23CA1930 Peo v Kane 12-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1930 El Paso County District Court No. 22CR5049 Honorable William H. Moller, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert Eugene Kane,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE MEIRINK Fox and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 24, 2025
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 A jury convicted defendant, Robert Eugene Kane, of sexual
assault on a child by one in a position of trust. He appeals, and we
affirm.
I. Background
¶2 During the summer of 2021, E.M. developed a friendship with
Kane’s daughter and spent four to seven nights a week at Kane’s
house. Because E.M. was fifteen and couldn’t drive, Kane often
picked her up and drove her to his house when she visited. E.M.
often referred to Kane as “dad,” and he texted her daily.
¶3 In July 2021, E.M. visited Kane’s home. E.M., Kane, Kane’s
wife, and Kane’s daughter were playing a Wii bowling game. E.M.
bent over to play with the family’s dog, and Kane struck the lower
part of her buttocks twice with an open hand. Kane’s daughter was
standing a few feet away and heard but did not see the swat.
Kane’s wife was also a few feet away and saw the incident. E.M.
testified that the swat hurt and that when she turned around to see
Kane’s reaction, he was laughing. E.M. testified that Kane told her
that she was “asking for it.”
1 ¶4 E.M. testified that she did not initially think the strike was
sexual. However, a few months later, Kane sent E.M. the following
text:
Good morning. I hope you can make it [because] this is the weekend I was going to smoke with you guys. I don’t know how you feel about this, but I’m going to say it and I hope you don’t hate me for it. I hope someday I can see you in my favorite outfit and give you a tongue lashing to remember. There, it’s off my chest. I won’t mention anything about it again unless you want me to. Have a great day.
¶5 E.M. then believed the swat was sexual in nature. She
reported the swat to police two days after receiving Kane’s text. The
police interviewed Kane, who claimed that the swat was not sexual,
and the text reference to “tongue lashing” had many different
meanings (like yelling at somebody). Kane was charged with sexual
assault on a child by one in a position of trust in violation of section
18-3-405.3(1), C.R.S. 2025.
¶6 Kane argued at trial that he struck E.M.’s buttocks in a joking
manner. The jury found him guilty, and the court sentenced him to
ninety days in jail and an indeterminate sentence of ten years to life
of sex offender intensive supervision probation.
2 II. Analysis
¶7 Kane raises multiple arguments on appeal. He argues that
(1) he was denied the right (a) to be present, (b) to counsel, and
(c) to due process when the judge addressed the jury during
deliberations without him and his attorney; (2) the prosecution
failed to prove beyond a reasonable doubt that Kane was in a
position of trust or that the buttocks swat had a sexual purpose;
(3) the text messages exchanged between Kane and E.M. were
extrinsic CRE 404(b) evidence, and the admission of that evidence
without a CRE 404(b) analysis or a limiting instruction requires
reversal; (4) the lead detective improperly testified that the charges
were supported by probable cause and the defense witnesses were
biased; and (5) cumulative error requires reversal. We disagree with
Kane’s contentions and address each in turn.
A. Kane Was Not Denied His Right to Be Present, to Counsel, or to Due Process During the Challenged Exchange Between the Judge and the Jury
¶8 Kane argues that the trial court reversibly erred by depriving
him of his right to be present, his right to counsel, and his right to
due process when it addressed a “question” from the jury during
deliberations. We disagree.
3 1. Additional Facts
¶9 Closing arguments occurred on a Friday afternoon. The jury
didn’t reach a verdict that day, and they were instructed to return
on Monday morning at 10:30 a.m. On Monday morning, a juror
called the court to relay that she was delayed because of a medical
appointment. The court held a short conference with counsel to
discuss scheduling. Counsel and the court agreed that when the
jury arrived, the court would instruct them that they were not
needed until 1 p.m. The court asked counsel if they wanted to be
present for that discussion with the jury. Defense counsel declined,
saying,
I’m upstairs doing a felony plea here pretty quickly so I’m ok, Judge, if you just instruct them. I trust that, obviously, potentially there will be a record, but I don’t need to be there in person.
The prosecutor also agreed that she did not need to be present.
Defense counsel said he would tell Kane to return to court at 1 p.m.
¶ 10 The court brought the jurors into the courtroom and explained
that they weren’t needed until that afternoon. One of the jurors
then said the following:
4 JUROR: When we were waiting to come in, the Defendant’s wife came — and that —
THE COURT: Yes, I heard about that.
JUROR: Ok.
THE COURT: And so I’m going to go ahead and address that with Defense Counsel —
THE COURT: — and [the prosecution].
JUROR: Ok. We didn’t say anything back. We were just —
THE COURT: No, no, no. I — I’m just going to tell you that that was what I would consider an inappropriate communication. So, I do appreciate it if that happens again, please let me know and I’ll take whatever additional action. I think she probably thought she was doing a — everybody a favor —
JUROR: Yeah.
THE COURT: But unfortunately, that isn’t appropriate. Alright, any other questions I can ask — or any answer for any of you.
¶ 11 The jury was dismissed to reconvene that afternoon.
2. Right to Be Present
¶ 12 A defendant has a right to be present at every critical stage of
their criminal trial. People v. Cardenas, 2015 COA 94M, ¶ 21.
Stages of criminal proceedings have been deemed “critical” when
5 there exists more than a “minimal risk” that the absence of the
defendant’s counsel might impair the defendant’s right to a fair
trial. People v. Wright, 2021 COA 106, ¶ 37 (quoting Key v. People,
865 P.2d 822, 825 (Colo. 1994)). A court’s discussion with the
jurors can be a critical stage in a criminal proceeding. People v.
Guzman-Rincon, 2015 COA 166M, ¶ 20. But “the right to be
present is not constitutionally guaranteed when the defendant’s
presence would be useless or when the benefit of the defendant’s
presence would be ‘but a shadow.’” Zoll v. People, 2018 CO 70, ¶ 20
(quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). “Whether a
trial court violated a defendant’s right to be present is a
constitutional question that [we review] de novo.” Id. at ¶ 15
(citation omitted).
¶ 13 The court did not violate Kane’s right to be present because
his presence during the court’s exchange with the jury would have
been useless. See Zoll, ¶ 20. Our review of the record doesn’t
indicate that Kane’s presence during the exchange was necessary to
safeguard the proceeding’s fairness, and Kane hasn’t explained
what he could have offered, beyond speculating that he might have
known something about the encounter because his wife was
6 involved. The court addressed the jury to let it know of a delay, and
the court’s response to the juror’s comment about encountering
Kane’s wife was appropriate and unrelated to the issues the jury
was to decide. See id. (“A defendant has the right to be present
‘whenever his presence has a relation, reasonably substantial, to
the fullness of his opportunity to defend against the charge.’”
(quoting Stincer, 482 U.S. at 745). Under these circumstances,
Kane’s presence would have had no practical effect on the
proceeding, and his right to be present was not violated.
3. Right to Counsel
¶ 14 The State contends that defense counsel waived his right to be
present when the court addressed the jury. Rights can be waived,
but a waiver of a fundamental right such as a right to counsel
requires a knowing, voluntary, and intelligent waiver by the
accused. Phillips v. People, 2019 CO 72, ¶ 16 n.3. Because defense
counsel could not waive Kane’s right to counsel on Kane’s behalf,
and Kane’s absence from the proceeding prevented him from
waiving his right to counsel, this argument was not waived.
Accordingly, we will review it.
7 a. Standard of Review and Applicable Law
¶ 15 Both the United States and Colorado Constitutions guarantee
a defendant the right to counsel “at every critical stage of a criminal
proceeding.” Key, 865 P.2d at 825; see U.S. Const. amend. VI;
Colo. Const. art. II, § 16. As discussed above, a court’s discussion
with the jurors can be a critical stage in a criminal proceeding.
Guzman-Rincon, ¶ 20. “We review whether a defendant has been
denied representation at a critical stage of the proceedings de novo.”
Id. at ¶ 15.
b. Analysis
¶ 16 Kane contends that he was denied the right to counsel when
the judge instructed the jury that Kane’s wife — “a key defense
witness” — had behaved inappropriately. We disagree because the
challenged exchange did not occur during a critical stage of the
proceeding.
¶ 17 Kane relies on Leonardo v. People, 728 P.2d 1252 (Colo. 1986),
and Key, which held that the ex parte communications between the
judge and jury deprived the defendant of his constitutional right to
counsel at a critical stage of the proceedings. Leonardo, 728 P.2d at
1256; Key, 865 P.2d at 826. As explained below, the facts of Key
8 and Leonardo are distinguishable from Kane’s situation because the
judge’s statements in those cases occurred during a critical stage of
the trial.
¶ 18 In Leonardo, the defendant was charged with theft by
receiving, which required him to “know[] or believ[e]” that the item
in question had been stolen. 728 P.2d at 1254. During
deliberations, the jury asked whether the instruction for “[k]nowing
or [b]elieving” was the same as “[h]aving a [s]uspicion of.” Id.
(emphasis omitted). Without consulting counsel for either side, the
judge told the jury it had to reach a verdict “applying the words as
you find them in the instructions.” Id. The jury made no further
inquiries and found Leonardo guilty. Leonardo appealed, arguing in
part, that he was denied the right to counsel.
¶ 19 Because the jury’s question “betrayed a serious
misunderstanding regarding the culpable mental state required for
the crime of theft by receiving,” the supreme court concluded that it
could not say that “the failure of the trial judge to obtain the
presence of the defendant and his counsel and to give defense
counsel the opportunity to be heard was harmless beyond a
reasonable doubt.” Id. at 1258.
9 ¶ 20 Unlike the exchange between the judge and jury in Leonardo,
the exchange here didn’t have the potential to influence the jury’s
deliberations or the outcome at trial. The jurors didn’t ask a
question related to the instructions, seek clarification about their
meaning, or indicate to the court that they misunderstood them.
The exchange neither addressed nor affected the jury’s
understanding of their instructions or their deliberations and
carried no risk of influencing the verdict.
¶ 21 Although, here, the court informed the jury that the witness’s
communication was inappropriate, the exchange didn’t involve any
issue central to the determination of guilt or innocence. The jury
reported the contact, and the court responded by reminding it that
the communication — like any communication between a witness
and the jury — was improper.
¶ 22 This case is also distinguishable from Key, when the court
brought the jurors back into the courtroom during deliberations to
discuss scheduling matters without informing either defense
counsel or the prosecution. 865 P.2d at 823. The court mentioned
the upcoming holidays and the potential for scheduling conflicts if
the jury did not decide the case quickly. Id. at 824. This kind of
10 pressure presented a substantial risk to the defendant’s right to a
fair trial because at least two jurors who were traveling over the
holidays had “substantial incentives to arrive at a verdict by the end
of the first afternoon of deliberations.” Id. at 825. Counsel’s
presence was essential to preserve any objections or to move for a
mistrial if the proposed schedule would infringe upon the right to a
fair trial. Id. at 825-26.
¶ 23 No similar transgression occurred here that required defense
counsel’s presence. The court didn’t place time constraints on jury
deliberations or indicate that a quick decision was expected or
encouraged. Rather, the court reiterated what it had told the jury
throughout the trial — that it was not to engage in or consider any
outside communication and that such contact was improper.
¶ 24 Defense counsel’s absence didn’t impair Kane’s right to a fair
trial because the challenged exchange didn’t occur at a critical
stage of the proceedings. See id. at 825 (“Not every communication
between the judge and jury constitutes a critical stage of the trial.”).
We, therefore, do not think the court erred by reminding the jury,
even outside of defense counsel’s presence, that being approached
by a witness was improper.
11 ¶ 25 Finally, the parties dispute whether a violation of the right to
counsel amounts to structural error requiring automatic reversal,
see People v. Lopez, 2024 CO 50, ¶ 45, or whether constitutional
harmless error applies, see Key, 865 P.2d at 826. Having
concluded that Kane’s right to counsel was not violated and that
the court did not err, we need not decide the applicable standard of
reversal.
4. Right to Due Process
¶ 26 Kane’s due process argument simply restates his claims that
his right to be present and his right to counsel were violated. Kane
asserts that the court’s comment cast his wife, the “sole eyewitness
to the charged incident,” in a negative light and prejudiced the
defense. But Kane doesn’t develop an independent due process
argument; he simply argues that had he or counsel been present,
an objection could have been made. Because we have already
concluded that no reversible error occurred when Kane and his
counsel were not present during the court’s discussion with the
jurors, we similarly discern no due process violation.
12 B. There was Sufficient Evidence for the Jury to Conclude that Kane Was in a Position of Trust and Subjected E.M. to Sexual Contact
¶ 27 Kane argues that the prosecution failed to prove beyond a
reasonable doubt that he was in a position of trust or that the
buttocks swat had a sexual purpose. We disagree.
1. Standard of Review and Applicable Law
¶ 28 We review questions of statutory interpretation de novo.
People v. Roggow, 2013 CO 70, ¶ 12. In construing the statutory
definition of “position of trust,” we seek to effectuate the General
Assembly’s intent. Id. We begin with the plain language of the
statute, reading the words and phrases in context and construing
them according to their common usage. Manjarrez v. People, 2020
CO 53, ¶ 19. If the statutory language is clear and unambiguous,
we apply it as written without resorting to other means of
discerning legislative intent. Roggow, ¶ 12.
¶ 29 We review the sufficiency of the evidence de novo. Id. at ¶ 13.
“In so doing, we must determine whether the relevant evidence,
when viewed as a whole in the light most favorable to the
prosecution, is sufficient to support a conclusion by a reasonable
13 mind that the defendant is guilty of the charges beyond a
reasonable doubt.” Id.
¶ 30 A person commits sexual assault on a child by one in a
position of trust when he “knowingly subjects another not his or her
spouse to any sexual contact. . . if the victim is a child less than
eighteen years of age and the actor committing the offense is one in
a position of trust with respect to the victim.” § 18-3-405.3(1).
“Sexual contact” means
the knowing touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowing touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if that sexual contact is for the purposes of sexual arousal, gratification, or abuse.
§ 18-3-401(4)(a), C.R.S. 2025. “Intimate parts” includes “the
buttocks” of any person. § 18-3-401(2).
¶ 31 The definition of “position of trust” adopted by the legislature
“is a broad one.” Pellman v. People, 252 P.3d 1122, 1125 (Colo.
2011). Section 18-3-401(3.5) provides:
One in a “position of trust” includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a
14 guardian or someone otherwise responsible for the general supervision of a child’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.
The Colorado Supreme Court observed in Roggow that this
definition expressly includes two categories of persons. The first
category encompasses “parents and persons who regularly watch
over and care for a child, such as grandparents, other relatives,
close friends, or a parent’s [partner].” Roggow, ¶ 18. The second
category encompasses persons who “generally have access to the
child only for limited periods of time.” Id. at ¶ 19. However, the
legislature’s broad definition is not limited to these categories, and
they instead “reflect the General Assembly’s overarching intent to
target those offenders who are entrusted with special access to a
child victim and who exploit that access to commit an offense
against the child.” Id. at ¶ 15.
¶ 32 For purposes of the position of trust statute, “a defendant
need not be expressly charged with a particular duty or
responsibility over the child at the time of the unlawful act in order
15 to occupy a position of trust.” Id. Instead, a duty or responsibility
for the welfare or supervision of a child can be implied from the
circumstances. See People v. Madril, 746 P.2d 1329, 1336 (Colo.
1987) (concluding there was sufficient evidence that the defendant
“voluntarily assumed ‘a position of trust’ with respect to [the victim]
when he agreed to permit her to spend the evening with his children
at his home”). Accordingly, “a defendant’s special access to the
victim by virtue of an existing relationship or other conduct or
circumstances is evidence of an implied duty or responsibility for
the welfare or supervision of the victim during those periods of
special access.” Manjarrez, ¶ 27.
2. Analysis
a. Position of Trust
¶ 33 We conclude that there is sufficient evidence to support the
jury’s finding that Kane was in a position of trust with respect to
E.M. when the alleged incident occurred. While Kane was not
E.M.’s teacher, chaperone, or babysitter, E.M.’s relationship with
Kane and the circumstances surrounding the days in question
indicate that Kane had special access to E.M.
16 ¶ 34 E.M. spent four to seven nights per week at Kane’s home and
was integrated into the family environment. She often referred to
him as “dad” and expressed a desire for him and his wife to adopt
her. E.M. also could not drive and depended on Kane to bring her
to his house for visits. By facilitating these frequent overnight
stays, Kane assumed responsibility for E.M.’s supervision, welfare,
and transportation. There was thus sufficient evidence for the jury
to find that Kane held a “position of trust” with respect to E.M.
Kane’s arguments to the contrary simply ask us to reweigh the
evidence in his favor, which we cannot do. See People v. Perez,
2016 CO 12, ¶ 25 (in conducting a sufficiency analysis, we do not
serve as a thirteenth juror or invade the province of the jury).
b. Sexual Contact
¶ 35 Kane claims that the prosecution failed to prove beyond a
reasonable doubt that he swatted E.M.’s buttocks for the purposes
of sexual arousal, gratification, or abuse. He argues that, at the
time of the offense, E.M. did not perceive the swat as sexual in
nature but rather as a “spank” — like she was in trouble for
something. This argument is misplaced because it focuses on
E.M.’s perception of the swat. The statute, however, does not
17 require the victim to perceive the contact as sexual in nature.
Rather, it focuses on the defendant’s purpose for the touch and
whether the defendant did it for sexual arousal, gratification, or
abuse. The statutory focus, therefore, lies on the actor’s intent and
not on the victim’s interpretation.
¶ 36 There is no direct evidence — such as Kane’s admission — of
Kane’s intent that he swatted E.M.’s buttocks for purposes of sexual
arousal or gratification. But a defendant’s intent can, and often
must, be proved by circumstantial evidence. People v. Taylor, 655
P.2d 382, 384 (Colo. 1982) (“[W]e have repeatedly recognized that
direct proof of the defendant’s state of mind is rarely available and,
consequently, resort must necessarily be had to circumstantial
evidence on this element.”); People v. Hines, 2021 COA 45, ¶ 37 (“A
jury may properly infer intent from the defendant’s conduct and the
circumstances of the offense.”). And whether a defendant acted
with the requisite mental state to sustain a conviction for unlawful
sexual contact can also be inferred from the nature of and the
circumstances surrounding the sexual touching. See People v.
McCoy, 2015 COA 76M, ¶ 47 (concluding that when the adult
defendant, who claimed to be a physician, lured two victims to his
18 home by telling them he worked in television, questioned them
about their sexual histories and sexual fantasies, and physically
examined them — including touching their genitals — the jury
could reasonably conclude that he examined the victims for the
purpose of sexual gratification), aff’d on other grounds, 2019 CO 44.
¶ 37 Kane struck E.M. on her buttocks with his open hand. E.M.
was wearing tight spandex shorts at the time, and E.M. testified
that Kane said she was “asking for it” because she bent over to play
with the dog. Kane’s conduct before and after the swat provides
context and circumstantial evidence from which the jury could
reasonably infer that he acted with a sexual purpose. Kane sent
E.M. multiple text messages before the incident, asking if she
thought they might “get in trouble” for texting, warning her that he
was “constantly dirty minded,” and calling E.M. a “sexy bitch.”
Kane also texted E.M. during the period in question, asking her if
she thought that he was creepy, why she didn’t want to be alone
with him, and if she would “hang out” with him. Kane also texted
E.M. that he hoped to see her one day in his “favorite outfit” and to
give her “a tongue lashing to remember.” Viewed in the light most
favorable to the prosecution, this evidence would allow a reasonable
19 jury to find that Kane’s purpose in swatting E.M.’s buttocks was
sexual and that he subjected her to sexual contact. Kane’s focus on
contrary record evidence is unavailing. See Perez, ¶ 25.
C. The Text Messages Between Kane and E.M. Were Admissible
¶ 38 Kane argues that the text messages he exchanged with E.M.
were extrinsic CRE 404(b) evidence and that the court erred by
admitting the messages without a CRE 404(b) analysis or a limiting
instruction. We disagree.
1. Additional Facts
¶ 39 In a pretrial filing, defense counsel stated that “[Kane]
request[ed] reasonable notice from the prosecution in advance of
trial of any intent to introduce any evidence subject to CRE 404(b).”
The trial court issued a case management order stating that “the
defense must provide to the [P]eople any CRE 404(a)(2) evidence,”
but it didn’t require the prosecution to file any notice under CRE
404(b). The prosecution didn’t file a notice.
¶ 40 At trial, the prosecution admitted multiple texts that Kane
sent E.M.:
June 10, 2021: Are you or I going to get in any trouble for texting each other? . . . I know a lot of people don’t like other parents talking to
20 their kids. If I ever do or say anything that makes you uncomfortable, please tell me. . . . And just as a warning, I’m constantly dirty minded! LOL
July 27, 2021: Have a good day, you sexy bitch! love you!
October 28, 2021: Good morning! I hope you can make it [because] this is the weekend I was going to smoke with you guys! I don’t know how you feel about this, but I’m going to say it and hope you don’t hate me for it. I hope someday I can see you in my favorite outfit and give you a tongue lashing to remember! There, it’s off my chest! I won’t mention anything about it again unless you want me to. Have a great day!
¶ 41 The prosecution also admitted text messages that E.M. sent to
Kane on October 28, 2021:
[N]o that was so f****** unnecessary, like that was beyond disgusting, and you should f****** know better. Like at this point you have just become a predator in my f****** life. Like why the f*** would you say that? [I don’t know] what sick fantasies you and Kat have about me but yall need to find some f****** sanity and stop trying to groom onto a 16 [year old] you are so f****** lucky I haven’t told my dad about this yet. I told Jr and youre lucky you didn’t get a f****** correction to your jaw. [Y]our little “I’m sorry” is f****** b******* man! Or when you smacked my a** and said I was “asking for it” like you’re f****** disgusting bro.
....
21 [Y]ou’re a predator and you need to reevaluate how you are because clearly you need some f****** help.
The defense did not object to any of these text messages at trial.
2. Preservation
¶ 42 Kane argues that this issue was preserved by the pretrial filing
requesting notice of any CRE 404(b) evidence that was
memorialized in a court order. True, a pretrial motion can preserve
an objection in the absence of a contemporaneous objection, Uptain
v. Huntington Lab, Inc., 723 P.2d 1322, 1330 (Colo. 1986), but the
prosecution didn’t act contrary to a pretrial order because it wasn’t
required to file pretrial notice of evidence it intended to submit
under CRE 404(b), Kane didn’t file a pretrial objection to the
evidence, and Kane didn’t contemporaneously object when the
evidence was introduced at trial. Therefore, the issue is
unpreserved.
3. Standard of Review and Applicable Law
¶ 43 A trial court’s decision to admit evidence under CRE 404(b) is
reviewed for abuse of discretion. People v. Cooper, 104 P.3d 307,
309 (Colo. App. 2004). However, when the defendant does not
object to the admission of evidence at trial, we review for plain
22 error. People v. Vecellio, 2012 COA 40, ¶ 54. “Plain error is ‘an error
that is obvious, substantial, and grave, seriously affecting the
substantial rights of the accused.’” Id. (citation omitted). “Plain
error occurs only when, after review of the entire record, the
appellate court concludes that the error undermined the
fundamental fairness of the trial.” People v. Miller, 113 P.3d 743,
745 (Colo. 2005). To be plain, the error must be so obvious that the
trial court should have been able to avoid it without an objection.
Cardman v. People, 2019 CO 73, ¶ 34.
¶ 44 CRE 404(b) bars the admission of evidence of “any other
crime, wrong, or act” to prove “a person’s character in order to show
that on a particular occasion the person acted in conformity with
the character.” CRE 404(b)(1). However, other act evidence “may
be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” CRE 404(b)(2). This list is not
exclusive; “courts can admit uncharged misconduct evidence for
almost any non-propensity purpose,” subject to the limitations
discussed below. Rojas v. People, 2022 CO 8, ¶ 28.
23 ¶ 45 When “evaluating whether uncharged misconduct evidence
triggers [CRE] 404(b), a trial court must first determine if the
evidence is intrinsic or extrinsic to the charged offense.” Id. at ¶ 52.
Intrinsic acts are limited to “(1) those that directly prove the
charged offense and (2) those that occur contemporaneously with
the charged offense and facilitate the commission of it.” Id. at ¶ 44.
All other acts are extrinsic. If proposed extrinsic act evidence
suggests that the defendant has a bad character and that he acted
in conformity with that bad character, it is admissible “only as
provided by [CRE] 404(b) and after a [People v. Spoto, 795 P.2d
1314 (Colo. 1990),] analysis.” Id. at ¶ 52.
¶ 46 Under Spoto, courts must consider whether (1) the evidence
relates to a material fact; (2) the evidence is logically relevant;
(3) the evidence is independent of the prohibited inference that the
defendant has a bad character and acted in conformity with that
character in this instance; and (4) the probative value of the
evidence is substantially outweighed by the danger of unfair
prejudice. 795 P.2d at 1318-19.
¶ 47 The trial court did not conduct a Spoto analysis when
determining that the text messages were admissible. However, any
24 error in admitting the evidence does not require reversal if the
evidence meets the foundational CRE 404(b) and Spoto
requirements. See People v. Cousins, 181 P.3d 365, 370 (Colo. App.
2007) (“A conviction will not be overturned on appeal when the trial
court employed an erroneous standard in analyzing the
admissibility. . . [if the] evidence [is] admissible, and the proper
foundation [was] laid for its admission.”).
4. Analysis
¶ 48 The buttocks swat occurred on July 8, 2021. The challenged
text messages — sent on June 10, July 27, and October 28, 2021 —
did not occur contemporaneously with the incident. They do not
directly prove that the swat was for sexual gratification, as they
neither mention the swat nor state that Kane acted with such a
purpose. However, they provide relevant context and support an
inference that Kane’s underlying intent was sexual in nature. We
therefore consider whether the challenged text messages were
admissible as extrinsic evidence under Spoto.
¶ 49 The first and second prongs of Spoto are satisfied. The text
messages are material and logically relevant because they
demonstrate that Kane may have been sexually interested in E.M.,
25 making it more likely Kane touched E.M. for purposes of sexual
gratification. Kane told E.M. he was “constantly dirty minded,”
referred to her as a “sexy bitch,” and told her he would like to give
her a “tongue lashing.”
¶ 50 The third Spoto prong is also satisfied because the text
messages’ logical relevance does not depend on the inference that
Kane was acting according to his bad character when he touched
E.M. Nothing in our review of the record indicates that the
prosecution sought to introduce the text messages to prove that
Kane was acting in conformity with his bad character. Instead, the
prosecution used the texts to establish Kane’s relationship with
E.M.; his sexual interest in her; and the likelihood that because he
was interested in her sexually, Kane struck E.M. for sexual
gratification.
¶ 51 The final Spoto prong is also satisfied because the probative
value of the text messages — in proving Kane’s intent —
substantially outweighed the danger of unfair prejudice. While the
text messages are prejudicial in that they tend to demonstrate
Kane’s sexual interest in E.M., such prejudice is not unfair in a
26 child sexual assault case because Kane’s sexual intent or motive
toward E.M. constitutes a material element of the charged offense.
¶ 52 Even if the court erred by not requiring pretrial notice or
providing a limiting instruction, any error was not substantial or
obvious. The purpose of giving pretrial notice is to avoid surprise,
but Kane doesn’t articulate that he was surprised by the
evidence — nor could he, having sent the texts — or how his
defense strategy would have been different had the prosecution
given pretrial notice. Likewise, although the court didn’t provide a
limiting instruction, it was clear that the purpose of the texts was to
show Kane’s intent. For example, the police reports filed with the
evidentiary motions clarified that the purpose of the texts was to
show Kane’s intent of sexual gratification. Additionally, during
closing arguments, the prosecutor clarified that the texts were being
used as evidence of Kane’s intent: The “question isn’t whether we
have proven that he is inappropriate beyond a reasonable doubt,
but these help inform you on what his intent is. This is what is
going on in his mind.”
¶ 53 Kane also challenges the admissibility of text messages that
E.M. sent in October 2021 calling him a “predator” and
27 “disgusting,” citing CRE 404(b). E.M.’s pejoratives are not evidence
of “any other crime, wrong, or act” used to prove Kane’s character,
so CRE 404(b) does not exclude this evidence. Kane fails to claim
any basis other than CRE 404(b) to exclude this evidence and did
not ask to redact the text messages. Accordingly, we discern no
error in admitting E.M.’s text messages.
D. The Lead Detective Did Not Improperly Testify
¶ 54 Kane argues that the lead detective improperly testified on
direct examination that the charges were supported by probable
cause and that the defense witnesses were biased. We perceive no
reversible error.
¶ 55 During direct examination, the detective assigned to E.M.’s
case testified that he investigated the matter by contacting the
victim and her parents, setting up a forensic interview, downloading
the contents of the victim’s phone, and speaking to Kane. The
detective also testified that he did not interview Kane’s wife or
daughter. When asked why they weren’t interviewed, the detective
said,
28 I observed [E.M.’s] [forensic] interview and then spoke with [Kane]. And at that point I gathered enough information and evidence with the cell phone messages and his statements to establish probable cause. And those other involved parties were present and hadn’t witnessed it or they were going to be biased witness[es] is what I call them and so I just went forward with charging.
There was no contemporaneous objection to the detective’s
testimony.
2. Standard of Review and Applicable Law
¶ 56 A trial court has broad latitude in determining the
admissibility of evidence, and we review its determination for an
abuse of discretion. Davis v. People, 2013 CO 57, ¶ 13. But
because Kane did not preserve this issue by objecting
contemporaneously at trial, we review it for plain error. See Hagos
v. People, 2012 CO 63, ¶ 14.
¶ 57 In Davis, the supreme court held that a detective could “testify
about [their] assessments of interviewee credibility when that
testimony [wa]s offered to provide context for the detective’s
interrogation tactics and investigative decisions.” Davis, ¶ 19. But
the “admissibility of any testimony hinge[d] on the particular
circumstances under which it [wa]s elicited and offered.” Id. The
29 testimony was admitted primarily to explain the detectives’ use of
different interrogation techniques during interviews. See id. at
¶¶ 5-9. While the court emphasized the admissibility of such
testimony was highly fact specific, it outlined several facts
underlying its conclusion that the admitted testimony was proper,
including:
• the prosecutor did not use inflammatory or prejudicial words such as “lie”;
• the prosecutor used open-ended questions;
• the detectives did not testify as to the credibility of the witnesses’ in-court testimony, but rather to their assessment of the interviewees’ credibility during the investigatory interviews;
• the detectives’ testimony was offered to explain their investigative decisions;
• the witnesses on whose credibility the detectives opined testified at trial and were subject to cross-examination, which provided the jury ample opportunity to judge their credibility for itself; and
• although the trial court did not provide a limiting instruction about each challenged portion of testimony, a limiting instruction was not required by statute or requested by either party.
People v. Liebler, 2022 COA 21, ¶ 44.
30 3. Analysis
¶ 58 Here, the detective answered the prosecutor’s open-ended
questions about his training, his general duties as a detective with
the special victims’ unit, and his process for investigating cases and
interviewing witnesses. The prosecutor had asked the detective
whom he had interviewed and why. The prosecutor didn’t use
prejudicial or inflammatory words, such as “lie,” and didn’t press
the detective after he made the challenged statement. The
detective’s testimony didn’t touch on the witnesses’ in-court
testimony. Rather, his response explained his assessment of
credibility and how that helped him decide whether an interview
with Kane’s wife or daughter was necessary, given that he had
gathered sufficient information for his investigation. Also, Kane’s
wife and daughter testified at trial and were subject to cross-
examination, which provided the jury with “ample opportunity to
judge the credibility of these witnesses for itself, independent of the
detective’s statements.” People v. Lopez, 129 P.3d 1061, 1067
(Colo. App. 2005).
¶ 59 While the trial court didn’t provide a limiting instruction on
the detective’s testimony, it had no duty to provide one sua sponte
31 unless required to do so by statute or requested to do so by a party.
See Davis, ¶ 21. Neither situation applied here. We discern no
error — let alone plain error — with the court’s decision to admit
the detective’s testimony because his testimony did not undermine
the trial’s fairness and did not cast serious doubt on Kane’s
conviction.
¶ 60 Likewise, when the detective testified that he had “gathered
enough information and evidence with the cellphone messages and
[Kane’s] statements to establish probable cause,” his statements
were in response to the prosecutor asking whom he had interviewed
and why. He was explaining why it was unnecessary to interview
Kane’s wife and daughter. The detective did not explain the
probable cause standard or imply that the charges were based on
his assessment. Further, the statement was brief and wasn’t relied
on by the prosecution. See People v. Mendenhall, 2015 COA 107M,
¶ 69 (concluding that the trial court did not err by admitting
investigator’s testimony on how often charges were brought based
on his referrals because his statements were “brief and constituted
a small part of his testimony”). Even if the detective’s statement
was improper, its admission didn’t amount to plain error because
32 any error was not obvious or substantial. See id. at ¶ 71 (noting
that even under the harmless error standard, “the trial court’s error
in admitting parts of the investigator’s testimony did not
substantially influence the verdict or affect the fairness of the trial
proceedings and does not require reversal of defendant’s . . .
convictions”).
E. Cumulative Error
¶ 61 Kane argues that the cumulative effect of the errors
throughout his case deprived him of a fair trial. We disagree.
¶ 62 For us to reverse based on cumulative error, we must identify
multiple errors that collectively prejudiced Kane’s substantial
rights, even if any single error doesn’t. See Howard-Walker v.
People, 2019 CO 69, ¶ 25. While we acknowledge that some errors
may have occurred, cumulatively, the errors did not “affect[] the
fairness of the trial proceedings [or] the integrity of the fact-finding
process” and don’t require reversal. Id. at ¶ 24 (citation omitted).
III. Disposition
¶ 63 The judgment is affirmed.
JUDGE FOX and JUDGE BROWN concur.