22CA1392 Peo v Larks 11-06-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1392 Weld County District Court No. 19CR2553 Honorable Allison J. Esser, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Dante Ramon Larks,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Meirink and Hawthorne*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 6, 2025
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Casey J. Mulligan, Alternate Defense Counsel, Boulder, 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. 2025. ¶1 Defendant, Dante Ramon Larks, appeals his convictions for
one count of sexual assault aided by a deadly weapon, two counts
of sexual assault on a child by one in a position of trust as part of a
pattern of abuse, one count of aggravated incest, and one count of
child abuse. We affirm.
I. Background
¶2 The charges in this case stem from the report of Larks’
daughter, K.M.L., that Larks sexually assaulted her multiple times,
from March 2018 until December 2018 when K.M.L. was removed
from the family home. K.M.L. was fourteen and fifteen years old at
the time.
¶3 K.M.L. first disclosed the sexual assaults to her sister, K.A.L.,
in October 2019. Shortly thereafter, forensic interviewer Chris
Eisenhauer interviewed K.M.L., and K.M.L. detailed the verbal,
physical, and sexual abuse she experienced from Larks. The jury
heard recordings of this interview at trial and testimony from
K.M.L., K.A.L., Eisenhauer, and L.Z.L., Larks’ wife and K.M.L.’s
mother.
¶4 Following a fourteen-day trial, the jury convicted Larks of
aggravated incest, sexual assault aided by a deadly weapon, sexual
1 assault on a child by one in a position of trust as part of a pattern
of abuse, and child abuse. The jury hung on three other counts,
which were dismissed. Larks was sentenced to 122 years to life in
the Department of Corrections’ custody.
¶5 Larks raises five issues on appeal. We address and reject each
in turn.
II. Statement Regarding the 2016 Report
¶6 Larks first contends that the trial court erred by precluding
evidence that K.M.L., after reporting in 2016 that she was sexually
assaulted by a peer, told K.A.L., “I have no idea what it’s like to be
sexually assaulted.” The parties disagree over whether this issue is
preserved. However, because we conclude that Larks waived this
contention of error and thus decline to review the court’s
determination, we need not reach the preservation issue. See
People v. Rediger, 2018 CO 32, ¶ 40 (waiver extinguishes error and
therefore appellate review).
A. Additional Background
¶7 In 2016, K.M.L. reported that a peer sexually assaulted her.
K.M.L. was later diagnosed with post-traumatic stress disorder
(PTSD) in 2018. Premised on this diagnosis, the prosecution
2 charged Larks with child abuse resulting in serious bodily injury
(SBI) under section 18-6-401(1)(a), C.R.S. 2025. The trial court
dismissed this count and the prosecution appealed. In an
unpublished opinion, a division of this court concluded that
K.M.L.’s PTSD diagnosis established probable cause that Larks
committed the crime of child abuse resulting in SBI and reinstated
the count. People v. Larks, (Colo. App. No. 20CA1060, Nov. 12,
2020) (not published pursuant to C.A.R. 35(e)).
¶8 Larks then filed a pretrial motion asking to introduce evidence
— under the Colorado Rape Shield Statute, section 18-3-407(1)(b),
C.R.S. 20221 — that “the victim was diagnosed with PTSD as a
result of a [2016] sex assault [by a peer] that predates the date of
offense in this case.” The trial court granted this motion. The court
cautioned, however, that Larks could not use evidence of the alleged
2016 assault to also show a history of false reporting as that would
implicate section 18-3-407(2), which requires a separate motion
1 The current version of the statute differs from the 2022 version in
that only one instance of false reporting is required instead of a history of false reporting. § 18-3-407, C.R.S. 2025. We cite the 2022 version throughout this opinion because the court decided Larks’ motion under that version.
3 and different proof. Defense counsel conceded that he could not
“make a good faith claim that there’s a history of false reporting.”
¶9 In his opening statement, defense counsel said that K.M.L.
was treated for “PTSD that she had been diagnosed with . . . based
upon a sexual assault that occurred in 2016.” The following day,
defense counsel informed the court that he planned to elicit
testimony from K.A.L. that K.M.L. told her, after making the 2016
report, “I don’t know what it’s like to be sexually assaulted.” This,
defense counsel opined, amounted to K.M.L. “admitt[ing] that she
was not, in fact, sexually assaulted by this young man,” and it was
therefore probative of K.M.L.’s character for untruthfulness. The
court ruled that the statement was inadmissible and reiterated that
if defense counsel wanted to use the 2016 report to show a history
of false reporting, defense counsel had to follow the procedure in
section 18-3-407(2), which he had not done.
¶ 10 Three days later, during direct examination, the prosecution
asked K.M.L. about the 2016 report. Defense counsel objected on
relevance grounds. The court overruled the objection, concluding
that the question was relevant to establishing a timeline after
K.M.L. mentioned the peer in a forensic interview video viewed by
4 the jury. Larks argues, for the first time on appeal, that this
“opened the door” to inquiry about K.M.L.’s statement to K.A.L. As
discussed below, we do not assess this contention’s merits because
we conclude that Larks waived his right to introduce the statement.
B. Applicable Law and Analysis
¶ 11 “[A]n appellate court has an independent, affirmative duty to
determine whether a claim is preserved and what standard of
review should apply, regardless of the positions taken by the
parties.” Forgette v. People, 2023 CO 4, ¶ 15 (quoting People v.
Tallent, 2021 CO 68, ¶ 11). We review de novo whether a claim is
waived. Id.
¶ 12 Waiver is the intentional relinquishment of a known right. Id.
at ¶ 28. “A waiver may be explicit, as, for example, when a party
expressly abandons an existing right or privilege, or it may be
implied, as when a party engages in conduct that manifests an
intent to relinquish a right or privilege or acts inconsistently with its
assertion.” Id. An appellate court “indulge[s] every reasonable
presumption against waiver.” Rediger, ¶ 39 (quoting People v.
Curtis, 681 P.2d 504, 514 (Colo. 1984)). Forfeiture, on the other
hand, is the failure to make the timely assertion of a right. Id. at
5 ¶ 40. This distinction is significant because waiver extinguishes
appellate review, but forfeiture does not. Id.
¶ 13 Larks’ counsel mentioned the 2016 report during opening
statements and moved to introduce it as an alternate cause of
PTSD. This was likely a strategic attempt to undermine the
prosecution’s theory that Larks caused K.M.L.’s PTSD. See People
v. Daley, 2021 COA 85, ¶ 117 (the defendant made a strategic
choice by choosing to reference evidence in her opening statement
that the prosecution later discussed during direct examination).
Larks cannot now argue on appeal that the court deprived him of
the right to introduce K.M.L.’s statement to cast doubt on the
report’s truthfulness. He moved to admit the report for its truth; he
cannot simultaneously introduce evidence purporting to show that
it was false. See People v. Babcock, 2023 COA 49, ¶ 28 (concluding
that the defendant waived an argument when he took contradictory
stances on the same issue), aff’d, 2025 CO 26. Larks’ conflicting
position amounts to waiver, precluding our review. See Forgette,
¶ 28.
6 III. Eisenhauer’s Testimony
¶ 14 Larks next argues that the trial court erred by allowing
Eisenhauer, a prosecution-endorsed expert in forensic interviewing,
to imply that K.M.L. “was telling the truth.” Larks points to two
instances of purported improper bolstering: (1) when the
prosecution asked, and Eisenhauer answered, if there is a
difference between a child responding to the question, “Were you
sexually assaulted?” and a child disclosing the assault through
“free recall” (recall testimony); and (2) when the prosecution asked,
and Eisenhauer answered, why she always elicits a promise from
children “to tell the truth” during forensic interviews (rapport
building testimony). We address these contentions separately
because the two instances present distinct preservation issues, but
we disagree with Larks on both accounts.
A. Recall Testimony
1. Additional Background
¶ 15 On cross-examination, defense counsel asked Eisenhauer
about a child’s suggestibility. Specifically, counsel asked if there is
a difference between a child saying, “in free recall, ‘I was sexually
assaulted,’ versus . . . an adult or authority figure ask[ing] the
7 child, ‘were you sexually assaulted,’ and then the child answers in
the affirmative?” Eisenhauer answered that there “certainly could
be,” depending on “the relationship they have with the person that’s
asking them and their tone of voice.”
¶ 16 On redirect examination, the prosecution reminded
Eisenhauer of defense counsel’s question about the difference
between free recall and someone asking the child a question. The
prosecution then asked, “If you’re asked a question of, ‘were you
sexually assaulted,’ does that mean that the answer is less true
than if you were saying, free recall, ‘I was sexually assaulted?’”
Defense counsel objected to the question’s language, and the court
overruled the objection. The prosecution proceeded to ask if both a
free recall statement and an answer to a question could be equally
true or equally false, to which Eisenhauer responded affirmatively.
¶ 17 Larks argues on appeal that this amounts to inadmissible
bolstering because K.M.L.’s credibility was the “focal issue in the
case.” In answering the prosecution’s question, Larks contends
that Eisenhauer implied K.M.L. was being truthful. We do not
address the merits of this contention because we determine that
Larks invited the error.
8 2. Applicable Law and Analysis
¶ 18 “The doctrine of invited error prevents a party from
complaining on appeal of an error that he or she has invited or
injected into the case; the party must abide the consequences of his
or her acts.” Rediger, ¶ 34. Because Larks invited this testimony
by first raising the issue on cross-examination, we decline to
address his argument that the trial court erred by allowing the
prosecution to ask a follow-up question about that testimony. See
People v. Munoz, 240 P.3d 311, 320 (Colo. App. 2009) (concluding
that the defendant invited follow-up testimony on redirect by asking
questions about the same subject matter on cross-examination).
Larks “cannot complain of any error that resulted from testimony
he himself elicited.” Id.
B. Rapport Building Testimony
¶ 19 Eisenhauer was qualified as an expert in forensic interviewing
and conducted three forensic interviews with K.M.L. On direct
examination, Eisenhauer described the process she follows in each
interview, beginning with a “rapport building” phase in which she
gets to know the child, helps her feel comfortable, and assesses her
9 developmental level. During this phase, Eisenhauer “elicit[s] a
promise of the truth.” The prosecution asked why she does that,
and Eisenhauer responded, “I do that because research shows if
they promise to tell the truth, that they’re more likely than not to
tell the truth.”
¶ 20 On appeal, Larks argues this testimony implied that K.M.L.
was telling the truth in the forensic interview where she disclosed
Larks’ abuse and thus impermissibly bolstered her credibility. To
support this, Larks highlights that Eisenhauer testified as an expert
in forensic interviewing and as K.M.L.’s interviewer. The jury heard
Eisenhauer elicit from K.M.L. a promise to tell the truth in the
interviews; thus, says Larks, Eisenhauer’s testimony that children
are “more likely than not to tell the truth” suggested that K.M.L.
was being honest.
¶ 21 While we agree that Eisenhauer’s dual role as a lay and expert
witness posed a unique risk of bolstering K.M.L.’s credibility, we
cannot conclude that the trial court plainly erred.
2. Applicable Law and Analysis
¶ 22 The parties agree that the issue is unpreserved. We review
unpreserved issues for plain error. People v. Conyac, 2014 COA
10 8M, ¶ 53. Under this standard, the defendant bears the burden of
establishing that at the time the error arose, “it was so clear cut
and so obvious that a trial judge should have been able to avoid it
without the benefit of objection.” Id. at ¶ 54. The defendant must
also establish that the error “undermined the fundamental fairness
of the trial itself, so as to cast serious doubt on the reliability of the
conviction.” Id.
¶ 23 Larks relies on Venalonzo v. People, 2017 CO 9, ¶ 32, factually
and for the proposition that “witnesses are prohibited from
testifying that another witness is telling the truth on a particular
occasion.” In Venalonzo, an expert in forensic interviewing also
directly interviewed the child victims of sexual assault. Id. at ¶ 35.
The expert testified that the children’s behaviors during the
interview “were common to [those of] other child sex assault victims
she had interviewed.” Id. The Colorado Supreme Court held that
the prosecution could introduce videotaped forensic interviews
without this testimony and concluded that comparing the victims to
other children who experienced sexual assault improperly bolstered
the victims’ credibility. Id. at ¶ 36.
11 ¶ 24 We agree that Larks’ case parallels Venalonzo, as Eisenhauer
also served as a lay and expert witness. The jury viewed recordings
of K.M.L.’s interviews, in which Eisenhauer elicited a promise from
K.M.L. to be truthful. Eisenhauer’s statement that she elicits this
“because research shows if they promise to tell the truth that
they’re more likely than not to tell the truth” did little to provide
context to the interview and instead implied that K.M.L. was indeed
truthful. See also People v. Snook, 745 P.2d 647, 648-49 (Colo.
1987) (testimony that children tend not to fabricate stories of sexual
abuse and that they often reproduce their own experience when
reporting it amounted to support for the victim’s truthful character).
Thus, we agree with Larks that the error was obvious in light of
Venalonzo and Snook.
¶ 25 However, the error did not undermine the trial’s fundamental
fairness. See id. Larks effectively cross-examined Eisenhauer on
this testimony, both parties asked other lay witnesses about
K.M.L.’s character for truthfulness, and other family members’
testimony corroborated the alleged instances of abuse.
Significantly, the jury returned a hung verdict on three counts of
sexual assault. The split verdict suggests jurors thoughtfully
12 “parsed the evidence” and were not unduly influenced by
Eisenhauer’s improper testimony. People v. Quillen, 2023 COA
22M, ¶ 39; see also People v. Larsen, 2017 CO 29, ¶ 16 (concluding
that a split verdict indicates that improper evidence did not
influence the jury).
IV. Involuntary Psychological Evaluation
¶ 26 Larks next contends that the trial court erred in denying his
request for an involuntary psychological evaluation of K.M.L. We
disagree.
¶ 27 K.M.L. was diagnosed with PTSD in 2018 after disclosing the
alleged 2016 sexual assault by a peer, and K.M.L.’s therapist again
diagnosed her with PTSD after she disclosed the 2018 sexual
assault by Larks. Before trial, K.M.L. waived her privileges to all
mental health records, making therapy and hospitalization
documents, including her PTSD diagnoses, available to defense
counsel. A defense-endorsed expert, Alison Osborn, reviewed these
records and stated that forming an independent opinion on whether
K.M.L. suffers from PTSD required her to conduct her own two-to-
four-hour clinical evaluation. According to Osborn, relying on
13 third-party sources “would limit the reliability and validity” of her
opinion. Larks subsequently moved for an order allowing Osborn to
conduct a psychological evaluation of K.M.L.
¶ 28 The prosecution countered that the defense had access to
K.M.L.’s mental health records, K.M.L. experienced extreme anxiety,
and, according to K.M.L.’s therapist, it would likely be “very
traumatic for her” to rehash the details of the alleged abuse if a
clinician — chosen by Larks — forced her to do so. At a pretrial
hearing, K.M.L. “beg[ged]” the court to deny the motion,” stating it
took her years to open up to her own therapist about the abuse she
endured and equating the involuntary evaluation to “rip[ping] [her]
soul open to a stranger.”
¶ 29 Pursuant to People v. Chard, 808 P.2d 351, 355 (Colo. 1991),
the trial court balanced the parties’ positions and considered
whether Larks had a “compelling need” for the evaluation that
outweighed the risk of re-traumatizing K.M.L. Because medical
records supporting the PTSD diagnosis were available to Larks, the
court concluded that Larks had not shown a compelling need for an
involuntary evaluation that outweighed the potential risk to
K.M.L.’s well-being.
14 B. Applicable Law and Analysis
¶ 30 We review the trial court’s denial of a motion for an
involuntary psychological examination for an abuse of discretion.
People v. Melendez, 80 P.3d 883, 888 (Colo. App. 2003), aff’d, 102
P.3d 315 (Colo. 2004). A court abuses its discretion where its
decision is manifestly arbitrary, unreasonable, or unfair, or based
on a misapprehension or misapplication of the law. People v.
Ehrnstein, 2018 CO 40, ¶ 13.
¶ 31 The Colorado Supreme Court stated in Chard, “In deciding
whether to grant a defendant’s motion for the involuntary
psychological examination of a child sexual-abuse victim, the court
must weigh the defendant’s right to a fair trial against the invasion
of the victim’s privacy.” 808 P.2d at 353. Chard presented affidavit
evidence and testimony to support his position that an evaluation
was necessary, but the court found that this was undermined by
his own testimony. Id. at 354. On this basis, the supreme court
concluded that Chard had not shown a compelling need for the test
as it was unlikely to yield material evidence that outweighed
possible trauma to the victim. Id.
15 ¶ 32 The record before us shows that the trial court considered
both parties’ positions and balanced them accordingly. The trial
court noted it was an “extremely close question,” but “there is
clearly a prior diagnosis of PTSD,” and in light of this, Larks did not
meet his burden of showing beyond a reasonable doubt that an
independent evaluation was necessary. The court acknowledged
Osborn’s reluctance to make a PTSD determination without
personally evaluating K.M.L., but it stated, “the Court absolutely
finds the emotional trauma is unmeasurable to this victim and,
quite frankly, the Court has doubts [as] to whether any examination
[will] produce material which would ultimately be helpful to the
defendant.” Accordingly, the trial court denied the motion.
¶ 33 Even if we were to balance these interests ourselves and come
to a different conclusion, we cannot say the trial court abused its
broad discretion in making its determination; the determination
was not arbitrary, unreasonable, or unfair. Chard, 808 P.2d at 354;
see also People v. Kriho, 996 P.2d 158, 177 (Colo. App. 1999)
(concluding that while “reasonable minds” could come to a different
conclusion than the trial court did, its decision did not rise to an
abuse of discretion); People v. Medina, 51 P.3d 1006, 1018 (Colo.
16 App. 2001) (conceding that although a piece of evidence had
marginal relevance, the reviewing court cannot say that the trial
court abused its discretion in admitting it). We therefore conclude
that the trial court did not err by denying Larks’ motion for an
involuntary psychological evaluation of K.M.L.
V. The Bicycle Incident
¶ 34 Fourth, Larks argues the trial court erred in admitting, as
evidence of child abuse, that Larks kicked L.Z.L. down the stairs
and rode over her fingers with a bicycle in K.M.L.’s presence (the
bicycle incident). Larks claims that this was improper “other act”
evidence under CRE 404(b) or, alternatively, unfairly prejudicial
under CRE 403. We are not persuaded.
¶ 35 K.M.L. testified that Larks deprived her of sleep and made her
stand against a wall as punishment. Larks objected to this
testimony on CRE 403 and 404(b) grounds. The court overruled
this objection and found that all abusive acts K.M.L. experienced or
observed during the relevant timeframe were admissible.
¶ 36 The jury heard about the bicycle incident twice: first from
K.M.L. during a redacted forensic interview recording and again
17 when L.Z.L. testified on direct examination. Larks did not object to
the recording but objected when L.Z.L. testified about the bicycle
incident and Larks’ “nonverbal cues when he’s angry.” The court
sustained this objection on relevance grounds but allowed the
prosecution to continue questioning L.Z.L. about the abuse K.M.L.
witnessed.
¶ 37 Larks now argues on appeal that the bicycle incident
constitutes “other act” evidence under CRE 404(b) and that the trial
court was required to conduct an analysis under People v. Spoto,
795 P.2d 1314 (Colo. 1990). Larks also posits that the testimony
was unfairly prejudicial under CRE 403. He maintains that the
issue is preserved because he objected on these grounds to K.M.L.’s
testimony about sleep deprivation and other forms of punishment
and, in overruling that objection, the court remarked that abusive
acts K.M.L. observed were admissible. The prosecution counters
that the defense objected to different testimony describing different
acts of abuse and notes that the court sustained the
contemporaneous relevance objection Larks made when L.Z.L.
testified about the bicycle incident. We conclude that the issue is
unpreserved because Larks did not object to L.Z.L.’s testimony on
18 the same grounds raised in this appeal. See People v. Ujaama,
2012 COA 36, ¶¶ 37-38 (to preserve an issue, a party must object
at trial on the same grounds asserted on appeal, and with enough
specificity to alert the trial court to the issue of which the defendant
now seeks review).
¶ 38 We review unpreserved issues for plain error. Conyac, ¶ 53.
Under this standard, the defendant bears the burden of
establishing that at the time the error arose, “it was so clear cut
and so obvious that a trial judge should have been able to avoid it
without benefit of objection.” Id. at ¶ 54. For an error to be
obvious, “the action challenged on appeal ordinarily ‘must
contravene (1) a clear statutory command; (2) a well-settled legal
principle; or (3) Colorado case law.’” Scott v. People, 2017 CO 16,
¶ 16 (quoting People v. Pollard, 2013 COA 31M, ¶ 40). The
defendant must also establish that the error “undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the conviction.” Conyac, ¶ 54.
¶ 39 The jury first heard about the bicycle incident from K.M.L. in a
redacted forensic interview. The parties agreed not to redact the
19 bicycle incident from this interview, and Larks did not object when
the recording was played. Thus, any conceivable error by the trial
court in allowing L.Z.L. to testify about that same incident was not
obvious; L.Z.L. was merely discussing evidence made previously
available to the jury. People v. Crabtree, 2024 CO 40M, ¶ 53
(stating that we must determine whether the error was obvious
when committed, not whether it is obvious on appeal); see also
People v. Douglas, 2015 COA 155, ¶ 41 (concluding that the trial
court did not commit plain error in admitting testimony that was
cumulative of other properly admitted testimony). Additionally,
given the substantial amount of evidence supporting the allegations
against Larks, we cannot say this testimony undermined the trial’s
fundamental fairness or calls into doubt the reliability of Larks’
convictions. Cardman v. People, 2019 CO 73, ¶ 39 (stating that the
question at this step of the plain error analysis is whether a
reasonable possibility exists that the error contributed to the
conviction).
20 VI. Cumulative Error
¶ 40 Finally, Larks contends that even if none of the stated errors
individually warrant reversal, the trial court’s alleged errors
cumulatively prejudiced him and warrant reversal.
¶ 41 We review claims of cumulative error de novo. Howard-Walker
v. People, 2019 CO 69, ¶ 22. Cumulative error may occur when
“[n]umerous formal irregularities, each of which in itself might be
deemed harmless, may in the aggregate show the absence of a fair
trial, in which event a reversal would be required.” Id. at ¶ 24
(citation omitted). Cumulative error may result in reversal when
“the cumulative effect of [multiple] errors and defects substantially
affected the fairness of the trial proceedings and the integrity of the
fact-finding process.” Id. (alteration in original) (citation omitted).
¶ 42 However, cumulative error “requires that numerous errors be
committed, not merely alleged.” Conyac, ¶ 152. Because we
conclude that the trial court did not err with respect to any of the
contentions we have reviewed, cumulative error did not occur. See
People v. Valdez, 2017 COA 41, ¶ 51.
VII. Disposition
¶ 43 For the reasons stated, the judgment is affirmed.
21 JUDGE MEIRINK and JUDGE HAWTHORNE concur.