250 P.3d at 662-63. Therefore, counsel’s failure to object to
the testimony did not prejudice Church.
¶ 22 For these reasons, we discern no error in the denial of this
claim without a hearing.
D. Failure to Protect Church’s Right to a Public Trial
¶ 23 S.R. appeared at trial pursuant to the prosecution’s subpoena.
The prosecutor informed the trial court that S.R. did not want to
testify. The court questioned S.R., who said she did not want to
testify because she did not “feel comfortable talking about it.” The
court advised S.R. that she was required to testify under the
subpoena. The court and prosecutor then engaged in the following
colloquy:
[PROSECUTOR]: Just for the record, I did ask people in the gallery to leave the courtroom at S.R.’s request. I informed them that they were
10 not required to do that, but I would appreciate it if they would. And, they all left voluntarily.
THE COURT: Okay.
[PROSECUTOR]: [The] courtroom is still open and unlocked.
THE COURT: Yeah, it was. Did you ask them that when S.R. is testifying that they not come back in?
[PROSECUTOR]: I did, Your Honor.
THE COURT: Okay. All right. And, did you explain to them that it is their right to stay, but they have voluntarily left?
[PROSECUTOR]: I did, Your Honor. I informed them all that . . . they did not have to leave, but that I would appreciate it that [sic] the victim had requested that there not be people in here. They all left voluntarily.
Defense counsel did not object.
¶ 24 In the Crim. P. 35(c) motion, Church asserted that trial
counsel was ineffective for failing to protect his public trial right by
objecting to the prosecutor’s request that people in the gallery leave
voluntarily. He argued he was prejudiced because the violation of a
defendant’s public trial right is “arguably structural error” and
would have resulted in a new trial.
11 ¶ 25 The postconviction court framed the issue as a claim that
counsel was ineffective for failing “to object to an alleged courtroom
closure.” It denied the claim “because there was no courtroom
closure that trial counsel could have objected to” since the people in
the gallery left voluntarily and the courtroom remained open and
unlocked.
¶ 26 On appeal, Church contends the postconviction court
misconstrued the legal issue he presented. He admits that
“[s]trictly speaking, the trial court judge did not ‘close’ the
courtroom in the manner provided for in Waller v. Georgia,
[467 U.S. 39 (1984)].” See id. at 42-49 (holding that the defendant’s
right to a public trial was violated when “the court ordered the
suppression hearing closed to all persons other than witnesses,
court personnel, the parties, and the lawyers”). Church also
concedes that “the postconviction [court] was correct in stating that
there was no courtroom clos[ur]e to which trial counsel could have
objected.” But he claims this is “immaterial” because the issue was
not whether the trial court conducted a courtroom closure but
(a) whether the prosecutor interfered with Church’s constitutional right to a public trial by “inviting” the spectators to leave for part of
12 the trial, and (b) whether trial counsel was ineffective in failing to object to what the prosecutor was doing thereby alerting the court and asking the court to intercede.
He further argues that a hearing was required on this claim
because what the prosecutor said to the gallery and how spectators
interpreted it are factual issues not contained in the record.
¶ 27 Whether the prosecutor interfered with Church’s right to a
public trial was not raised in Church’s Crim. P. 35(c) motion. This
claim is therefore not properly before us. See Cali, ¶ 34 (we do not
consider issues not raised before the lower court in a postconviction
motion). Moreover, the issue is successive because it could have
been raised on direct appeal. See Crim. P. 35(c)(3)(VII) (a court
must deny any claims as successive that could have been raised in
a prior appeal or postconviction proceeding).
¶ 28 And we reject Church’s claim that counsel was ineffective for
failing to object to the prosecutor’s actions, thereby denying him his
right to a public trial. A defendant’s right to a public trial under the
Sixth Amendment may be violated if “state action” denies the public
or one or more individuals the reasonable opportunity to observe
proceedings contemporaneously in the physical courtroom. See
13 Rios v. People, 2025 CO 46, ¶ 33. This is known as a “total” or
“partial” courtroom closure. Id. A court must apply the four-part
test outlined in Waller to ensure that a closure does not violate the
defendant’s public trial right. Id. at ¶ 24. But Church concedes
there was no courtroom closure here. And he does not explain how,
given that there was no closure, an objection to the prosecutor’s
actions would have changed the outcome of the trial. Nor does he
explain how the prosecutor’s actions implicated his public trial right
absent a closure. Therefore, Church has failed to establish
prejudice. See Weaver v. Massachusetts, 582 U.S. 286, 300-01
(2017) (“[W]hen a defendant raises a public-trial violation via an
ineffective-assistance-of-counsel claim, Strickland prejudice is not
shown automatically. Instead, the burden is on the defendant to
show either a reasonable probability of a different outcome in his or
her case or, as the Court has assumed for these purposes, to show
that the particular public-trial violation was so serious as to render
his or her trial fundamentally unfair.” (citation omitted)).
¶ 29 Because Church has failed to demonstrate prejudice, we need
not address the performance prong of Strickland. See Aguilar, ¶ 9.
14 ¶ 30 For these reasons, we discern no error in the denial of this
E. Pressure Not to Testify
¶ 31 During the trial court’s advisement under People v. Curtis,
681 P.2d 504 (Colo. 1984), Church acknowledged that he
understood his right to testify. He told the trial court that no one
promised him anything in exchange for his decision and affirmed
that no one had used “deadly force, threat, pressure, or undue
influence to get [him] to come to that decision.” Church then asked
the court for additional time to speak with his attorneys. The court
took a twenty-seven-minute recess to allow Church to consult with
counsel. Upon resuming the Curtis advisement, Church told the
court he would not testify. The court confirmed that the decision
was Church’s alone; no one forced, threatened, or pressured him to
make that decision; and no one promised him anything in exchange
for his decision. The court also advised Church that he could
change his mind at any time before the defense rested. The court
then found he had made a knowing, voluntary, and intelligent
decision not to testify.
15 ¶ 32 In his Crim. P. 35(c) motion, Church asserted that he had
“limited communication with counsel concerning his right to testify”
and that he “felt intense pressure from counsel” not to testify. He
argued that, “[b]ut for counsel’s pressure, which overcame [his]
exercise of his voluntary decision-making processes, [he] would
have testified on his own behalf.”
¶ 33 The postconviction court denied this claim because Church’s
argument was conclusory and he had received a proper Curtis
advisement.
¶ 34 On appeal, Church argues the postconviction court erred by
denying this claim without a hearing “[b]ecause the existing record
is devoid of what was said during the 27-minute meeting between
Church and his attorneys.” Though the record does not contain
evidence of what was said during that conversation, Church was
still required to allege “specific facts” in his motion to support his
claim. See Moore v. People, 2014 CO 8, ¶ 23. But beyond asserting
that he would have testified if he had better communication with
counsel and had not been “pressured” by counsel not to testify, he
did not allege any facts addressing either prong of the Strickland
test. For example, he never explained what additional
16 communication he needed or why the twenty-seven-minute recess
the court granted him to consult with his attorneys was
insufficient.2 Nor did he allege how counsel pressured him not to
testify. Indeed, his motion is devoid of any facts establishing that
trial counsel’s actions fell below an objective standard of
reasonableness. See Strickland, 466 U.S. at 687-88. Therefore, we
conclude that Church did not adequately allege deficient
performance in counsel’s advice not to testify. See People v. Sparks,
914 P.2d 544, 548 (Colo. App. 1996) (concluding that advising the
defendant not to testify did not constitute ineffective assistance of
counsel); People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007) (a
postconviction court may reject an ineffective assistance claim if it
is bare and conclusory in nature, or lacks supporting factual
allegations).
¶ 35 While admitting this claim was “spar[s]e[,] consisting of only
one paragraph and comprising only 59 words,” Church nonetheless
2 To the extent Church attempts to provide these explanations in
his reply brief, we will not consider them. See People v. Owens, 2024 CO 10, ¶ 90 (we do not address arguments made for the first time in a reply brief); see also People v. Huggins, 2019 COA 116, ¶ 17 (we will not consider allegations not raised in a postconviction motion and therefore not ruled on by the postconviction court).
17 contends on appeal that he should be afforded a hearing on this
issue in the interest of judicial economy. He asserts that, if we
affirm the denial of this claim on the ground that the allegations
were insufficient, he will file another motion arguing that
postconviction counsel was ineffective in drafting this claim. And
he argues that requiring him to raise the issue in a second
postconviction motion would be a waste of judicial resources.
¶ 36 While we recognize that we have discretion to review
unpreserved constitutional issues “in rare cases” when “doing so
would clearly further judicial economy,” People v. Huggins, 2019
COA 116, ¶ 19, those issues still require supporting factual
allegations, see Delgado, ¶ 8. But Church failed to provide these in
either his Crim. P. 35(c) motion or his appellate briefs. Instead, he
asserts on appeal that he would provide those allegations in
“specific detail” in a future motion asserting ineffective assistance of
postconviction counsel. That is not sufficient. Moreover, the
problem is not that Church is raising this issue for the first time on
appeal; the problem is that he failed to support his claim with
specific factual allegations. And Church has provided no authority
for the premise that we may reverse a postconviction court’s order
18 and remand for a hearing on a claim that lacks any supporting
factual allegations simply in the interests of judicial economy.
¶ 37 In any event, Church’s testimony during the Curtis advisement
contradicts his claim that counsel pressured him not to testify.
Indeed, Church acknowledged he understood his right, said he had
decided not to testify, and confirmed his decision was not the result
of force, threats, pressure, or undue influence. And Church alleged
no facts in his motion that would undermine the reliability of this
acknowledgment.
¶ 38 Because Church’s claim lacked supporting factual allegations
and was contradicted by the record, we conclude the postconviction
court did not err by denying the claim without a hearing. See
Delgado, ¶ 8.
III. Mittimus
¶ 39 Although not raised by the parties, we note the mittimus
incorrectly reflects that Church pleaded guilty to the crimes.
Instead, he was found guilty after a jury trial. Because a court may
correct a clerical error on a mittimus at any time, see Crim. P. 36,
we remand the case for the postconviction court to correct the
mittimus to reflect that Church was found guilty after a jury trial.
19 IV. Disposition
¶ 40 The order is affirmed, and the case is remanded for the
postconviction court to amend the mittimus to reflect that Church
was found guilty after a jury trial.
JUDGE GROVE and JUDGE SCHOCK concur.