22CA0848 Peo v Fleming 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0848 Garfield County District Court No. 18CR513 Honorable John F. Neiley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kasey Lynn Fleming,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Kasey Lynn Fleming, appeals the judgment of
conviction entered after a jury found him guilty of two counts of
sexual assault on a child. We affirm.
I. Background
¶2 A reasonable jury could have found the following facts based
on the evidence presented at trial.
¶3 T.L., age nine, and L.L., age eleven, were at a store with their
mother, D.L., and a friend, M.I. In the store, the children separated
from D.L. and went to the toy section. There, a man grabbed T.L.’s
butt then immediately apologized. L.L. and M.I. did not see the
man touch T.L., but shortly after, the man also grabbed L.L.’s butt.
When L.L. told T.L. that the man grabbed her butt, T.L. thought it
was not an accident. The girls called D.L. and told her what
happened. D.L. then told the store security, and security — upon
looking through footage — recognized the man matching the girls’
description as Fleming, the husband of one of the store’s
employees.
¶4 Fleming was charged with two counts of sexual assault on a
child, along with five habitual criminal counts. A jury found
1 Fleming guilty on both sexual assault counts, and the court
subsequently adjudicated him a habitual criminal. The court
sentenced Fleming to two consecutive mandatory terms of twenty-
four-years-to-life in the custody of the Department of Corrections.
¶5 Fleming now appeals, arguing that (1) the court violated his
statutory and constitutional rights to a speedy trial; (2) the
prosecutor committed misconduct amounting to plain error in
closing argument; and (3) the Colorado Sex Offender Lifetime
Supervision Act (SOLSA) is unconstitutional facially and as applied.
II. Speedy Trial
¶6 Fleming contends that the trial court violated his statutory
and constitutional speedy trial rights. We conclude that Fleming
waived the statutory speedy trial issue and that there was no
violation of Fleming’s constitutional speedy trial right.
A. Additional Facts
¶7 Fleming entered not guilty pleas to two counts of sexual
assault on a child on July 11, 2019. He requested continuances in
October 2019 and January 2020. Then, in March 2020, defense
counsel moved to vacate the jury trial because the parties had
reached a disposition. However, instead of a disposition, Fleming
2 moved for a substitution of counsel, and the parties agreed to
another continuance.
¶8 In May and June 2020, Fleming’s new counsel requested two
more continuances; the prosecution objected to the second request.
In July 2020, Fleming’s counsel sought yet another continuance,
which the prosecution again opposed. The court set a new trial
date for November 2020, but that setting was pushed back to April
26, 2021, due to COVID-19.
¶9 On April 19, 2021 — a week before the April 26 trial date and
less than three weeks before the statutory speedy trial deadline —
the prosecutor moved for a continuance based on the purported
unavailability of two material witnesses. According to the
prosecutor, T.L. and L.L.’s father had suffered two heart attacks in
December 2020, and the family had made plans “to go on vacation
with their father who had almost died” during the trial dates. The
prosecutor informed the court that he had “initiated [a] subpoena
request” for T.L. and L.L. several months earlier, and that he had
become aware of the family’s vacation plans “four to six weeks”
before the hearing. But he went on to explain that he had chosen
not to “personally serve [the father with the subpoenas] at his place
3 of business . . . because of the age of the alleged victims, because of
the reason behind the request to go some place with his family.”
¶ 10 Over defense counsel’s objection, the trial court found that the
prosecution had established good cause for a continuance under
section 18-1-405(6)(g)(I), C.R.S. 2025. At a setting hearing the next
week, defense counsel renewed his objection to the continuance
and informed the court he was “planning on filing a formal motion
or a written motion on speedy trial outlining why in our judgment
speedy trial has run,” as well as addressing why, in his view, the
prosecutor had not exercised due diligence to ensure the
attendance of T.L. and L.L. at trial.
¶ 11 Fleming’s trial finally began on August 9, 2021. Despite his
earlier representations, defense counsel did not move to dismiss the
case on speedy trial grounds before the start of trial. However,
almost five months after trial, Fleming — now represented by the
public defender — filed a motion to dismiss for a statutory speedy
trial violation. In this motion, the public defender also alleged for
the first time that the court and prosecution had violated Fleming’s
constitutional speedy trial right. The court denied the motion,
ruling that Fleming had waived his statutory right to speedy trial by
4 failing to seek dismissal before the trial began. See § 18-1-405(5).
Turning to Fleming’s constitutional speedy trial claim, the court
concluded that Fleming had not met his burden to demonstrate
that his constitutional speedy trial right was violated.
B. Statutory Speedy Trial
¶ 12 We do not reach the merits of Fleming’s statutory speedy trial
claim because he waived it by failing to move for dismissal on that
ground before trial began.
¶ 13 Under Colorado’s speedy trial statute, if a defendant’s case “is
not brought to trial . . . within six months from the date of the entry
of a plea of not guilty, . . . the pending charges shall be dismissed”
unless the statute provides otherwise. § 18-1-405(1); see People v.
Sherwood, 2021 CO 61, ¶ 21. “The burden of compliance with the
speedy trial requirement . . . rests wholly with the People and the
trial court.” Sherwood, ¶ 23.
¶ 14 A defendant waives his statutory speedy trial right, however,
by failing to move for dismissal before trial. See § 18-1-405(5);
Crim. P. 48(b)(5); People v. McMurtry, 122 P.3d 237, 242 (Colo.
2005); see also People v. Abdu, 215 P.3d 1265, 1269 (Colo. App.
5 2009) (appellate challenge barred because defendant never filed a
motion to dismiss on speedy trial grounds).
¶ 15 While defense counsel objected to a setting beyond the
statutory speedy trial deadline, he never moved to dismiss Fleming’s
case on speedy trial grounds before trial began. His “[f]ailure to so
move” was “a waiver” of Fleming’s statutory speedy trial rights.
§ 18-1-405(5). To the extent that Fleming argues that his counsel’s
objections were the functional equivalent of a motion to dismiss and
sufficiently preserved the issue for appeal, we disagree. See Abdu,
215 P.3d at 1269 (declining “to construe defendant’s statement as a
motion to dismiss on speedy trial grounds”); People in Interest of
J.M.N., 39 P.3d 1261, 1263 (Colo. App. 2001) (concluding that, even
where the juvenile defendant “informed the court that he would not
waive his statutory right” to speedy trial, he nevertheless waived it
“because [he] failed to move for dismissal before the adjudicatory
trial began”).
¶ 16 We are not persuaded otherwise by Fleming’s argument that
counsel’s failure to timely file a motion to dismiss amounted to a
forfeiture rather than a waiver. See People v. Rediger, 2018 CO 32,
¶ 40 (forfeited claims may be reviewed on appeal but waiver
6 extinguishes error and therefore appellate review). Counsel can
waive statutory rights. Finney v. People, 2014 CO 38, ¶ 16. And,
unlike the waiver of a fundamental constitutional right, which
requires “the intentional relinquishment of a known right or
privilege,” Rediger, ¶ 39 (citation omitted), the waiver of a statutory
right demands a less stringent showing, People v. Roberson, 2025
CO 30, ¶ 13 (“When the right at issue is a statutory right, waiver
‘must be voluntary, but need not be knowing and intelligent.’”
(quoting Finney, ¶ 16)).
¶ 17 Moreover, while “[w]aiver can be demonstrated through explicit
words or actions,” id., it can also be implied, “as when a party
engages in conduct that manifests an intent to relinquish a right or
privilege or acts inconsistently with its assertion,” Forgette v. People,
2023 CO 4, ¶ 28. Here, even assuming counsel had no obvious
strategic reason for waiving Fleming’s statutory speedy trial right,
there is little doubt that he acted inconsistently with the assertion
of that right by failing to move for dismissal after repeatedly
expressing his intent to do so. Cf. Roberson, ¶ 17 (finding implied
waiver of a statutory right to a timely restitution hearing where the
defendant failed to object when the hearing “fell outside of the
7 ninety-one-day deadline and when the statutory deadline had been
expressly mentioned at the sentencing hearing”).1
¶ 18 In any event, the plain language of section 18-1-405(5) and
Crim. P. 48 is clear: failure to move for dismissal before trial is a
“waiver.” To hold otherwise by characterizing Fleming’s failure to
timely seek dismissal as a “forfeiture” would be to ignore the text of
the statute and the accompanying procedural rule. Because “we
must avoid [statutory] constructions that would render any words
or phrases superfluous,” McCoy v. People, 2019 CO 44, ¶ 38, we
cannot disregard the statute’s declaration that a failure to timely
seek dismissal amounts to a waiver.
C. Constitutional Speedy Trial
¶ 19 Fleming also contends that the trial court and prosecution
violated his constitutional right to a speedy trial. We disagree.
1 To the extent Fleming suggests that the failure to file a motion to
dismiss prior to trial amounted to ineffective assistance of counsel, any challenge to his conviction based on that argument would be better suited for a Crim. P. 35(c) motion. See 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.”).
8 1. Applicable Law
¶ 20 The United States and Colorado Constitutions guarantee all
criminal defendants the right to a speedy trial. U.S. Const. amend.
VI; Colo. Const. art. II, § 16. We apply a four-factor balancing test
to assess whether a defendant’s constitutional speedy trial rights
were violated, considering the following: (1) the length of the delay;
(2) the reasons for the delay; (3) the defendant’s assertion of the
right; and (4) the prejudice to the defendant. Moody v. Corsentino,
843 P.2d 1355, 1363 (Colo. 1993) (citing Barker v. Wingo, 407 U.S.
514, 530 (1972)); see also People v. Chavez, 779 P.2d 375, 376
(Colo. 1989) (noting the Barker test also governs the determination
of a speedy trial claim under the Colorado Constitution). The
defendant bears the burden of establishing that his constitutional
speedy trial rights have been denied. Moody, 843 P.2d at 1363.
¶ 21 Fleming’s constitutional speedy trial claim is unpreserved
because he raised it for the first time in a post-trial motion to
dismiss. However, unpreserved constitutional errors may be
reviewed for the first time on appeal. Reyna-Abarca v. People, 2017
CO 15, ¶ 37. Accordingly, we review Fleming’s constitutional
9 speedy trial claim for plain error. See People v. Jompp, 2018 COA
128, ¶ 14.
2. Analysis
¶ 22 We conclude that the trial court did not violate Fleming’s
constitutional right to a speedy trial.
¶ 23 First, we consider the length of the delay. Although Fleming’s
trial took place nearly three years after he entered his not guilty
plea, more than two and a half years of that delay was attributable
to the defense or to COVID-19. See § 18-1-405(6)(f) (delays to
accommodate defense counsel are attributable to the defendant);
see also United States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023)
(delays caused by COVID-19 cannot “fairly be attributed” to either
the prosecution or defense). The prosecution sought only one
continuance, which moved Fleming’s trial from April 2021 to
August 2021 — a fourth month delay. This relatively short delay
weighs against finding a constitutional speedy trial violation.
¶ 24 Second, we consider the reason for the delay. Again, because
the delays prior to April 2021 were attributable to the defense or to
COVID-19, they weigh against a constitutional violation. Vermont v.
Brillon, 556 U.S. 81, 90 (2009) (delay caused by the defense “weighs
10 against the defendant”). Only the final April 2021 continuance is
attributable to the prosecution. We do have concerns about that
continuance, and question whether the prosecutor exercised due
diligence by choosing not to interfere with the victims’ family
vacation plans. Nonetheless, the delay attributable to the sole
continuance requested by the prosecution amounted to only four
months.
¶ 25 Third, we consider Fleming’s assertion of the right. Although
Fleming did not file a motion to dismiss on speedy trial grounds
before trial began, he did assert his right through multiple
objections and a post-trial motion. Thus, Fleming’s assertion of his
right weighs slightly in favor of a speedy trial violation.
¶ 26 Fourth, we consider whether Fleming was materially
prejudiced by the delay. Prejudice is assessed by weighing three
interests that the right to speedy trial protects: “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the
defense will be impaired.” Moody, 843 P.2d at 1367 (quoting
Barker, 407 U.S. at 532). As to the first interest, Fleming was out
11 on bond for at least part of the pretrial period.2 This weighs against
prejudice as he did not experience “oppressive pretrial
incarceration.” Id. As to the second, although we recognize that a
lengthy pretrial delay may generate anxiety, Fleming offered no
explanation of how the delay caused him any greater anxiety or
concern than the average defendant. Furthermore, he failed to
provide any specific examples of how his anxiety, concern, or
distress prejudiced him. See People v. Nelson, 2014 COA 165, ¶ 41
(noting that the defendant “presented no evidence or offer of proof
to establish any such anxiety or concern beyond that normally to be
expected from the fact of a criminal prosecution”). As to the third,
while a delay of almost three years certainly could have affected
Fleming’s ability to defend himself, most of the delay was
attributable to the defense and nothing in the record supports that
a single four-month continuance requested by the prosecution
impaired Fleming’s case.
2 The record suggests that, during periods that he was not out on
bail, Fleming was incarcerated on other charges at various times during the pendency of his case. As these circumstances were unrelated to the charges at issue here, they have no bearing on whether Fleming suffered oppressive pretrial incarceration.
12 ¶ 27 Balancing the four Barker factors, we conclude the court did
not violate Fleming’s constitutional right to a speedy trial.
III. Prosecutorial Misconduct
¶ 28 Fleming contends that the prosecution committed misconduct
during closing argument. We reject Fleming’s argument under
plain error review.
A. Standard of Review and Applicable Law
¶ 29 We review prosecutorial misconduct that violates a defendant’s
constitutional rights de novo. People v. Castro, 2022 COA 101,
¶ 21. In doing so, we consider whether the alleged misconduct was
improper based on the totality of the circumstances and whether it
warrants reversal. People v. Van Meter, 2018 COA 13, ¶ 23. When
a defendant fails to object to the alleged misconduct, as here, we
review for plain error, reversing only if the error is obvious and
substantial. Hagos v. People, 2012 CO 63, ¶ 14. To rise to the level
of plain error, prosecutorial misconduct must be flagrant or
glaringly improper and so undermine the fundamental fairness of
the trial as to cast serious doubt on the reliability of the judgment
of conviction. People v. Weinreich, 98 P.3d 920, 924 (Colo. App.
2004).
13 ¶ 30 Although the prosecution has wide latitude in the language
and style of closing argument, People v. Rhea, 2014 COA 60, ¶ 46,
prosecutors generally cannot argue that the jury must find a
witness lied in order to acquit the defendant, People v. Cuellar, 2023
COA 20, ¶ 67 (collecting cases). However, “because arguments
delivered in the heat of trial are not always perfectly scripted,
reviewing courts accord prosecutors the benefit of the doubt when
their remarks are ambiguous or simply inartful.” People v. Samson,
2012 COA 167, ¶ 30.
B. Analysis
¶ 31 During closing argument, the prosecutor told the jury that the
defense’s theory was that the incident “was a misunderstanding”
and that “grabbing a child’s butt and squeezing it is not a knowing
act; it’s an accident, and it wasn’t for the purpose of sexual
gratification.” The prosecutor continued:
But if it’s not a misunderstanding, then the girls and the mom have collaborated and created everything out of thin air to falsely accuse a man . . . So you got to ask yourself: Who would reasonably become a character arsonist, light a match, throw it, if they were making it all up? If they were collaborating, if they were game planning on how to ruin someone, who lights a match, if that’s their
14 intent and doesn’t get out of there? Because it’s about to burn, and I don’t want to be here when the heat becomes intense and the flames get hot. Who remains there in that heat, in those flames, for three years to come to you and testify in front of you and in front of their assaulter and the man that assaulted their daughter? That’s a decision you’ll have to make, whether that’s common sense.
I submit to you what you have to believe to conclude the accused is not guilty is that these three girls and the mom of two of them made this all up. They created it out of thin air. That when a 30-year-old man grabs and squeezes the butts of a nine and eleven-year- old girl inside Target, didn’t know what he was doing when he grabbed and squeezed. And that even if he did know, he didn’t have sexual gratification. That’s what you got to believe based on the law the court has given you.
¶ 32 During the subsequent discussion of the elements of sexual
assault, the burden of proof, and other matters, the prosecutor
made several other allegedly improper statements:
And if you consider all the evidence, you have to conclude, unless you decide it’s made up, you can touch little girls in Target on accident, you can squeeze little girls’ butts in Target on accident, and that that’s not a knowing act and that it wasn’t done for the purpose of sexual gratification or arousal, if you can’t believe that then you have to believe he’s guilty, period.
...
15 And to come to a conclusion that these little girls and their mom somehow huddled up before they got to Target and orchestrated this whole thing and would put their family and themselves through the next three years of criminal justice process, you’d have to speculate why someone would do that. You would have to imagine.
If you believe the girls, . . ., that [] Fleming grabbed and squeezed their butts, there is no rational or reasonable or common sense explanation for a thirty-year-old man to do such a thing other than for some sexual thrill or arousal or gratification.
I’m going to ask you to decide who to believe, and that’s your job, not mine. I have argued to you today who I’m asking you to believe, but that’s your decision. Nothing I have said is evidence. It’s argument.
But once you look at all the evidence and once you apply your common sense, there is no other conclusion that a man thirty years old, who in broad daylight outrageously and brazenly grabs and squeezes the butts of two little girls, does so for any other reason than sexual thrill, sexual gratification. And in such a case he’s guilty beyond a reasonable doubt because the girls who had it happen to them came in here and told you under oath that it happened, and they subjected themselves to be in the presence of their assaulter, and they
16 subjected themselves to cross-examination. He’s guilty.
¶ 33 Defense counsel did not object to any of these statements. On
appeal, however, Fleming contends that the prosecutor distorted
the burden of proof by suggesting to the jurors that they could
acquit him only if they found that the prosecution’s witnesses were
lying.
¶ 34 Even assuming the prosecutor committed obvious error by
making these statements, we cannot conclude that they so
undermined the fundamental fairness of Fleming’s trial as to cast
serious doubt on the reliability of his conviction. We reach this
conclusion for two reasons.
¶ 35 First, the challenged statements were brief. See People v.
McMinn, 2013 COA 94, ¶ 70 (finding no plain error where the
prosecutor’s comments “made up a small part of the prosecutor’s
closing argument”). The prosecutor made only fleeting statements
that the jury would “have to believe” the witnesses “made this all
up.” Further, these statements appear to have been made in direct
response to Fleming’s theory that the touching was accidental and
not for sexual gratification. Specifically, the prosecutor asked the
17 jury to “decide who to believe” regarding whether the defense’s
theory comports with common sense. And the prosecutor even
acknowledged, “Nothing I have said is evidence. It’s argument.”
¶ 36 Second, the court properly instructed the jury on the
prosecution’s burden of proof and the beyond a reasonable doubt
standard. See Cuellar, ¶¶ 76-77 (prosecutor’s error in arguing the
jury must disbelieve a witness before it could acquit was harmless
in part because of the court’s proper instructions). In addition to
correctly instructing on each element of the charged offenses, the
court correctly informed the jury that it “must follow the
instructions” given, that the prosecution bore the burden of proof to
prove “each and every element” of the charged crimes “beyond a
reasonable doubt,” and that if the jury found the prosecution “failed
to prove any one or more of the elements of a crime beyond a
reasonable doubt,” it “should find the defendant not guilty of that
crime.” The court also instructed the jury that it is the “sole judge[]
of the credibility of each witness and the weight to be given to the
witness’s testimony” and that it “may believe all of the testimony of
a witness, part of it, or none of it.” Absent any evidence to the
contrary, which Fleming does not allege and which does not appear
18 in the record, “we assume the jury heeded the court’s instructions.”
People v. Villa, 240 P.3d 343, 352 (Colo. App. 2009).
¶ 37 Because the alleged error was not substantial, it does not
warrant reversal under plain error review.
IV. SOLSA
¶ 38 Fleming contends that SOLSA is unconstitutional facially and
as applied. We disagree.
¶ 39 SOLSA governs the sentencing procedures applicable to most
felony sex offenses. See § 18-1.3-1001, C.R.S. 2025. SOLSA
provides that, under certain circumstances, “the district court
having jurisdiction shall sentence a sex offender to the custody of
the department for an indeterminate term of at least the minimum
of the presumptive range specified in section 18-1.3-401 for the
level of offense committed and a maximum of the sex offender’s
natural life.” § 18-1.3-1004(1)(a), C.R.S. 2025. The
constitutionality of SOLSA is an issue of law we review de novo.
People v. Sabell, 2018 COA 85, ¶ 46.
19 B. Facial Challenge
¶ 40 Fleming argues that SOLSA is facially unconstitutional
because it violates procedural due process, substantive due
process, equal protection, the prohibition against cruel and
unusual punishment, and the separation of powers doctrine. As
Fleming acknowledges, divisions of this court have rejected every
facial challenge to SOLSA’s constitutionality. See id. at ¶ 47; People
v. Relaford, 2016 COA 99, ¶ 72; People v. Torrez, 2013 COA 37, ¶
88, People v. Collins, 250 P.3d 668, 679 (Colo. App. 2010); People v.
Villa, 240 P.3d at 359; People v. Firth, 205 P.3d 445, 452 (Colo. App.
2008). We are not persuaded to depart from these decisions, and
therefore we reject Fleming’s contentions for the reasons stated
therein.
C. As-Applied Challenge
¶ 41 To prevail on an as-applied challenge, “the defendant must
show that the statute is unconstitutional under circumstances in
which the [defendant] has acted.” People v. Trujillo, 2025 COA 22, ¶
46 (citation modified). In his appellate briefing, Fleming does not
specifically address how SOLSA is unconstitutional under his
circumstances. He only broadly discusses how SOLSA impacts sex
20 offenders and that his facial constitutional challenges are
“especially apparent” when looking at SOLSA’s application to his
case. Because it is undeveloped, we decline to address his as-
applied challenge on the merits. See Antolovich v. Brown Grp.
Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (declining to
address underdeveloped arguments).
V. Disposition
¶ 42 The judgment is affirmed.
JUDGE YUN and JUDGE SCHOCK concur.