Peo v. Gerle

• Court: Colorado Court of Appeals
• Decided: July 11, 2024
• Docket: 23CA0481
• Status: Unknown

Opinion

23CA0481 Peo v Gerle 07-11-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0481

Douglas County District Court No. 21CR1064

Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donald Louis Gerle,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE GOMEZ

Kuhn and Richman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 11, 2024

Philip J. Weiser, Attorney General, Jaycey D. DeHoyos, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Fuller & Ahern, P.C., Brian M. Close, Parker, 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. 2023.

1

¶ 1 Defendant, Donald Louis Gerle, appeals the judgment of

conviction entered on jury verdicts finding him guilty of first degree

assault, second degree assault, and false imprisonment. We reverse

and remand for a new trial.

I. Background

A. The Factual Allegations

¶ 2 Gerle and the victim — Gerle’s wife — were married for over

twenty-five years and, at the time of the charged conduct, had two

teenage children living at home. The conduct occurred over the

course of a weekend, during which, according to the victim, Gerle

confined her to their bedroom closet and violently assaulted her,

causing severe injuries. The victim admitted this was the first time

Gerle had ever been violent with her.

¶ 3 The couple began arguing on Thursday evening. The victim

said that Gerle became angry when she couldn’t remember the last

name of someone she’d dated thirty years earlier. During that

argument, Gerle allegedly threw a Pringles can at her, bruising her

thigh. The argument subsided that night but picked back up again

the following afternoon. When the victim still couldn’t remember

the last name of the person she’d dated, Gerle allegedly hit her on

2

the legs with a camera tripod. The couple moved upstairs to their

bedroom where they continued arguing, at that point concerning

the victim’s inability to remember the name of a book she’d read.

Gerle allegedly straddled the victim on the bed and hit her, bruising

her face and splitting her lip.

¶ 4 The argument picked back up again on Saturday afternoon in

the couple’s bedroom. At some point, they ended up in their walk-

in closet. The victim said that over the course of the next fourteen

hours, Gerle confined her in the closet and hit her all over her body

with a variety of objects, including his hand, hangers, a belt buckle,

a pair of steel toe boots, and a magnifying glass. She also said that

Gerle had her phone during most of this time but briefly returned it

to her so she could text a friend about covering her duties at church

on Sunday morning.

¶ 5 The victim reported that throughout the weekend, Gerle was

using cocaine and drinking alcohol, which he repeatedly dumped

over her head. At some points, she also voluntarily used cocaine; at

other points, Gerle allegedly forced her to use it. She may also have

consumed some alcohol.

3

¶ 6 According to the victim, Gerle finally left the closet and went to

bed early Sunday morning. She tried to escape while he was

sleeping but was too injured and kept losing consciousness. She

eventually joined Gerle in bed, where she stayed all day. Late that

night, she got up while Gerle was in the bathroom, slid herself down

the stairs, and drove herself to the hospital.

¶ 7 The victim was treated for two black eyes, a collapsed lung,

and two broken ribs. She had bruises on her face, behind her ears,

across her back and torso, and on her legs and feet. She also had a

puncture wound on her ankle, which later became infected and

required multiple surgeries to remove the resulting abscess.

B. The Trial

¶ 8 Gerle was charged with first degree assault for assaulting the

victim with steel toe boots as a deadly weapon, second degree

assault for assaulting the victim, and false imprisonment for

confining the victim.

¶ 9 At trial, Gerle attempted to raise as his theory of defense that

the incident was (or at least started as) a consensual role-play

encounter involving bondage, discipline, dominance, submission,

sadism, and masochism (BDSM).

4

¶ 10 Defense counsel tried to introduce this theory during his

opening statement, stating,

Things aren’t always what they seem. You’ll

learn that when [the couple] were alone, all by

themselves, when no one was looking, they

lived a different lifestyle, a lifestyle that they’ll

probably be embarrassed, if not ashamed, to

have to publish to a jury of their peers. A

lifestyle that was different than the lifestyle

that they portrayed to their children and to

their community. You’ll hear about the use of

cocaine during that weekend and the days

leading up to that weekend. You’ll learn about

[the couple]’s ongoing and regular sexual

fantasy role-playing.

The prosecutor objected on the basis that the defense hadn’t

complied with the notice requirements of the rape shield statute,

section 18-3-407, C.R.S. 2023.

¶ 11 Defense counsel responded that the rape shield statute didn’t

apply because Gerle wasn’t charged with a sexual crime and the

victim wasn’t a sexual assault victim. He also explained that the

defense intended to introduce evidence that the couple had texted

each other in the week leading up to the charged conduct about a

planned, consensual BDSM role-playing encounter that would

involve sixteen whippings. This evidence, he argued, was relevant

to the issues of consent and intent.

5

¶ 12 The trial court sustained the objection based on the rape

shield statute, struck the objected-to portion of defense counsel’s

argument, and ordered the jury to disregard it. Defense counsel

then concluded the opening statement without making any

reference to BDSM activities.

¶ 13 Later that day, defense counsel proffered an exhibit containing

the referenced text messages between Gerle and the victim from the

Monday before the charged conduct. In the text messages, Gerle

repeatedly asked the victim for the name of a book she’d mentioned

and accused her of lying about it. She eventually sent him a

screenshot of an erotic novel. Gerle responded, “Good PET . Now

SIR has to check the date and story line to make sure ur not lieing ,

but if not your punishment will be much less. You still need to b

whipped on the back 16 times for your Disobedience – SIR.” She

replied, “Thank you SIR[,] PET deserves whatever SIR delivers.” He

asked her again for the name of the book she’d mentioned, and the

following exchange ensued:

The victim: Three Simple Rules ( the

blindfolded club)

The victim: The rules are:

1. Girl can’t ask questions

6

2. Girl answers SIRS questions

HONESTLY

3. No orgasm without permission

Gerle: Those 3 rules will b in our SUB /

DOM contract. W a list of

punishments for breaking

The victim: Yes, SIR

. . . .

Gerle: I still have a hard on from u telling

me about that story. Its date is

right, but u still have some lashes

coming.

The victim: I am looking forward to them SIR

The victim: PET is waiting for SIR

. . . .

The victim: I have never felt desire like I do

now. You have awakened a

monster

Gerle: Please dont keep turning me on.

SIR needs to rest his parts . But I

feel the same way.

. . . .

Gerle: SIR needs to know what makes

PET hot.

The victim: Besides what SIR already knows.

The victim: PET gets hot with anticipation of

what’s coming. PET just realized

she likes the soft whip

7

The victim: PET like talking dirty with SIR

The victim: PET likes almost getting caught

Gerle: U haven’t felt anything yet. The

real fun will begin when ur ready to

tell me ur deepest dirtiest fantasys

w no fear of judgement from SIR.

Nothing turns me on more than

hearing u talk about real or

imagined sex stories.

. . . .

Gerle: I think i will get that lock box u

suggested. U can start by writeing

about what goes on in your

naughty head.

The victim: Yes, please

Gerle: Didnt i ask PET not to turn me on?

The victim: I’m sorry SIR

Gerle: U still sound horny PET. I can see

why u liked this Three Simple

Rules book. Now write a story

about a hot wife who has a secrete

prostitute fantasy. Part truth part

fiction. . . .

The victim: Yes SIR. What is the due date

please?

Gerle: I want it by Friday . . . .

The victim: Yes, SIR.

. . . .

8

The victim: Love you. Being away from you is

worse than a whip

The victim: I serve one Master. You know that.

I love you.

Gerle: And i serve one amazing , beautiful

, Hot Wife . Submissive / PET

The victim: Thank you SIR

¶ 14 The court agreed to review the text messages, accept briefs on

the applicability of the rape shield statute, and research the issue

before the proceedings the next day.

¶ 15 That evening, defense counsel filed a combined brief on the

applicability of the rape shield statute and motion for a mistrial. In

addition to reiterating the defense’s arguments as to why the

statute didn’t apply, counsel argued that the effect of the court’s

restriction of his opening statement and its instruction to the jury

to disregard his theory of the case had prejudiced the defense,

establishing grounds for a mistrial.

¶ 16 The next day, the trial court denied the motion for a mistrial

without revisiting its ruling on the rape shield statute. The court

also ruled that defense counsel could ask the victim in cross-

examination whether the charged conduct was consensual but

would be stuck with the victim’s answer. The court added that

9

defense counsel could ask the victim about the text messages and

use them for impeachment if he could “connect [them] to the

timeframe that’s relevant to these charges” — “in other words, . . . if

the[] [texts] relate to the dates and times charged.” But, the court

continued, “[i]f [they’re] not related” and the victim “says, ‘No, . . .

we were talking about this ahead of time, what happened that night

is totally separate,’ then [he would be] stuck with that answer.” The

court further ruled that “[w]hether or not they had engaged in prior

sexual role-playing that involved beating, that left bruises and other

physical injuries is not relevant.”

¶ 17 In cross-examining the victim, defense counsel started to ask,

“[I]s it true that you and Mr. Gerle engaged in consensual whipping

that week leading up to —” when the prosecutor objected. The

court sustained the objection, ruling that defense counsel could

only ask whether Gerle and the victim engaged in such conduct on

the dates of the charged conduct — not whether they had done so

previously. Defense counsel then asked the victim whether she and

Gerle had consented to any whipping during the charged incident,

and she responded “No, not whipping, not like he did to me.” She

went on to say that they “had a cat and nine tails thing” that they

10

would use “gently” but “weren’t engaged in that during these days.”

As the court had ordered, defense counsel didn’t ask any follow-up

questions at that time.

¶ 18 Defense counsel later asked the victim about text messages

she’d sent to Gerle on that Friday morning — which aren’t included

in the record — saying that she wanted every night to be like last

night and that she’d never felt more important, loved, and desired

by him as she had then. She acknowledged that she had sent the

texts but said she didn’t recall sending them or know what they

were referencing. Defense counsel moved to admit the texts as

prior inconsistent statements, but the court sustained the

prosecutor’s objection based on a lack of foundation authenticating

the texts as having been sent by the victim.

¶ 19 Gerle didn’t testify at trial.

¶ 20 The jury convicted Gerle of the three charged offenses. It also

found, in conjunction with a crime of violence sentence enhancer,

that Gerle had caused serious bodily injury as to both assault

offenses. The trial court sentenced Gerle to a total term of twenty-

two years’ imprisonment.

11

C. This Appeal

¶ 21 On appeal, Gerle contends that (1) the trial court erred by

concluding that the rape shield statute applies and consequently

limiting defense counsel’s opening statement; (2) the trial court

erred by denying his request for a mistrial based on misapplication

of the rape shield statute; (3) the trial court erred by improperly

excluding evidence during cross-examination of the victim; (4) the

cumulative effect of these errors warrants reversal; and (5) the trial

court erred in imposing his sentence.

¶ 22 We start by addressing Gerle’s first and third contentions of

error. Because we conclude that the court erred in both respects

and that the cumulative effect of those two errors warrants reversal,

we reverse the judgment and remand the case for a new trial. We

then briefly address some of Gerle’s other contentions that are likely

to arise on remand and decline to consider the others as moot.

II. Limitations on Opening Statement

¶ 23 Gerle contends that the trial court erred by limiting defense

counsel’s opening statement based on a misapplication of the rape

shield statute. We agree.

12

¶ 24 We review de novo determinations about the applicability of

the rape shield statute. People v. Orozco, 210 P.3d 472, 478 (Colo.

App. 2009). We review for an abuse of discretion limitations a trial

court places on opening statements. People v. Harmon, 284 P.3d

124, 129-30 (Colo. App. 2011). A trial court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair or

is based on an incorrect understanding of the law. People v.

Owens, 2024 CO 10, ¶ 65.

¶ 25 We conclude that the trial court erred by determining that the

rape shield statute applies to this case. The rape shield statute

“applies only when either the witness is a sexual assault victim or

the crime charged is a sexual offense.” People v. Carlson, 72 P.3d

411, 419 (Colo. App. 2003); see also People v. Miller, 981 P.2d 654,

657 (Colo. App. 1998) (the rape shield statute didn’t apply where,

among other things, “the victim was not a rape victim [and] the

defendant was not accused of sexual assault”). The crimes charged

in this case — first and second degree assault and false

imprisonment — weren’t sexual offenses. And there was no

allegation that the victim had been sexually assaulted. Therefore,

13

the rape shield statute doesn’t apply. Indeed, the People don’t

attempt to argue on appeal that it does.

¶ 26 Because the court’s application of the rape shield statute was

erroneous, so too were the limits it imposed on defense counsel’s

opening statement precluding any mention of BDSM activities. The

court didn’t cite any basis for limiting the opening statement other

than the rape shield statute; and, as discussed in the next section,

the basis the court used for excluding the underlying evidence later

in the trial was also erroneous. Thus, the limitations on the

defense’s opening statements were erroneous and constitute an

abuse of discretion. See Owens, ¶ 65 (a court abuses its discretion

if its decision is “based on an incorrect understanding of the law”).

III. Exclusion of Evidence

¶ 27 Gerle also contends that the trial court erred by excluding

evidence during the victim’s cross-examination — including, in

particular, evidence concerning prior and planned BDSM role-

playing encounters. Again, we agree.

¶ 28 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Hood, 2024 COA 27, ¶ 6.

14

¶ 29 Because the rape shield statute doesn’t apply to this case, the

trial court’s exclusion of the evidence cannot be upheld on that

basis. However, evidence that is improperly excluded under the

rape shield statute may still be excluded under general relevance

principles. See id. at ¶ 18.

¶ 30 To be relevant, evidence must be both material and probative.

Fletcher v. People, 179 P.3d 969, 974 (Colo. 2007). Evidence is

material if it relates to a fact that is of consequence to the

determination of the action. Id.; see also CRE 401. We look to the

elements of the crimes charged to assess materiality. Fletcher, 179

P.3d at 974. Evidence is probative if it tends to prove the

proposition for which it’s offered. Id.; see also CRE 401. Relevant

evidence is admissible unless another rule or legal provision

provides otherwise. CRE 402. For instance, under CRE 403, such

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusing or

misleading the jury, undue delay, waste of time, or needless

presentation of cumulative evidence.

¶ 31 We conclude that the trial court abused its discretion by

declining to admit the BDSM-related evidence under general

15

relevance principles. In reaching this conclusion, we are guided by

People v. Garcia, 179 P.3d 250 (Colo. App. 2007), in which a

division of this court reversed based on the exclusion of similar

evidence. In that case, the defendant was charged with sexual

assault for holding the victim at knifepoint, binding her hands and

feet, and forcing her to drink alcohol and perform sexual acts. Id.

at 253. The defendant pursued a theory of defense that the victim,

whom he’d previously dated, had consented to the conduct. Id. He

sought to admit evidence that the victim had a rape fantasy, which

they’d acted out multiple times; that they’d previously engaged in

bondage and rough sex at her request; and that they’d been

intimate as recent as a week before the charged conduct. Id. The

trial court excluded this evidence under the rape shield statute and

general relevance principles. Id. at 253-54. The division reversed,

concluding that the evidence wasn’t barred by the rape shield

statute (for different reasons than in this case) and should’ve been

admitted under general relevance principles. Id. at 254-58.

¶ 32 Similarly, here, having concluded that evidence of the couple’s

prior and planned BDSM role-playing encounters wasn’t subject to

the rape shield statute, we now also conclude that such evidence

16

should’ve been admitted under general relevance principles. The

evidence is both material and probative because it relates to facts

that are of consequence in determining the action and it tends to

prove the victim’s consent and Gerle’s lack of intent. See Fletcher,

179 P.3d at 974.

¶ 33 Because lack of consent is an element of false imprisonment,

see § 18-3-303(1), C.R.S. 2023, the victim’s potential consent to

being locked in a bedroom closet to engage in BDSM activities is a

“fact that is of consequence to the determination of the action.”

CRE 401. Likewise, if the incident began as a consensual BDSM

encounter, then Gerle may have lacked the intent to confine the

victim against her will, which would negate the knowing element of

false imprisonment. See § 18-3-303(1).

¶ 34 The issue of consent was less relevant to the assault charges,

given the allegations and the jury’s findings that Gerle inflicted

serious bodily injury. See § 18-1-505(1)-(2), C.R.S. 2023; People v.

Bagwell, 2022 COA 44, ¶ 24. Nonetheless, the excluded evidence

was relevant to Gerle’s intent, which was an element of both assault

charges. See § 18-3-202(1)(a), C.R.S. 2023 (requiring intent to

cause serious bodily injury to establish the type of first degree

17

assault charged in this case); § 18-3-203(1)(g), C.R.S. 2023

(requiring intent to cause bodily injury to establish the type of

second degree assault charged in this case). If the incident began

as a consensual BDSM encounter, then Gerle may not have had the

intent to cause bodily injury or serious bodily injury to the victim.

Instead, the injuries could’ve been recklessly inflicted, as the

defense argued at trial. Moreover, the excluded evidence may have

suggested that some of the more minor injuries the victim sustained

were inflicted with her consent.

¶ 35 Thus, evidence that the couple had previously participated in

BDSM role-playing encounters and had just planned another such

encounter makes it more probable that the victim consented to at

least some of the conduct and makes it less likely that Gerle had

the requisite intent for the three charged crimes. See Garcia, 179

P.3d at 256 (evidence of prior discussions about a rape fantasy was

relevant because it would enable the defendant to “make a rational

argument that his admissions of binding [the victim] and cutting off

her clothing were reconcilable with consent, thus supporting his

claim of innocence”); id. at 257 (evidence of the previous sexual

relationship between the defendant and the victim, including recent

18

sexual activities and prior acts of bondage and rape fantasy role

play, was relevant to establish consent).

¶ 36 Additionally, this evidence isn’t too remote in time to be

relevant. While temporal remoteness may factor into the relevance

determination, it generally only affects the weight given to particular

evidence — not the admissibility of that evidence. See Fletcher, 179

P.3d at 974; People v. Taylor, 804 P.2d 196, 202 (Colo. App. 1990);

People v. Trefethen, 751 P.2d 657, 659 (Colo. App. 1987).

¶ 37 Here, the text messages the defense sought to admit, like some

of the evidence in Garcia, occurred within a week of the charged

conduct. See Garcia, 179 P.3d at 257 (evidence that the defendant

and the victim had consensual sex a week before the alleged sexual

assault wasn’t too remote in time). More generally, the trial court in

this case made essentially the same error the trial court made in

Garcia by ruling that only evidence regarding the time period of the

charged conduct was relevant and thus excluding as irrelevant

evidence of previous consensual conduct between the defendant

and the victim. See id. at 253, 256. Much like the division in

Garcia, we conclude that such evidence is relevant to the issue of

consent, see id. at 255-57, as well as to the issue of intent.

19

¶ 38 Furthermore, we conclude that the probative value of this

evidence isn’t substantially outweighed by the danger of unfair

prejudice, confusing or misleading the jury, undue delay, waste of

time, or needless presentation of cumulative evidence. See CRE

403. Although the trial court didn’t explicitly perform this analysis,

we may do so on appeal. See Garcia, 179 P.3d at 257. As we’ve

explained, the evidence of prior and planned BDSM role-playing

encounters was material and probative of both the victim’s consent

and Gerle’s intent. And, as in Garcia, “any possible prejudice to the

victim from [the admission of] additional details of her sexual

conduct with [Garcia] pales in comparison with the relevance of the

particular nature . . . of the relationship.” Id. at 258; see also

People v. Vanderpauye, 2023 CO 42, ¶ 6 (“[T]he balance inherent in

CRE 403 should be struck in favor of admissibility.”). Nor do we

view the evidence as presenting a risk of confusing or misleading

the jury, causing undue delay, wasting time, or presenting

needlessly cumulative evidence. Thus, the evidence is admissible

under CRE 403.

¶ 39 Accordingly, we conclude that the trial court abused its

discretion by excluding the BDSM evidence on the basis of the rape

20

shield statute (to the extent that it was a basis for the trial court’s

ruling) and lack of relevance.

1

IV. Cumulative Error

¶ 40 We also conclude that, cumulatively, the two errors we’ve

identified warrant reversal of the judgment.

¶ 41 Even when individual errors may be deemed harmless,

reversal is required if “the cumulative effect of [multiple] errors and

defects substantially affected the fairness of the trial proceedings

and the integrity of the fact-finding process.” Howard-Walker v.

People, 2019 CO 69, ¶ 24 (alteration in original) (quoting People v.

Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666 (1980)). Thus, we

reverse under the cumulative error doctrine if we’ve “identif[ied]

multiple errors that collectively prejudice the substantial rights of

the defendant, even if any single error does not.” Id. at ¶ 25.

1

The People contend that evidence of the text exchange was

inadmissible for the additional reason that the victim didn’t provide

any inconsistent testimony that would’ve warranted its admission

under section 16-10-201(1), C.R.S. 2023, notwithstanding that it

included hearsay. But the trial court curtailed the questions

defense counsel could ask the victim about BDSM, forestalling the

defense’s ability to establish any such inconsistency.

21

¶ 42 We decline to resolve the parties’ dispute as to which standard

of reversal applies to this case. Even assuming that the less

onerous nonconstitutional harmless error standard applies,

notwithstanding that the court’s errors may well have precluded

Gerle from presenting a defense or conducting a meaningful cross-

examination on material issues, we conclude that reversal is

warranted. See Krutsinger v. People, 219 P.3d 1054, 1058, 1061

(Colo. 2009); Garcia, 179 P.3d at 255, 258. Under this standard,

reversal is required if the errors “substantially influenced the

verdict or affected the fairness of the trial proceedings.” Hagos v.

People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,

342 (Colo. 1986)).

¶ 43 We conclude that the combined effect of the two errors —

limiting defense counsel’s opening statement and excluding

evidence of prior and planned BDSM role-playing encounters —

substantially influenced the verdict and affected the fairness of the

trial proceedings.

¶ 44 Collectively, these two errors undercut the primary theory of

defense Gerle had intended to raise at trial: that because they were

engaging in consensual BDSM activities, the victim had consented

22

to at least some of the charged conduct and he lacked the requisite

intent for the charged offenses. The combined effect of striking the

BDSM-related references from opening statement, instructing the

jury to disregard that portion of the opening statement, and

excluding BDSM-related evidence at trial prevented Gerle from

presenting his alternative explanation for why he and the victim

were locked in their closet and why he started striking her. Yet if

the incident was (or began as) a consensual BDSM role-playing

encounter, then the confinement and some of the injuries may have

been inflicted with consent; Gerle may have locked the victim in the

closet without any intent to confine her against her will; and Gerle

may have injured the victim out of recklessness, rather than an

intent to cause bodily injury or serious bodily injury. And if the

jury had found consent or lack of intent, it could’ve acquitted Gerle

on some or all three of the charges. See People v. Stewart, 2017

COA 99, ¶ 41 (reversing under the cumulative error doctrine where

the trial court’s errors “impacted the theory of defense”); Garcia,

179 P.3d at 256-57 (without the excluded evidence related to rape

fantasy and bondage, it was “very unlikely that reasonable jurors

would have considered the [charged] conduct consensual”).

23

¶ 45 Additionally, these errors prevented Gerle from effectively

challenging the victim’s testimony and credibility, which were

central to the prosecution’s case. Neither the occurrence of the

incident nor the fact that Gerle perpetrated it were in dispute;

rather, the questions were what exactly happened in the bedroom

and closet, whether the victim consented to it, and whether Gerle

had the requisite intent for the charged offenses. And because

Gerle and the victim were the only eyewitnesses, the prosecution’s

case rested almost entirely on the victim’s testimony and credibility.

Cf. People v. Cobb, 962 P.2d 944, 950 (Colo. 1998) (“With the two

main witnesses being the perpetrator and the victim, the

significance of the victim’s credibility to the outcome of the trial

cannot be overstated.”). By limiting defense counsel’s opening

statement and cross-examination of the victim, the court prevented

Gerle from meaningfully challenging the victim’s version of events

as well as her credibility.

2

2

The victim’s brief allusion to “a cat and nine tails thing” that the

couple sometimes used “gently” but not during the days in question

didn’t alleviate the harm. In particular, it didn’t enable the defense

to question the victim about her texts with Gerle concerning a

planned whipping just a few days before the charged conduct.

24

¶ 46 Lastly, the trial spanned only four days. See Stewart, ¶ 40

(courts consider “the length of the trial” when evaluating cumulative

error) (citation omitted). The “relatively short” length of the trial

“add[s] emphasis to the errors.” Id. at ¶ 42.

¶ 47 Given the nature of the errors, their interrelationship and

combined effect, the lack of any remedial efforts to cure the errors,

and the short length of trial, we cannot say that the errors didn’t

substantially influence the verdict or affect the fairness of the trial.

See id. at ¶ 40 (citing considerations for a finding of cumulative

error). Therefore, we reverse the judgment and remand the case for

a new trial on all three of Gerle’s convictions.

V. Other Contentions of Error

¶ 48 We briefly address some of the evidentiary issues raised in the

parties’ briefs that are likely to arise on remand in the event of a

retrial. See Herrera v. Lerma, 2018 COA 141, ¶ 12.

• BDSM evidence: While we conclude that evidence of

previous or planned BDSM activities is relevant and is

not rendered inadmissible by CRE 403, we don’t address

any other bases — like hearsay, lack of authentication, or

25

other objections — that may be raised to exclude or limit

such evidence in a new trial.

• The victim’s Friday morning texts saying that she wanted

every night to be like last night and that she’d never felt

more important, loved, and desired by Gerle: These texts

are relevant to the issues of consent and the victim’s

credibility, and their probative value is not substantially

outweighed by the danger of unfair prejudice or other

concerns. See CRE 401, 403. But because these texts

may be presented in a different way in any retrial, we

don’t determine whether the trial court erred by

concluding that they hadn’t been properly authenticated

in the first trial. We also don’t determine whether the

texts or statements concerning them may be excluded at

any retrial on other bases, such as hearsay concerns.

• The victim’s cocaine use: Evidence that the victim

voluntarily used cocaine prior to and during the charged

incident is relevant to the victim’s credibility (given her

statements to investigators that she had never used

cocaine voluntarily but had been forced to do so during

26

the charged incident) and whether the victim consented

to any of the charged conduct; its probative value is not

substantially outweighed by the danger of unfair

prejudice or other concerns; and it is not improper other

acts evidence. See CRE 401, 403, 404(b). We don’t

determine whether any specific texts or other statements

concerning cocaine use may be excluded at any retrial on

other bases, such as authentication or hearsay concerns.

• The victim’s alcohol consumption: Evidence that the

victim voluntarily consumed alcohol prior to and during

the charged incident is relevant to the victim’s credibility

(given her contradictory statements as to whether she

consumes alcohol and whether she consumed any during

the time of the charged incident) and may potentially be

relevant to whether the victim consented to any of the

charged conduct; its probative value is not substantially

outweighed by the danger of unfair prejudice or other

concerns; and it is not improper other acts evidence. See

CRE 401, 403, 404(b). We don’t determine whether any

specific statements concerning alcohol use may be

27

excluded at any retrial on other bases, such as

authentication or hearsay concerns.

¶ 49 Gerle’s contentions regarding his motion for mistrial and his

sentence are moot, so we decline to address them. See People v.

Baker, 2019 COA 165, ¶ 31 (declining to address a sentencing

challenge that was mooted by the division’s decision to reverse and

remand the relevant convictions for retrial), aff’d on other grounds,

2021 CO 29.

VI. Disposition

¶ 50 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE KUHN and JUDGE RICHMAN concur.