22CA1800 Peo v Knudtson 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1800 Weld County District Court No. 20CR1252 Honorable Marcelo A. Kopcow, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jason Phillip Knudtson,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE TOW Yun and Graham*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Jacey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State Public Defender, Denver, 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. 2024. ¶1 Defendant, Jason Phillip Knudtson, appeals the judgment of
conviction entered on a jury verdict finding him guilty of three
counts of sexual assault on a child by one in a position of trust
(SAOC-POT) and one count of aggravated incest. We affirm the
judgment in part and vacate it in part, and we remand the case
with directions.
I. Background
¶2 At trial, the jury heard evidence that would support the
following findings.
¶3 In 2015, Knudtson’s stepson, T.K., filed a police report alleging
that Knudtson sexually abused him regularly from the age of seven
to nineteen. Detective Doug Slocum led the investigation into T.K.’s
allegations. After concluding his initial investigation, Detective
Slocum submitted his report to his supervisor. Detective Slocum’s
supervisor did not forward the report to the District Attorney’s
Office (DA’s office), however, and T.K.’s claim remained dormant for
approximately five years. In 2020, T.K. followed up with the DA’s
office to find out why his case had not been pursued. The DA’s
office discovered that it never received T.K.’s case file and contacted
the police department to request the relevant report.
1 ¶4 After reviewing Detective Slocum’s report, the prosecution
charged Knudtson with five counts of SAOC-POT (counts one
through five), one count of aggravated incest, and one count of
sexual exploitation of a child. Counts one and two encompassed
any instances of sexual abuse that occurred within specific date
ranges.1 Count one also included a sentence enhancer alleging that
T.K. was “a person with less than fifteen years of age during the
time period charged for this offense.”
¶5 Counts three, four, and five introduced specific acts to support
each charged count. Count three addressed an incident during
which Knudtson allegedly assaulted T.K. in his bedroom under the
pretense of rubbing T.K.’s injured back when T.K. was ten years old
(the backrub incident). Count four addressed an incident during
which Knudtson allegedly assaulted T.K. in their family home after
visiting the pool when T.K. was fifteen years old (the post-swimming
incident). And count five addressed an incident during which
1 The date ranges for counts one and two overlapped as charged.
Count one encompassed any sexual abuse that T.K. was subject to from the age of seven to fourteen. Count two encompassed any sexual abuse that T.K. was subject to from the age of seven to seventeen.
2 Knudtson allegedly assaulted T.K. in the shower at their family
home when T.K. was between fourteen and sixteen years old (the
shower incident).
¶6 Each SAOC-POT charge included a sentence enhancer
interrogatory instructing the jury to determine whether Knudtson
committed the assault as part of a pattern of sexual abuse. The
jury was instructed that a pattern of sexual abuse existed if the
prosecution proved beyond a reasonable doubt “the commission of
two or more incidents of sexual contact involving a child when such
offenses are committed by an actor upon the same victim.”
¶7 Following a jury trial, Knudtson was found guilty of SAOC-POT
on counts one, two, and three but acquitted on counts four and
five. The jury found that T.K. was under the age of fifteen during
the date range charged in count one. But the jury did not find that
Knudtson committed the assault as part of a pattern of sexual
abuse on any of the counts. The jury also found Knudtson guilty of
aggravated incest but acquitted on the charge for sexual
exploitation of a child. The court sentenced Knudtson to four
indeterminate terms of eight years to life in the custody of the
Department of Corrections, to be served concurrently and to be
3 followed by an additional mandatory parole period of twenty years
to life.
II. Proposed Witness Testimony
¶8 Knudtson argues the trial court erred when it precluded
defense counsel from calling a witness to present testimony
intended to rebut and impeach Detective Slocum. We disagree.
A. Additional Background
¶9 On the first day of the trial, the prosecution requested that the
court preclude any inquiry into the “mental processes and decision
making processes of the . . . [p]olice [d]epartment, and/or the DA’s
office.” The prosecutor clarified his position by stating that “it [is]
not admissible whether the DA’s office thought a case was fileable
or not, or whether a particular detective thought the case was
fileable or not.” Defense counsel countered that “it [was] a
reasonable inference that when the case filing went up the line from
Detective Slocum to his superiors, that they made a decision that it
was not a sufficiently proven case to be turned over to the DA’s
office,” and that “an explanation is due . . . for the five-year gap.”
The court concluded that the opinions of law enforcement and the
DA’s office concerning “whether they thought this was a strong case
4 or not, or whether charges should be filed or not, is not relevant to
this jury’s determination as to whether the prosecutor can prove all
of the evidence beyond a reasonable doubt.” The court permitted
counsel to inquire about the lack of investigation from 2015 to 2020
as long as it did not touch on the opinions of law enforcement and
the DA’s office.
¶ 10 During opening statements, the prosecution addressed the
five-year gap, explaining that when T.K. initially reported the
assault in 2015, he “was told . . . [Detective Slocum would] send
[the report] up the line, and . . . [his supervisors would] look at it for
possible filing of charges with the DA’s [o]ffice.” On direct, T.K.
testified that after reporting the alleged assault to the police
department, he “was under the impression that they were going to
be sending this information over to the District Attorney’s office.”
¶ 11 On direct examination, Detective Slocum testified that upon
completing his investigation, he submitted the report to his
supervisor and indicated in it that “he wish[ed for] this report to be
now forwarded to the District Attorney’s office for review and a filing
decision.” Detective Slocum explained that, normally, “once [the
report] reaches a supervisor, they approve the report [a]nd they
5 would forward the entire investigation to the District Attorney’s
Office.” Detective Slocum testified that he expected to hear back
from the DA’s office about whether charges would be filed, but
never did, and that he did not follow up on T.K.’s case until the
DA’s office reached out in 2020. A review of the police department’s
record management system showed there were no other logs on the
case apart from Detective Slocum’s submission to his supervisor
five years earlier.
¶ 12 On cross-examination, defense counsel asked Detective
Slocum whether he told T.K.’s former counsel, Brian Bagley, “that
[he was] not going to file the case.” Detective Slocum denied this
and asserted that he told Bagley he would refer it to the DA’s office.
Defense counsel requested that they be allowed to call Bagley as an
unendorsed witness to testify that Detective Slocum told him that
he would not be filing the case. The prosecution objected on the
grounds that the proposed testimony was inadmissible because it
went to the issue of law enforcement’s thought processes, which the
court had already deemed irrelevant. The prosecution additionally
argued that defense counsel raised this issue and that Bagley
6 should have been endorsed as a witness if that was counsel’s
intended strategy.
¶ 13 The court denied defense counsel’s request to call Bagley. The
court explained that Bagley’s lack of endorsement as a witness
created a procedural issue. The court also noted that Bagley’s
proposed testimony was irrelevant under CRE 401 because “the
officer’s lay opinion as to why he believes a case should or should
not have been filed asserts the role of the jury . . . [, and] it is
irrelevant whether the officer believed there was enough evidence.”
Finally, the court concluded that the testimony was also excludable
under CRE 403 because “the probative value of that information
is . . . substantially outweighed by the unfair prejudice.”2
B. CRE 401 and CRE 403
¶ 14 Knudtson contends the trial court abused its discretion by
concluding that Bagley’s proffered testimony was irrelevant, and
2 In its oral findings, the trial court stated that it “find[s] that the
probative value of that information is not substantially outweighed by the unfair prejudice.” As Knudtson acknowledges in his opening brief, context makes clear that the court unintentionally included the word “not,” given the court’s denial of defense counsel’s request and its citation to CRE 403, which allows the court to exclude relevant evidence “if its probative value is substantially outweighed by . . . unfair prejudice.”
7 therefore inadmissible, despite the prosecution’s “opening of the
door” to the matter. Additionally, Knudtson argues that the trial
court abused its discretion by finding that Bagley’s testimony would
be more prejudicial than probative.
1. Standard of Review and Applicable Law
¶ 15 “We review a trial court’s determination regarding the
admissibility of evidence for an abuse of discretion.” People v. Lane,
2014 COA 48, ¶ 21. “A trial court abuses its discretion when its
ruling is manifestly arbitrary, unreasonable, or unfair.” Id.
¶ 16 Only relevant evidence is admissible. CRE 402. Relevant
evidence is “evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” CRE 401. And relevant evidence may still be excluded
“if its probative value is substantially outweighed by the danger of
unfair prejudice.” CRE 403. Trial courts are given considerable
discretion in determining whether the probative value of evidence
outweighs its prejudicial effect. People v. Rath, 44 P.3d 1033, 1043
(Colo. 2002).
8 ¶ 17 “A party may open the door to otherwise inadmissible evidence
by presenting incomplete evidence on a subject.” People v.
Heredia-Cobos, 2017 COA 130, ¶ 20. “The concept of ‘opening the
door’ represents an effort by courts to prevent one party in a
criminal trial from gaining and maintaining an unfair advantage by
the selective presentation of facts that, without being elaborated or
placed in context, create an incorrect or misleading impression.” Id.
(quoting People v. Murphy, 919 P.2d 191, 195 (Colo. 1996)). But the
concept is not unlimited. People v. Cohen, 2019 COA 38, ¶ 23.
Once a party opens the door, the opponent may inquire into the
“otherwise inadmissible rebuttal evidence ‘. . . only to the extent
necessary to remove any unfair prejudice which might otherwise
have ensued from the original evidence.’” Id. (quoting United States
v. Martinez, 988 F.2d 685, 702 (7th Cir. 1993)).
2. Analysis
¶ 18 Knudtson does not appear to argue that evidence of Detective
Slocum’s intent to file charges (or lack thereof) was relevant in and
of itself. Nor can he. It is well established that a police officer’s
belief regarding whether there is probable cause to arrest or charge
a defendant is not relevant to whether the prosecution has carried
9 its burden of proof.3 See Howard-Walker v. People, 2019 CO 69,
¶¶ 33, 42.
¶ 19 Instead, Knudtson contends the trial court abused its
discretion because the prosecution opened the door to the issues
implicated in Bagley’s proposed testimony. Specifically, Knudtson
contends the prosecution opened the door to Bagley’s testimony
when (1) the prosecutor “suggest[ed] in [his] opening statement that
Detective Slocum had intended to seek charges against Knudtson in
2015”; (2) “T.K.’s direct-examination testimony suggest[ed] that
police told him the case would be forwarded to the District
Attorney’s office”; and (3) Detective Slocum testified that “he tried to
have the case forwarded to the District Attorney’s office for a filing
decision.” Knudtson argues that these statements made Bagley’s
testimony relevant because it could be used to rebut and impeach
Detective Slocum’s testimony and generally impeach his credibility,
3 This rule is more often invoked by defendants objecting to
“screening” testimony. See People v. Mendenhall, 2015 COA 107M, ¶ 62 (“When probable cause to charge a defendant is not at issue . . . the prosecution’s presentation of evidence about charging decisions may imply that, because of a pretrial screening process, only guilty parties are charged with crimes and thus the defendant must be guilty.”). Nevertheless, there is no reason it would not apply equally to a belief in the lack of a case’s strength.
10 and it would cast doubt on the suggestion that police told T.K. that
his case would be forwarded to the DA’s office.
¶ 20 We disagree that the identified statements opened the door to
Bagley’s testimony. The prosecution’s opening statement did not
suggest that Detective Slocum “intended to seek charges.” Instead,
the prosecution explained that the “ball got dropped” by the police
department after T.K. left the station with the understanding that
the report would be “sent up the line for the possible filing of
charges.” (Emphasis added.) This information fell within what the
court deemed relevant — namely, an explanation for the five-year
gap between the initial report and subsequent charges.
Furthermore, Detective Slocum later clarified that he had no control
over whether charges were filed, as that decision ultimately rests
with the DA’s office.
¶ 21 T.K.’s testimony that he was informed that the report would be
sent up the chain similarly did not touch on the officer’s belief, or
disbelief, in T.K.’s allegations. It simply reflected T.K.’s
understanding that the next step in the process would involve the
DA’s office considering pressing charges against Knudtson.
11 ¶ 22 And Detective Slocum’s testimony that he tried to have the
case forwarded did not provide insight into his own beliefs regarding
the merits of the case. In fact, in the same line of questioning,
Detective Slocum acknowledged that “sending it up the line” and
“indicating that it should be forwarded to the District Attorney’s
office for review and a filing decision” was a standard practice at the
police department.
¶ 23 In sum, all the statements that Knudtson contends opened the
door simply addressed the five-year gap and general practices of the
police department. None of them touched on the mental processes
of the officers.
¶ 24 Conversely, defense counsel acknowledged that Bagley’s
proffered testimony would have “announced that [Detective Slocum
stated] that he was not filing the case.” This is precisely the kind of
irrelevant screening testimony that trial courts have repeatedly
been instructed to preclude. See People v. Mendenhall, 2015 COA
107M, ¶ 62. Bagley’s proposed testimony was offered to prove that
Detective Slocum did not believe T.K.’s case should be filed, which
the court correctly concluded was irrelevant to the “jury’s
12 determination as to whether the prosecutor can prove all of the
evidence beyond a reasonable doubt.”
¶ 25 And while Knudtson argues that Detective Slocum’s claim that
he tried to have the case forwarded “implied that he believed T.K.’s
allegations were sufficiently credible for charges,” as previously
noted, Detective Slocum explained that the DA’s office, not the
police department, had the authority to pursue charges.
¶ 26 Finally, we acknowledge that generally, where a witness has
made a previous statement inconsistent with his testimony at trial,
the inconsistency may be shown by competent evidence and used to
impeach the witness. § 16-10-201, C.R.S. 2024. But even if
Detective Slocum had told Bagley he did not intend to file the case,
any impeachment based on this statement would go solely to
Detective Slocum’s credibility as to his belief in the strength of the
case, which — as we have noted — has absolutely no relevance.
Thus, we also reject Knudtson’s argument that the trial court
abused its discretion in finding Bagley’s testimony was more
prejudicial than probative.
¶ 27 In sum, the trial court’s decision to reject Bagley’s testimony
was not manifestly arbitrary, unreasonable, or unfair. Id.
13 ¶ 28 Given our conclusion that the trial court did not abuse its
discretion in denying Bagley’s testimony under CRE 401 and CRE
403, we need not address whether calling Bagley as an unendorsed
witness required endorsement, or in the alternative, whether the
court was required to consider the Pronovost factors in precluding
defense counsel from calling him. See People v. Pronovost, 773 P.2d
555, 558 (Colo. 1989).
III. Merger
¶ 29 Knudtson next raises an unpreserved argument that double
jeopardy requires the merger of his three convictions for SAOC-POT
into one. We agree that two of the SAOC-POT convictions must be
vacated.
A. Standard of Review and Applicable Law
¶ 30 We review de novo whether merger of multiple criminal
offenses is required. Whiteaker v. People, 2024 CO 25, ¶ 9. The
principle of double jeopardy in the United States and Colorado
Constitutions protects individuals from multiple punishments for
the same offense absent express statutory authorization. Woellhaf
v. People, 105 P.3d 209, 214 (Colo. 2005); U.S. Const. amends. V,
XIV; Colo. Const. art. II, § 18. Merger is the remedy for
14 multiplicitous punishments entered in violation of double jeopardy
principles. Whiteaker, ¶ 24.
¶ 31 Where prosecution involves distinct offenses premised upon
violation of the same statute, we must ask “(1) whether the unit of
prosecution prescribed by the legislature permits the charging of
multiple offenses; and (2) whether the evidence in support of each
offense justifies the charging of distinct offenses.” Quintano v.
People, 105 P.3d 585, 590 (Colo. 2005).
¶ 32 In addressing the first prong, “[t]he General Assembly has
defined . . . the unit of prosecution [for SAOC as] ‘any sexual
contact.’” Woellhaf, 105 P.3d at 216. Sexual contact means “[t]he
knowing touching of the victim’s intimate parts by the actor, or of
the actor’s intimate parts by the victim.” § 18-3-401(4)(a), C.R.S.
2024. Thus, in punishing SAOC, “the legislature only authorized a
single punishment for all discrete acts of touching that occur within
a single incident.” Quintano, 105 P.3d at 590.
¶ 33 For the second prong, “we look to all the evidence introduced
at trial to determine whether the evidence on which the jury relied
for conviction was sufficient to support distinct and separate
offenses.” Id. at 592.
15 B. Analysis
¶ 34 Knudtson contends his convictions on counts one, two, and
three were not based on factually distinct offenses because each
conviction was predicated on a single incident — namely, the
backrub incident addressed in count three. In support of this
conclusion, Knudtson points out that “the charged timeframe for
count three was fully included in the charged timeframes for counts
one and two,” meaning that verdict forms permitted a finding of
guilt on all three counts if the jury found the backrub incident took
place. And more compelling is Knudtson’s recognition of the fact
that “the jury acquitted Knudtson of the specific SAOC-POT
incidents charged in counts four and five, and it rejected the
pattern of abuse enhancer for counts one, two, and three.”
¶ 35 The People counter that “there was ample discrete evidence
the jury could have relied on in finding each charge proven beyond
a reasonable doubt.” They contend that the inconsistency between
the verdicts and the interrogatories evidences a jury compromise,
which is not error. The People also argue that “[a]bsent evidence to
the contrary, we presume the jury understood and followed the
court’s instructions.” Washington v. People, 2024 CO 26, ¶ 31. The
16 trouble is, the People ignore what the jury was instructed — and
what it was not.
¶ 36 During the instruction phase, the jurors were told that, in
order to convict Knudtson of SAOC-POT, they “must either
unanimously agree that the defendant committed the same act or
acts, or that the defendant committed all of the acts described.”
Such a unanimity instruction is required when the prosecution
chooses not to elect specific acts in a given charge. Thomas v.
People, 803 P.2d 144, 152 (Colo. 1990). But notably — and fatally
to the People’s position on appeal — the jury verdict forms for
counts one and two did not repeat the instruction and did not ask
the jury to either note which act or acts it found were committed or
state that it unanimously found that all of the acts described by
T.K. were committed. Thus, if the verdict forms for counts one and
two were, as the People now argue, intended to encompass the more
generalized description of abuse over the years, the verdicts would
necessarily fail for lack of unanimity.
¶ 37 Instead, the jury was instructed to decide for each offense
whether Knudtson committed the sexual assault as part of a
pattern of abuse, meaning that the prosecution proved beyond a
17 reasonable doubt “the commission of two or more incidents of
sexual contact” committed by Knudtson on T.K. In rejecting this
sentence enhancer, the jury necessarily found that the prosecution
proved one — and only one — incident of sexual assault. And given
that the jury acquitted Knudtson of counts four and five, which
involved the post-swimming incident and the shower incident, the
only incident of sexual assault on which the jury’s conviction could
have been based is the backrub incident reflected in count three. It
follows that because count three fell within the time range specified
by counts one and two, the jury’s conviction on all three counts was
based solely on the backrub incident and nothing else.
¶ 38 We agree with Knudtson that the interrogatories are not
inconsistent with the verdicts; rather, they are consistent “if, and
only if, each SAOC guilty verdict was based on the same act” — the
backrub incident. Presuming the jury followed the instructions, see
Washington, ¶ 31, we must infer that the jury could only
unanimously agree on one of the incidents of abuse T.K. described:
that the backrub incident occurred; that T.K. was ten at the time;
and thus this incident supported a verdict of guilty on each of the
first three counts.
18 ¶ 39 Because the jury found Knudtson guilty of a single act of
sexual contact — and thus a single unit of prosecution — he can
only stand convicted of a single offense. See Whiteaker, ¶ 24.
IV. Disposition
¶ 40 We vacate Knudtson’s convictions and sentences for counts
two and three of the SAOC-POT charges4 and remand to the trial
court with directions to merge these offenses with count one and to
correct the mittimus accordingly. In all other respects, the
judgment is affirmed.
JUDGE YUN and JUDGE GRAHAM concur.
4 We agree with Knudtson and the People that the merger of counts
two and three into count one, which included a sentence enhancer for sexual contact with a child under fifteen, is the proper remedy to give the maximum effect to the jury’s verdict. See Halaseh v. People, 2020 CO 35M, ¶ 10.