21CA1962 Peo v DiMarco 11-27-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1962 Boulder County District Court No. 18CR1835 Honorable Norma A. Sierra, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sherry Okalani DiMarco,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 27, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Golden, Colorado, for Defendant- Appellant ¶1 Defendant, Sherry Okalani DiMarco, appeals the judgment of
conviction entered on a jury verdict finding her guilty of one count
of conspiracy to commit sexual assault on a child by one in a
position of trust. DiMarco challenges her convictions on four
grounds, contending that the trial court erred by (1) constructively
amending the charges in its answer to a jury question and thereby
violated her right to a unanimous verdict; (2) denying her motions
for substitute counsel; and (3) failing to sever her codefendant’s
case from hers, resulting in severe prejudice. She also claims her
counsel’s behavior during the trial deprived her of due process and
a fair trial. We address and reject each of her contentions.
I. Background
¶2 According to the trial evidence, Sherry DiMarco and her
husband, Curtis, are the parents of six children: C.D., A.D., D.D.,
Li.D., Lu.D., and L.D. In August 2017, all six children were placed
in foster care after DiMarco and her husband were arrested on an
unrelated charge. While in foster care, the children engaged in
behaviors that raised questions and concerns. Eventually, several
of the children accused their parents of sexual abuse.
1 ¶3 C.D. testified that the codefendant washed him and his
siblings in the shower, well past the age of independence. Some of
the children testified that DiMarco was in the bathroom but not
touching them. A.D. also said that the codefendant showered with
him and his brothers and washed their genitals and buttocks.
According to A.D.’s testimony, DiMarco had told them it was okay.
A.D. said the codefendant also touched his penis in the kids’
bedroom and that he was forced to touch DiMarco’s vagina.
¶4 The prosecution charged DiMarco with sexual assault on a
child by one in a position of trust, pattern of abuse, and conspiracy
to commit sexual assault on a child by one in a position of trust.1
¶5 The prosecution charged the codefendant with sexual assault
on a child (A.D.) by one in a position of trust, pattern of abuse;
solicitation to commit aggravated incest (A.D. touching S.D.);
solicitation to commit incest (A.D. touching Lu.D., Li.D., and D.D.);
sexual assault on a child (Lu.D.) by one in a position of trust,
pattern of abuse; solicitation to commit aggravated incest (Lu.D.
1 The prosecution originally also charged DiMarco with aggravated
incest and conspiracy to commit aggravated incest but dismissed those charges against her before trial.
2 touching S.D.); solicitation to commit incest (Lu.D. touching Li.D.,
A.D., and D.D.); attempt to commit aggravated incest (Li.D.); sexual
assault on a child (Li.D.) by one in a position of trust, pattern of
abuse; and solicitation to commit incest (Li.D. touching A.D. and
Lu.D.).
¶6 The codefendants were tried jointly, and both denied sexually
abusing the children. A jury convicted DiMarco of conspiracy and
acquitted her of the sexual assault charge. The court sentenced her
to probation for ten years to life.
¶7 Concerning the codefendant, the jury hung on the solicitation
to commit aggravated incest (A.D. touching S.D.) charge and
acquitted him of the solicitation to commit aggravated incest (Lu.D.
touching S.D.) charge. It convicted him of the remaining charges.
II. Constructive Amendment and Unanimity
¶8 DiMarco contends that the trial court’s answer to a jury
question during deliberations constituted a constructive
amendment and violated her right to a unanimous verdict. We
disagree.
3 A. Additional Facts
¶9 The prosecution originally charged DiMarco with two counts of
conspiracy to commit sexual assault on a child by one in a position
of trust, and neither charge named a specific victim. Defense
counsel filed a pretrial motion to merge the counts into a single
count of conspiracy and argued that under section 18-2-201(4),
C.R.S. 2024, a person who conspires to commit multiple crimes is
only guilty of one conspiracy if the crimes are part of a single
criminal episode. The court took no action on the motion and said
it would rule when it heard the evidence.
¶ 10 Before trial, the prosecutor dismissed all but one conspiracy
charge. The court instructed the jury that DiMarco was charged
with conspiracy to commit sexual assault on a child, position of
trust, with A.D. and L.D.’s names in parentheses. Neither the
elemental instructions for conspiracy nor sexual assault on a child,
position of trust named a specific victim.
¶ 11 During deliberations, the jury asked, “With regards to charges
listed with multiple victims, would we find guilty verdicts if we find
guilt with one of the victims but not necessarily all of them? A [sic]
example is charge #2 [conspiracy] with Mrs. DiMarco.” The
4 prosecutor argued the answer should be “[y]es, but they have to
agree unanimously on the act, that is the act and the victim that
they’re finding the charge for.” Defense counsel argued that the
answer should be no and that the “proper way to charge this would
have been a separate conspiracy count for each child. Counsel
asserted that because the prosecution had chosen to use the word
“and” in the complaint, the jury had to find the conspiracy applied
to both A.D. and L.D. Counsel argued that the jury needed to
unanimously agree on both victims to sustain a conviction.
¶ 12 The prosecutor disagreed and asserted that a conspiracy
charge did not require unanimity on a particular victim. The trial
court agreed with the prosecutor and asked whether DiMarco
wanted the jurors to identify a victim in the event of a guilty verdict.
Counsel responded, “[W]e would object to any identification . . .
[b]ecause we feel that the whole thing’s wrong.”
¶ 13 The court then answered the jury’s question as follows: “Under
the example you provided, if you find a guilty verdict as to any one
of the multiple victims, you would return a verdict of guilty. You
would return a verdict of not guilty if you find not guilty as to all
victims.”
5 B. Standard of Review and Applicable Law
¶ 14 Whether a variance from the charging document constitutes a
constructive amendment is a question of law that we review de
novo. Hoggard v. People, 2020 CO 54, ¶ 12. Constructive
amendments do not require automatic reversal and instead, require
reversal only if they prejudice a defendant’s substantial rights.
Bock v. People, 2024 CO 61, ¶¶ 23-24.
¶ 15 However, whether to provide the jury with additional written
instructions in response to a question is within the trial court's
sound discretion. People v. Thornton, 251 P.3d 1147, 1152 (Colo.
App. 2010).
¶ 16 A constructive amendment occurs when a jury instruction
“changes an essential element of the charged offense and thereby
alters the substance of the charging instrument.” People v. Rediger,
2018 CO 32, ¶ 48 (citation omitted); see People v. Gallegos, 260
P.3d 15, 26 (Colo. App. 2010) (A constructive amendment effectively
“subjects a defendant to the risk of conviction for an offense not
originally charged . . .”). In contrast, a simple variance occurs when
the elements remain unchanged, but the trial evidence proves facts
6 materially different from those alleged in the indictment. Campbell
v. People, 2020 CO 49, ¶ 45 (citation omitted).
¶ 17 Additionally, “[t]rial courts have a duty to correctly instruct
juries on all matters of law.” Day v. Johnson, 255 P.3d 1064, 1067
(Colo. 2011). In Colorado, a defendant has a statutory right to a
unanimous jury verdict. § 16-10-108, C.R.S. 2024; Crim. P.
23(a)(8); Crim. P. 31(a)(3); People v. Linares-Guzman, 195 P.3d
1130, 1134 (Colo. App. 2008). “Unanimity means only that each
juror agrees that each element of the crime charged has been
proved to that juror’s satisfaction beyond a reasonable doubt.”
Linares-Guzman, 195 P.3d at 1134; see People v. Lewis, 710 P.2d
1110, 1116 (Colo. App. 1985).
¶ 18 “Generally, jurors need not agree about the evidence or theory
by which a particular element is established . . . .” People v. Vigil,
251 P.3d 442, 447 (Colo. App. 2010); see People v. Dunlap, 124 P.3d
780, 815 (Colo. App. 2004) (the defendant was not deprived of his
right to a unanimous verdict, even though the theft instruction
included both the “without authorization” and “threat and
deception” theories).
7 ¶ 19 When the prosecution presents evidence of multiple distinct
acts that could constitute the charged offense and the jury has a
reasonable likelihood of disagreeing over which act was committed,
the trial court must either (1) require the prosecution to elect the
transaction on which it relies for the conviction or (2) provide a
special instruction that the jury must unanimously agree that the
defendant committed the same act or all of the acts. People v.
Archuleta, 2020 CO 63M, ¶¶ 21-22; People v. Hines, 2021 COA 45,
¶ 50. However, a special unanimity instruction need not be given
when a defendant is charged with a crime encompassing incidents
that occurred in a single transaction. Melina v. People, 161 P.3d
635, 639-40 (Colo. 2007). In the context of a conspiracy charge,
factors tending to show a single transaction include: (1) the acts
alleged occurred during the same period; (2) the type of overt act
alleged is the same; (3) the unlawful objective of the conspiracy is
the same; (4) the method is the same; and (5) the same evidence
would be relevant to the charges. People v. Davis, 2017 COA 40M,
¶ 18.
8 C. Analysis
¶ 20 DiMarco first argues that the court’s response constituted a
constructive amendment because it permitted a conviction for
conduct related to either victim rather than for both. She reasons
that the prosecutor’s decision to use the conjunctive “and” in the
charging document placed her on notice of and required the jury to
find guilt as to both victims to convict her. We disagree and
conclude the court’s response constituted neither a constructive
amendment nor a simple variance.
¶ 21 As DiMarco acknowledges, section 16-5-202(3), C.R.S. 2024,
provides that “[p]leading in either the conjunctive or the disjunctive
shall place a defendant on notice that the prosecution may rely on
any or all of the alternatives alleged.” Thus, DiMarco knew from the
charging document’s language that the prosecution could rely on
one or both victims to prove the conspiracy charge.2 For that
reason, we reject DiMarco’s assertion that the word “and” somehow
2 Although not argued, we note that defense counsel asked for the
merger of the conspiracy charges before trial and argued that DiMarco could be convicted of only one conspiracy even if she conspired to commit multiple crimes, so long as they were part of a single transaction, a position contrary to her position on appeal.
9 permitted the jury to convict her based on different victims. We are
equally unconvinced, based on the language of section 16-5-202(3),
that the word “and” expanded the charge from one to two victims,
thereby lowering the prosecution’s burden of proof. DiMarco never
objected and instead, specifically requested that the crime of
conspiracy be reduced to one charge. Finally, DiMarco has not
explained, nor can we see, how she was prejudiced.
¶ 22 We similarly reject DiMarco’s argument that the court’s
response deprived her of a unanimous verdict because the response
did not contain unanimity language or require a victim to be
identified. With respect to identification, we conclude that DiMarco
waived any argument that the jury should be required to identify
the victim on which they agreed when defense counsel told the
court he did not want the jury to do so. See Rediger, ¶ 39; see also
United States v. Olano, 507 U.S. 725, 733 (1993). Therefore, we do
not address it further.
¶ 23 Turning to unanimity, the record shows the court instructed
the jury that its verdict had to be unanimous and specifically that
“all of you must agree to all parts of it.” And the jury’s question,
asking if it could return a guilty verdict based on a finding of guilt
10 as to one victim but not all, reveals its understanding of the
unanimity requirement. Section 18-2-201(1) provides that
[a] person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, [she] agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or [she] agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.
¶ 24 A jury need not unanimously decide “which of several possible
means the defendant used to commit an element of the crime” but
rather that the act of conspiracy to commit the crime was
committed. Davis, ¶ 21 (finding that “[t]hough the prosecution
alleged numerous overt acts in furtherance of the single conspiracy,
that did not require unanimous agreement by the jurors as to the
precise overt act [the] defendant committed” for a specific victim but
rather conspiracy of the acts in general). The court’s response told
the jury that, in order to return a guilty verdict on the conspiracy
charge, it had to unanimously agree that DiMarco had conspired to
commit sexual assault against a particular victim but said nothing
about the elements of the crime of conspiracy itself. We presume
11 the jury understood and followed this instruction. Bondsteel v.
People, 2019 CO 26, ¶ 62.
¶ 25 Accordingly, we discern no error in the court’s response.
III. Substitute Counsel
¶ 26 DiMarco next contends that the trial court erroneously denied
her request for substitute counsel. We discern no abuse of
discretion.
A. Additional Facts
¶ 27 Before trial, DiMarco’s counsel filed a motion to withdraw,
alleging that there was a “substantial and irreconcilable conflict of
interest.” The motion did not detail the conflict but stated that
DiMarco did not oppose it. The court conducted an ex parte
hearing.
¶ 28 Counsel explained that he was vaccinated and that he had two
high-risk children (ages twenty-three and twenty-five) with
autoimmune diseases that placed them at a high risk of contracting
COVID-19. He said neither child lived at home, but that they were
in his home daily. He further explained that DiMarco was not
vaccinated, would not vaccinate, and refused to wear a mask. He
indicated he would “love to try this case,” but that he had to put his
12 family first and that his wife was adamant that he not sit with an
unvaccinated and unmasked person for two weeks. Counsel said
he was willing to go to jail for contempt if the court did not find that
this situation constituted a conflict.
¶ 29 After asking some clarifying questions, the court found no
conflict because counsel’s children did not live at his home, they
were independent adults who did not depend on him for the daily
tasks of living, and they could stay away from counsel’s home for
the duration of the trial to avoid exposure.
¶ 30 Counsel then alleged a second basis for finding a conflict that
concerned the defense theory. He explained that he believed
DiMarco acted under duress and based on a psychological exam,
that she suffered from battered women’s syndrome or Stockholm
syndrome. He discussed the duress defense with her, but she
denied ever being a victim of abuse or that the sexual assaults
occurred. Both DiMarco and counsel said this disagreement had
caused a “huge amount of conflict” to the “point where
communications ha[d] basically broken down.”
¶ 31 DiMarco then explained she disagreed with a duress defense
because that was “saying I am guilty.” She said she wanted to fire
13 defense counsel “over that.” The court then conducted an
advisement pursuant to People v. Arguello, 772 P.2d 87 (Colo.
1989), after which DiMarco stated she did not wish to represent
herself if the court denied her motion.
¶ 32 In a thorough written order, the court denied DiMarco’s
motion. It reiterated its earlier findings concerning the COVID-19
allegation, and it noted that the potential impact of DiMarco’s
unvaccinated status was speculative since counsel attended court
with numerous individuals without knowing their vaccination
status. And it noted the issue was “easily resolvable” because
counsel could avoid contact with his children during the trial.
¶ 33 Concerning the defense, the court found no conflict because
the defendant had a constitutional right to pursue an “innocence-
based defense,” and counsel had to abide by her choice. 3
¶ 34 After counsel said he would not sit next to DiMarco during the
trial, the court set up the courtroom so that counsel could
communicate with DiMarco during the trial while maintaining
social distancing.
3 DiMarco does not appeal the court’s ruling precluding counsel
from pursuing a duress defense.
14 B. Standard of Review and Applicable Law
¶ 35 We review a trial court’s ruling on a motion for substitute
counsel for an abuse of discretion. People v. Bergerud, 223 P.3d
686, 696 n.4 (Colo. 2010). A trial court abuses its discretion where
its decision is manifestly arbitrary, unreasonable, or unfair, or is
based on a misapprehension or misapplication of the law. People v
Woodyard, 2023 COA 78, ¶ 76 (citations omitted). When a court
erroneously denies a motion for substitute counsel and the
defendant proceeds to trial with court-appointed counsel, we review
for harmless error and will not reverse unless the defendant
demonstrates a reasonable probability that but for counsel’s errors,
the result of the proceeding would have been different. Bergerud,
223 P.3d at 696.
¶ 36 The United States and Colorado Constitutions provide an
indigent criminal defendant the right to representation. U.S. Const.
amends. VI, XIV; Colo. Const. art. II, § 16; Faretta v. California, 422
U.S. 806, 814 (1975); People v. Alengi, 148 P.3d 154, 159 (Colo.
2006). While an indigent defendant has the absolute right to
competent counsel, she “does not have the right to demand a
particular attorney.” People v. Hodges, 134 P.3d 419, 425 (Colo.
15 App. 2005); see Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 624 (1989) (finding that the right to counsel of choice
does not extend to defendants for whom the court appoints
counsel).
¶ 37 When an indigent defendant voices objections to court-
appointed counsel, the trial court must investigate the reasons for
the dissatisfaction. Arguello, 772 P.2d at 94. Before substituting
counsel, the court must establish that the defendant has a well-
founded reason for believing that court-appointed counsel will not
provide competent representation. Id. Factors relevant to this
inquiry include (1) the timeliness of the motion, (2) the adequacy of
the court’s inquiry into the defendant’s complaint, (3) whether the
attorney-client conflict is so great that it has resulted in a total lack
of communication or prevented an adequate defense, and (4) the
extent to which the defendant “substantially and unreasonably
contributed” to the underlying conflict. Bergerud, 223 P.3d at 695.
A conflict of interest exists when counsel’s ability to champion the
client’s cause becomes substantially impaired. Rodriguez v. Dist.
Ct., 719 P.2d 699, 704 (Colo. 1986).
16 ¶ 38 As relevant here, on issues of trial strategy, defense counsel is
generally the “captain of the ship.” Arko v. People, 183 P.3d 555,
558 (Colo. 2008). However, there are several constitutional
limitations on defense counsel’s ability to direct a trial, including
whether to waive a jury trial, whether the defendant will testify,
whether the defendant will plead guilty, and whether the defendant
wishes to appeal. Bergerud, 223 P.3d at 694-95. Such decisions
are for the defendant alone to make. Id.
C. Analysis
¶ 39 We begin with DiMarco’s argument that her disagreements
with counsel over the risk of COVID-19 exposure resulted in a
breakdown of communication and required the appointment of
substitute counsel. We discern no abuse of discretion in the court’s
finding of no conflict, for three reasons. First, as noted by the
court, the record shows that counsel’s concerns were speculative
and centered around the possibility that he might contract COVID-
19 from DiMarco and pass it on to his children. But as the court
noted, counsel appeared in court regularly with individuals whose
vaccination status was unknown to him. And counsel never alleged
that he was immune compromised or faced a physical health risk.
17 Moreover, the risk to counsel’s children was easily addressed by
counsel having no contact with his children during the trial.
¶ 40 Second, we are not persuaded that counsel’s fear of potentially
passing COVID-19 to his family is like the cases on which DiMarco
relies. See United States v. Moore, 159 F.3d 1154, 1159 (9th Cir.
1998); People v. Avila, 119 Cal. Rptr. 3d 657, 661-62 (Ct. App.
2011); Aceves v. Superior Ct., 59 Cal. Rptr. 2d 280 (Ct. App. 1996).
In all those cases, the defendant threatened counsel with physical
violence, and counsel’s apprehension of physical harm prevented
communication with the client. Here, counsel’s fear for his family
arose from the possibility of exposure, not a direct threat of violence
from DiMarco. And counsel told the court he would “love to try the
case” but for the possibility of exposing his children to COVID-19.
¶ 41 Third, the record does not demonstrate a complete breakdown
in communication. Indeed, it shows the opposite — that DiMarco
and counsel communicated about the theory of defense and that
they disagreed about the course to pursue. Counsel investigated
the duress defense, and DiMarco chose instead to pursue an
innocence-based defense. The court’s ruling precluding the duress
18 defense resolved the strategy disagreement and thus, any potential
conflict.
¶ 42 Finally, we find DiMarco’s reliance on State v. Gray, No. 1 CA-
CR 19-0457, 2020 WL 6286301, at *2–3 (Ariz. Ct. App Oct. 27,
2020) an unpublished opinion from Arizona State, unpersuasive
because unlike that case, counsel’s basis for moving to withdraw
here concerned the risk to his immune compromised children, not
himself. Additionally, the motion to withdraw in Payne was filed at
the beginning of the pandemic when little was known about the
COVID-19 virus and no vaccinations existed. In contrast, at the
time of DiMarco’s trial, vaccinations existed, the statewide mask
mandate had been lifted, and in-person trials had resumed.
¶ 43 Accordingly, we discern no abuse of discretion in the court’s
ruling denying DiMarco’s motion to substitute counsel.
IV. Counsel’s Behavior
¶ 44 DiMarco next contends that counsel’s behavior during trial,
including his refusal to sit next to her at counsel table, his use of a
KN-95 mask and face shield, and his repeated references to duress-
related evidence in contravention of the court’s order, deprived her
of the right to due process and a fair trial. We perceive DiMarco’s
19 contention as one of ineffective assistance of trial counsel that
needs further development of the record and therefore, we decline to
address it for the first time on appeal. People v. Kelling, 151 P.3d
650, 655 (Colo. App. 2006) (“[B]ecause of the need for a developed
factual record, an ineffective assistance of counsel claim should
ordinarily be raised in a postconviction proceeding, not on direct
appeal.”).
V. Severance of Defendants
¶ 45 DiMarco last contends that the trial court erroneously denied
her motion for severance. She argues that she was entitled to
severance as a matter of right because (1) she and the codefendant
had antagonistic defenses, (2) she and the codefendant were
charged differently and the numerous charges against him
prejudiced her and would not have been admissible in a separate
trial of her, and (3) joinder prejudiced her ability to present a
defense.
¶ 46 DiMarco filed four pretrial motions to sever her case from the
codefendant’s. The first motion alleged that the codefendant’s
defenses were possibly antagonistic due to the complexity of the
20 evidence, and that the “sheer volume of the evidence” against the
codefendant would “spill over into the case against her and cause
prejudice.”4 The prosecutor responded that because the children’s
outcry occurred after being placed in foster care, the evidence was
admissible to rebut any claim of recent fabrication and was also
relevant to show that DiMarco was aware of her husband’s abuse
and encouraged the children to participate, as reflected in the
conspiracy charge. The trial court denied DiMarco’s motion, finding
that there was extensive overlapping evidence relevant to
conspiracy, that both defendants’ decisions to pursue a general
denial defense meant that they did not have antagonistic defenses,
and that the evidence against the codefendant would be relevant
and admissible against both of them to rebut a claim of recent
fabrication. The court also found that any complexity could be
remedied with appropriate jury instructions and determined that
judicial economy and only requiring the child victims to testify once
weighed against severance.
4 The motion also alleged the prosecution would likely introduce
evidence of the codefendant’s violence toward a neighbor. The prosecutor responded that he had no intention of introducing this evidence.
21 ¶ 47 DiMarco’s second motion reasserted the claims in the first and
added that defense counsel had recently learned of physical and
psychological abuse perpetrated by the codefendant against
DiMarco that could render their defenses antagonistic. The trial
court denied the motion for the reasons previously stated, pending
the production of any further evidence of antagonistic defenses.
¶ 48 DiMarco’s third motion reasserted her earlier claims and
added that because DiMarco had suffered abuse by her husband,
requiring her to sit through a trial with her abuser would interfere
with her ability to effectively assist in her defense. The prosecutor
responded that DiMarco had not shown how her husband’s abuse
was relevant and admissible to any endorsed defense. The court
agreed and denied the motion.
¶ 49 DiMarco’s fourth motion raised the previous claims and added
that the codefendant’s abuse raised the legal defense of duress,
which proved up their antagonistic defenses. The court denied this
motion, too, because the duress defense issue was resolved by the
court’s hearing on counsel’s motion for substitute counsel.
22 B. Standard of Review and Applicable Law
¶ 50 A defendant is entitled to severance as a matter of right if (1)
there is material evidence admissible against one but not all the
parties, and (2) admission of that evidence is prejudicial to the party
against whom the evidence is not admissible. § 16-7-101, C.R.S.
2024; Crim. P. 14.
¶ 51 The party moving for severance bears the burden of showing
that the evidence “was so inherently prejudicial that the jury could
not have limited its use to a proper purpose.” People v. Johnson, 30
P.3d 718, 725 (Colo. App. 2000). In deciding actual prejudice, a
reviewing court considers “(1) whether the number of defendants or
the complexity of evidence is such that the jury will confuse the
evidence and the law applicable to each defendant; (2) whether,
despite admonitory instructions, evidence admissible against one
defendant will improperly be considered against another; and (3)
whether the defenses are antagonistic.” Id. at 725-26.
¶ 52 “[I]f a defendant is not entitled to severance as a matter of
right, then the district court has discretion as to whether to grant
their motion for severance, and its ‘decision will be affirmed absent
a showing of abuse of discretion and actual prejudice to the moving
23 party.’” People v. Black, 2022 COA 127, ¶ 60 (quoting Johnson, 30
P.3d at 725); see also Pelz v. People, 728 P.2d 1271, 1275 (Colo.
1986). “The fact that the prosecution may have a stronger case
against one defendant than against a co-defendant does not entitle
the latter to a separate trial.” People v. Gregory, 691 P.2d 357, 360
(Colo. App. 1984). “Nor does the fact that a defendant may have an
inconsistent defense necessarily entitle [her] to a separate trial.” Id.
¶ 53 We discern no abuse of discretion in the court’s ruling, for five
reasons. First, we conclude that DiMarco was not entitled to
severance as a matter of right because “the evidence” used to prove
the charges against the codefendant was the same evidence used to
prove the two charges against DiMarco. Importantly, defense
counsel never specified any particular evidence that would not have
been admissible against DiMarco, nor did the court’s ruling pertain
to any particular piece of evidence. Instead, the court said it would
deal with admissibility as the evidence was introduced and provide
limiting instructions accordingly.
¶ 54 Additionally, DiMarco’s brief does not identify specific evidence
admitted at trial against the codefendant that was not admissible
24 against her, but instead refers to volumes of evidence related to the
codefendant that were unrelated to the charges she faced.
Therefore, we understand her argument about “the evidence” to
relate to all the trial evidence. We conclude this evidence directly
proved the charged offenses, and that the evidence related to
children not named in the sexual assault charge occurred
“contemporaneously with the charged offense and facilitate[d] the
commission of it.” Rojas v. People, 2022 CO 8, ¶ 44. Indeed,
mutual participation in an offense is a logical basis for refusing to
sever. Gregory, 691 P.2d at 360.
¶ 55 Second, to the extent the evidence implicated bad character,
we further conclude that it was admissible against both defendants,
under CRE 404(b), to rebut their claims that the children were not
credible, were coached by their foster parents, and otherwise
fabricated the allegations.
¶ 56 Third, we conclude that the codefendant’s defenses were not
antagonistic, as both claimed the children were not credible and
that the abuse never occurred. While DiMarco also argued that she
had no knowledge of any abuse committed by her husband, this
argument was consistent with her husband’s defense theory that
25 the abuse never occurred. And as to the conspiracy charge, she
never conceded that the codefendant may have abused the children.
Instead, she denied that any abuse occurred, so there was no crime
to which she and the codefendant could have agreed.
¶ 57 Fourth, the court instructed the jury to consider each charge
separately, and it provided limiting instructions. Thus, we reject
DiMarco’s contention that the jury assumed she was guilty by
association and marriage to the codefendant. The jury’s acquittal of
DiMarco on the sexual assault charge and its question to the court
concerning how to render a verdict demonstrate that the jury
considered the evidence for each defendant separately. Bondsteel, ¶
62 (finding verdicts and jury questions before verdicts evidenced the
jury’s ability to separate facts and law as to each offense and that
no prejudice occurred); People v. Braley, 879 P.2d 410, 414-15
(Colo. App. 1993) (same). Moreover, to the extent DiMarco claims
there was more and stronger evidence against her husband, and
thereby prejudiced her, we conclude that does not provide a basis
for severance. People v. Manners, 713 P.3d 1348, 1353 (Colo. App.
1985) (finding that severance not mandated where case against one
codefendant stronger than the other).
26 ¶ 58 Finally, we are not persuaded that DiMarco was unable to
present her defense. She asserts that she should have been able to
defend against the conspiracy charge by presenting evidence that
she was protecting her children from her husband. However, such
a defense was contrary to her innocence-based defense that the
assaults never occurred. And she does not separately challenge the
court’s ruling precluding her duress defense.
¶ 59 Accordingly, we discern no abuse of discretion in the court’s
denial of her motion for severance.
VI. Disposition
¶ 60 The judgment is affirmed.
JUDGE GROVE and JUDGE LUM concur.