Peo v. Martinez

2020 COA 141

• Court: Colorado Court of Appeals
• Decided: October 8, 2020
• Docket: 17CA1583
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY October 8, 2020

2020COA141

No. 17CA1583, Peo v Martinez — Evidence — Admissibility — Victim Impact Evidence — Irrelevant Evidence Inadmissible

A division of the court of appeals considers whether victim

impact evidence is admissible during the guilt/innocence phase of a

sexual assault trial. The division holds that the trial court erred by

admitting victim impact evidence because the evidence did not

make any material fact or element of the offense more or less

probable and was thus inadmissible. Even though the trial court

erred by admitting the victim impact evidence, however, under the

circumstances of this case, the division concludes that the

admission of the evidence was harmless. COLORADO COURT OF APPEALS 2020C0A141

Court of Appeals No. 17CA1583 City and County of Denver District Court No. 16CR710 Honorable Shelley I. Gilman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Samuel Martinez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE LIPINSKY Navarro and Tow, JJ., concur

Announced October 8, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Victim impact testimony packs a punch at a criminal trial.

Trial courts may understandably be inclined to give the victim and

the victim’s family the catharsis of describing the effect on them of

the crime with which the defendant is charged. But the

admissibility of such evidence can deprive the defendant of the right

to be judged based on the jury’s rational deliberation, rather than

on jurors’ visceral reaction upon hearing how the defendant’s

alleged acts affected the victim. “A fair and impartial jury is a key

element of a defendant’s constitutional right to a fair trial under

both the United States and Colorado Constitutions.” People v. Abu-

Nantambu-El, 2019 CO 106, ¶ 14, 454 P.3d 1044, 1047 (citations

omitted).

¶2 Today we decide that a trial court erred by allowing a jury to

hear victim impact evidence — “that evidence relating to the victim's

personal characteristics and to the physical, emotional, or social

impact of a crime on its victim and the victim's family,” Smith v.

State, 119 P.3d 411, 416 (Wyo. 2005) — during the guilt/innocence

portion of a sexual assault trial. The evidence had the potential to

shift the jury’s focus improperly from deciding whether the

defendant, Joseph Samuel Martinez, committed the crime to

1 whether a guilty verdict would assuage the trauma of A.R., the

victim.

¶3 Under the circumstances of this case, however, the admission

of the victim impact evidence constituted harmless error. The guilty

verdict rested on the jury’s implicit but necessary finding that

Martinez lacked credibility in claiming that A.R. had consented to

engage in sex with him. Thus, the admission of the victim impact

evidence did not affect Martinez’s substantial rights and there is no

reasonable probability that it contributed to his conviction.

¶4 We reject Martinez’s other arguments and affirm his judgment

of conviction entered on the jury verdict finding him guilty of sexual

assault on a victim incapable of appraising the nature of her

conduct.

I. Background Facts and Procedural History

A. The Incident

¶5 The trial in this case rested on a single factual dispute —

whether Martinez had known that A.R. was too intoxicated to

consent to sex. Every other material fact was undisputed.

¶6 A.R. recalled consuming three drinks in three hours at a

Denver bar. Her last memory of the evening was checking her

2 phone and using the restroom at the bar at around 9:00 p.m.

A.R.’s bank records reflected that she continued to make purchases

at the bar, in addition to the three drinks, as the evening wore on.

¶7 A.R. next remembered lying on the ground at a Regional

Transportation District (RTD) light-rail station. She recalled that an

RTD officer helped her board a train and that she felt “very

confused, very disoriented,” and “[v]ery, very drunk.” While on the

train, A.R. noticed that her sweatshirt was inside out and that she

was missing her identification card, bus pass, debit card, lunch

bag, and items she had purchased before visiting the bar. She later

discovered that her marijuana pipe and marijuana were also

missing. A.R. did not remember much about the initial train ride or

that she had transferred trains.

¶8 A.R. arrived at the light-rail station nearest her home shortly

before 2:00 a.m. She remembered borrowing a stranger’s cell phone

to call a cab. A.R. recalled that the cab driver was “nice,” but did

not remember the specifics of their conversation. When she

reached her home, A.R. awakened her mother to ask for money to

pay the cab driver. Because A.R. was “stumbling” and “slurring her

3 words,” A.R.’s mother said she believed A.R. was “completely

drunk.”

¶9 The next day, after experiencing painful bowel movements and

seeing blood in the toilet, A.R. told her mother that she “th[ought]

something bad happened.” A.R. and her mother went to the

hospital, where A.R. underwent a sexual assault examination. A

nurse collected DNA, blood, and urine samples from A.R. The

examination revealed that A.R. had a small but “significant” rectal

tear, a small abrasion to her knee, and a sore thumb. The DNA

obtained during A.R.’s examination matched that of Martinez. A

DNA test of Martinez’s saliva confirmed the match.

¶ 10 When a detective notified A.R. of the DNA match and showed

A.R. a picture of Martinez, A.R. said she did not recognize him.

Based on this information, the prosecution charged Martinez with

one count of sexual assault on a victim incapable of appraising the

nature of her conduct, pursuant to section 18-3-402(1)(b), C.R.S.

2019.

B. Martinez’s Trial

¶ 11 At Martinez’s trial, A.R. and her mother testified about the

impact of the alleged sexual assault on A.R., including that,

4 following the incident, A.R. exhibited signs of depression and had a

“close suicidal scare.” Martinez’s counsel objected to the relevancy

of this testimony and, after the district court overruled his

objection, moved for a mistrial. The court denied Martinez’s

motion, but permitted him to cross-examine A.R. and her mother

on issues related to A.R.’s mental health. Martinez’s counsel

pursued this line of cross-examination.

¶ 12 In addition to discussing the impact of the alleged sexual

assault, A.R. testified that her light-rail commute from downtown

Denver typically took an average of between an hour and an

hour-and-a-half. On the night of the incident, however, it took A.R.

three hours and eleven minutes to return home from downtown

Denver.

¶ 13 The detective who investigated the alleged sexual assault

testified next. Although the prosecutor had neither designated him

nor qualified him as an expert witness, the detective testified that

A.R.’s injuries and demeanor during their interview were consistent

with the types of injuries and demeanor he had seen in other

victims of sexual assault.

5 ¶ 14 An expert witness in the fields of “forensic toxicology” and “the

effect of alcohol and controlled substances on the human body” (the

toxicology expert) also testified for the prosecution. Based on the

level of alcohol in A.R.’s urine sample taken during her sexual

assault examination and the average alcohol elimination rate for a

female with A.R.’s weight, the toxicology expert opined that A.R.’s

peak blood alcohol concentration on the night of the incident had

been between 0.3 and 0.4 percent. The expert said that A.R. would

have had to consume between nine and eleven drinks over a

two-and-a-half-hour period to reach that level of intoxication.

¶ 15 The expert further opined that a person who has consumed

that amount of alcohol can “blackout,” meaning that he or she is

conscious but is not forming memories. The expert testified that

she would expect to see outward signs of impairment from a person

in a blackout state.

¶ 16 Finally, the prosecutor introduced into evidence

video-recordings from several RTD light-rail stations on the night of

the incident. The videos showed A.R. stumbling, falling while

crossing light-rail tracks, sleeping on station benches and

platforms, missing trains, and getting on a wrong train.

6 ¶ 17 Martinez’s defense rested on his contention that he and A.R.

had engaged in consensual sex. He said that A.R. approached him

and a group of friends and asked one of his friends whether he

wanted to have sex with her. According to Martinez, after his friend

rejected A.R.’s advances, A.R. handed out marijuana to Martinez

and his friends and then had sex with him. He testified that he

spent between forty and fifty-five minutes conversing with A.R.

before they had sex. He said that A.R. “looked fine,” “was

coherent,” “was walking fine,” and that nothing about her

appearance made him believe that she was too drunk to know what

she was doing.

¶ 18 The cab driver who drove A.R. home from the light-rail station

testified that, while A.R. would “maybe fail a breathalyzer,” “she was

functioning just fine,” did not have any issues entering or exiting

the cab, did not have any problems communicating her address, did

not “pass out,” and did not vomit.

¶ 19 An expert in “forensic psychology related to alcohol, blackouts,

and memory impairment” (the psychology expert) also testified for

Martinez. The psychology expert opined that people can engage in

complex activities during blackouts and that blackouts can, but do

7 not always, cause “substantial impairments due to the alcohol.”

The expert further explained that people who experience blackouts

often try to fill in the gaps in their memory by creating false

memories that align with their assumptions and expectations of

themselves.

¶ 20 During closing argument, the prosecutor did not mention the

impact of the alleged sexual assault on A.R. Rather, the prosecutor

focused on two points. First, she argued that Martinez had tailored

his testimony about A.R.’s missing marijuana to fit the evidence he

had heard while attending the trial. Second, she asserted that,

regardless of the competing expert testimony and A.R.’s lack of

memory of the incident, the video-recordings from the light-rail

stations conclusively proved that, on the night of the incident, A.R.

exhibited outward signs of impairment that showed her incapacity

to appraise the nature of her conduct.

¶ 21 The jury found Martinez guilty of sexual assault on a victim

incapable of appraising the nature of her conduct. The district

court sentenced Martinez to an indeterminate sentence pursuant to

the Colorado Sex Offender Lifetime Supervision Act of 1998

(SOLSA). §§ 18-1.3-1001 to -1012, C.R.S. 2019.

8 II. Analysis

¶ 22 Martinez presents four principal arguments on appeal. He

contends that the district court erred by

(1) admitting irrelevant and highly prejudicial victim impact

evidence regarding A.R.’s depression and close suicidal

scare, and failing to grant his motion for a mistrial after

the jury heard the evidence;

(2) allowing the prosecutor to present a generic tailoring

argument during closing argument;

(3) admitting opinion testimony from the detective even

though he had neither been designated nor qualified as

an expert witness; and

(4) providing a revised theory of defense instruction over the

objection of Martinez’s counsel.

¶ 23 Martinez further asserts that, even if these errors do not

independently require reversal, their cumulative effect requires it.

Finally, Martinez advances a facial challenge to the constitutionality

of SOLSA.

9 A. Victim Impact Evidence

¶ 24 We agree with Martinez’s contention that the district court

erred by admitting evidence regarding A.R.’s depression and “close

suicidal scare” following the incident. However, we find that the

error was harmless and, thus, the court did not abuse its discretion

in denying Martinez’s motion for a mistrial.

1. Standard of Review

¶ 25 We review for an abuse of discretion a trial court’s evidentiary

rulings, People v. Stewart, 55 P.3d 107, 122 (Colo. 2002), as well as

its denial of a motion for mistrial, People v. Santana, 255 P.3d 1126,

1130 (Colo. 2011). “A trial court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law.” People v. Williams, 2019 COA 32, ¶ 21, 446

P.3d 944, 950.

2. The Nonconstitutional Harmless Error Standard Applies

¶ 26 The parties disagree on the appropriate standard for our

review of the district court’s admission of the victim impact

evidence. Martinez contends that the constitutional harmless error

standard applies because the admission of the evidence violated his

rights to due process and a fair trial. In contrast, the People assert

10 that we review for nonconstitutional harmless error because any

error was evidentiary and not of a constitutional magnitude.

¶ 27 We agree with the People and hold that the nonconstitutional

harmless error standard applies to the district court’s evidentiary

rulings. Pernell v. People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673;

see State v. Maske, 591 S.E.2d 521, 528 (N.C. 2004) (reviewing the

admission of victim impact evidence for nonconstitutional harmless

error); Justice v. State, 775 P.2d 1002, 1011 (Wyo. 1989) (same); see

also People v. Flockhart, 2013 CO 42, ¶ 20, 304 P.3d 227, 233

(“Only those errors ‘that specifically and directly offend a

defendant’s constitutional rights are “constitutional” in nature.’”

(quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010))).

¶ 28 Under the nonconstitutional harmless error standard,

“reversal is warranted if the error affects the substantial rights of

the parties, meaning ‘the error substantially influenced the verdict

or affected the fairness of the trial proceedings.’” Zapata v. People,

2018 CO 82, ¶ 61, 428 P.3d 517, 530 (quoting Hagos v. People,

2012 CO 63, ¶ 12, 288 P.3d 116, 119). Thus, “[i]f we can say with

fair assurance that, in light of the entire record of the trial, the error

did not substantially influence the verdict or impair the fairness of

11 the trial, the error is harmless.” Id. at ¶ 62, 428 P.3d at 530; see

Pernell, ¶ 22, 411 P.3d at 673 (“[A]n objected-to trial error is

harmless if there is no reasonable possibility that it contributed to

the defendant’s conviction.”).

3. Legal Authority

¶ 29 Victim impact evidence is evidence that relates to “the victim’s

personal characteristics and to the physical, emotional, or social

impact of a crime on its victim and the victim’s family.”

Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010) (quoting Smith

v. State, 119 P.3d 411, 416 (Wyo. 2005)); see State v. Graham, 650

S.E.2d 639, 645 (N.C. Ct. App. 2007) (explaining that victim impact

evidence includes the physical, psychological, emotional, and

economic toll a crime takes on the victim and the victim’s family).

¶ 30 The United States Supreme Court decided more than three

decades ago that victim impact evidence is inadmissible because it

may be “wholly unrelated to the blameworthiness of a particular

defendant” and “could divert the jury's attention away from the

defendant’s background and record, and the circumstances of the

crime.” Booth v. Maryland, 482 U.S. 496, 504, 505 (1987),

overruled by Payne v. Tennessee, 501 U.S. 808 (1991).

12 ¶ 31 But after a change in the composition of the Court, it reversed

course and held that, during the sentencing phase of a death

penalty trial, a prosecutor may present evidence of the impact of the

murder. Payne, 501 U.S. at 825 (holding that victim impact

evidence is admissible to remind the jury that “the victim is an

individual whose death represents a unique loss to society and in

particular to his family” (quoting Booth, 482 U.S. at 517) (White, J.,

dissenting)). The Colorado Supreme Court has cited Payne

approvingly. See People v. Dunlap, 975 P.2d 723, 744 n.14 (Colo.

1999) (holding that “evidence about the victim and about the impact

of the murder on the victim’s family is relevant to the jury’s decision

as to whether or not the death penalty should be imposed” (quoting

Payne, 501 U.S. at 827)).

¶ 32 No Colorado case has addressed the admissibility of victim

impact evidence during the guilt/innocence phase of a criminal

trial. But we need not decide today whether victim impact evidence

is ever admissible during the guilt/innocence phase of a criminal

case because we hold that, in this case, the victim impact evidence

was irrelevant and, thus, inadmissible.

13 ¶ 33 Because “the effect of a crime on a [victim or the] victim’s

family often has no tendency to prove whether a particular

defendant committed a particular criminal act against a particular

victim,” such evidence is generally irrelevant during the

guilt/innocence phase of a trial. Graham, 650 S.E.2d at 645.

Thus, the admissibility of victim impact evidence during the

guilt/innocence phase of a trial turns on whether the evidence is

relevant to determining whether the defendant committed the crime

for which he or she was charged. See id.; Schreibvogel, 228 P.3d at

883; see also CRE 402 (irrelevant evidence is inadmissible); People

v. Clark, 2015 COA 44, ¶ 17, 370 P.3d 197, 204 (“In criminal cases,

evidence is relevant if the evidence makes it more or less probable

that a criminal act occurred, the defendant was the perpetrator, or

the defendant acted with the necessary criminal intent.”).

¶ 34 Thus, victim impact evidence is admissible only if it “tends to

show the context or circumstances of the crime itself.” Graham,

650 S.E.2d at 646. In Graham, a first degree burglary and assault

case, the appellate court considered whether the trial court had

erred in admitting, during the guilt/innocence phase of the trial,

evidence of the impact of the crimes on the mental health of the

14 victim’s mother. The Graham court concluded that admission of

the evidence was error, albeit harmless error, because the evidence

did not “have any tendency to prove that defendant was the

intruder . . . .” Id. at 646-47.

4. The District Court Erred by Admitting the Victim Impact Evidence

¶ 35 After the prosecutor asked A.R. “how things have been

different for you since the night of the [sexual assault],” A.R.

testified,

Immediately following, I missed out on a lot of work. I loved my job, but I ended up — there were mornings where I couldn’t get out of bed. I couldn’t move. I was in physical pain.

I ended up no-calling/no-showing to my job three times in a row, so I was fired. My boss sent a police officer to my house because she was afraid I had killed myself.

I spent the next six months just circling the drain for a long time. It wasn’t that I wanted to kill myself; it was that I just wanted to turn off. I wished there was a switch where I didn’t have to feel or think or be conscious.

I had class two days a week, and school’s kind of always been my safe place, a place where I really excel. The other five days a week I spent either sleeping too much, not sleeping at all, eating too much, not eating at all. I was very, very, very depressed, to say the least.

15 That following March . . . I did have a close suicidal scare.

¶ 36 The prosecutor elicited similar testimony from A.R.’s mother:

[PROSECUTOR:] Now, I want to talk to you a little bit about [A.R.’s] behavior after the assault. Did you notice anything different after the assault about her behavior?

[MOTHER:] She hibernated afterwards. She went into her room and didn’t come out for an extended period of time. She would come out, go right back.

[PROSECUTOR:] Was this different than how she behaved before?

[MOTHER:] Yes.

[PROSECUTOR:] Did you notice any signs of depression?

[MOTHER:] Yeah. She quit going to work. She quit hanging out with friends, taking her dog on a walk. She just — she just closed herself into the basement bedroom and bathroom and made herself have a very small world.

¶ 37 Martinez contends that this testimony was irrelevant because

it had no tendency to prove the contested issue at trial: whether he

“[knew] that [A.R. was] incapable of appraising the nature of [her]

conduct.” § 18-3-402(1)(b). Moreover, according to Martinez, the

16 evidence was highly prejudicial because it came from two witnesses

and likely elicited the jury’s sympathy for A.R.

¶ 38 In response, the People assert that the testimony did not

constitute victim impact evidence and, in any event, was relevant

because it showed “A.R.’s behaviors in the aftermath of her rape to

show her lack of recall of the events that occurred on the night of

the rape to counter [Martinez’s] claim that A.R. was cognizant of her

actions and consented to sex with him.” Thus, according to the

People, A.R.’s and her mother’s testimony was necessary “to show

that A.R. was so heavily intoxicated that she was incapable of

apprising the nature of her conduct, and, thus, she could not and

did not consent to have sex with [Martinez].”

¶ 39 As an initial matter, we hold that the testimony constituted

victim impact evidence because it described the “physical [and]

emotional” toll that the alleged sexual assault took on A.R. See

Schreibvogel, 228 P.3d at 883 (quoting Smith, 119 P.3d at 416).

¶ 40 We agree with Martinez that A.R.’s and her mother’s testimony

was irrelevant. The prosecutor did not establish at trial how A.R.’s

depression and “close suicidal scare” following the sexual assault

were relevant to any material fact. Specifically, the prosecutor did

17 not show that the victim impact evidence made any material fact or

element of the offense more or less probable. For example, the

evidence did not shed light on why the victim could not remember

anything between 9:00 p.m., when she was still at the bar, and

when she found herself lying on the ground at a light-rail station

hours later. And it did not tend to prove that Martinez possessed or

lacked the criminal intent to be found guilty of sexual assault. See

§ 18-3-402(1)(b); see also Justice, 775 P.2d at 1010 (“[The victims’]

discussion of the impact of the crime upon them could not in any

way serve to establish any of the elements of the crime . . . .”).

¶ 41 For these reasons, the district court erred by admitting A.R.’s

victim impact evidence.

5. The District Court’s Error in Admitting the Victim Impact Evidence Was Harmless

¶ 42 Although the district court erred in admitting the victim

impact evidence, we hold that the error was harmless because, “in

light of the entire record of the trial, the error did not substantially

influence the verdict or impair the fairness of the trial.” Zapata,

¶ 62, 428 P.3d at 530.

18 ¶ 43 The victim impact evidence constituted a minor portion of

Martinez’s trial. See People v. Whitman, 205 P.3d 371, 385 (Colo.

App. 2007). The prosecutor asked A.R. and her mother a total of

four questions regarding A.R.’s behavior following the sexual

assault. This questioning constituted, at most, a few minutes of

Martinez’s three-day trial. Moreover, the prosecutor did not refer to

or repeat this testimony at any other point of the trial, including

during her opening statement and closing argument. Thus, the

prosecutor did not unduly highlight the victim impact evidence or

direct the jury to convict Martinez because of it.

¶ 44 The district court also blunted the prejudicial force of the

victim impact evidence by permitting Martinez’s counsel to inquire

into A.R.’s mental health history on cross-examination. In doing so,

Martinez’s counsel established that A.R. had a history of depression

and alcohol use, thereby showing that her “close suicidal scare”

could have been caused by factors other than the alleged sexual

assault. Further, absent evidence to the contrary, we assume the

jury heeded the court’s instruction not to be influenced by

sympathy, bias, or prejudice in reaching its decision. See People v.

Villa, 240 P.3d 343, 352 (Colo. App. 2009).

19 ¶ 45 Most significantly, the evidence of Martinez’s guilt was

overwhelming. The prosecutor’s closing argument focused on

Martinez’s lack of credibility and A.R.’s obvious impairment in the

video-recordings from the light-rail stations. Indeed, after

discussing the video-recordings, the prosecutor stated,

There’s nothing vague or speculative or imaginary about what you just saw. It is real. And we could have gone through this trial and never presented [the toxicology expert] to you, and you would have had enough evidence just based on this video about [A.R.’s] level of intoxication at the time that she encountered [Martinez] and about her ability to consent.

¶ 46 Thus, contrary to Martinez’s characterization of the evidence,

this was not a he said/she said case that rested solely on two

individuals’ conflicting accounts. While Martinez’s counsel

challenged A.R.’s credibility, the prosecutor’s case did not rest on

whether the jury thought A.R. was believable. A.R. said she could

not recall her encounter with Martinez.

¶ 47 Rather, the prosecutor’s key evidence was the video-recordings

showing A.R. at the various light-rail stations following the incident.

Even setting aside the evidence of A.R.’s blood alcohol level at the

time of the incident, the video-recordings provided objective

20 evidence that could not be squared with Martinez’s testimony that

nothing about A.R. had caused him to believe she was too

intoxicated to consent to sex.

¶ 48 The video-recordings establish that A.R. was highly intoxicated

while at the light-rail stations. The videos depict an individual who

could not walk without stumbling, dropped to the ground for

approximately four minutes before pulling herself onto a bench,

tumbled while crossing light-rail tracks, fell asleep at two light-rail

stations — once on a bench and once while propped up against a

signpost, missed trains she needed to take to return home, and had

to be awakened by an RTD officer so she could board one of the last

trains leaving the station for the night. This evidence directly bore

on Martinez’s credibility because it allowed the jury to infer that

A.R. was highly intoxicated — and exhibited outward signs of

impairment — during her encounter with Martinez. See People v.

Bertrand, 2014 COA 142, ¶ 9, 342 P.3d 582, 584 (“The law makes

no distinction between direct and circumstantial evidence.”).

¶ 49 In sum, although the district court erred by admitting A.R.’s

victim impact evidence, the error was harmless in light of the

overwhelming evidence of Martinez’s guilt. “[T]here is no reasonable

21 possibility that [the victim impact evidence] contributed to [his]

conviction.” Pernell, ¶ 22, 411 P.3d at 673.

¶ 50 And because Martinez has failed to show that he was

substantially prejudiced by the admission of the victim impact

evidence, the district court did not abuse its discretion in denying

his motion for a mistrial. See People v. Ned, 923 P.2d 271, 275

(Colo. App. 1996) (holding that a defendant must show actual

prejudice to warrant reversal of a trial court’s denial of a motion for

mistrial).

B. The Prosecutor’s Comments on Martinez’s Credibility

¶ 51 Martinez asserts that reversal is required because the district

court permitted the prosecutor to present a generic tailoring

argument during closing, which “create[d] an unjustifiable inference

of guilt” based solely upon Martinez’s presence at trial. We

disagree.

¶ 52 We review claims of prosecutorial misconduct under a

two-step analysis. Wend, 235 P.3d at 1096. “First, [we] must

determine whether the prosecutor’s questionable conduct was

improper based on the totality of the circumstances and, second,

22 whether such actions warrant reversal according to the proper

standard of review.” Id.

2. Preservation

¶ 53 The parties disagree whether Martinez preserved this issue for

appeal. Martinez contends that he preserved the issue through his

counsel’s objection that the prosecutor had engaged in burden-

shifting, thereby “alert[ing] the trial court to the potential

impropriety of the prosecutor’s closing argument.” Martinez v.

People, 244 P.3d 135, 140 (Colo. 2010). In response, the People

assert that Martinez failed to preserve the issue because his counsel

objected “on grounds different from those raised on appeal.” People

v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304.

¶ 54 Because we conclude that the prosecutor did not engage in

misconduct, we need not resolve this dispute. See Hagos, ¶ 9, 288

P.3d at 118 (explaining that preservation affects the standard of

review that we employ “to determine whether an error in criminal

proceedings necessitates reversal of the judgment of conviction”).

¶ 55 A prosecutor may attack a defendant’s credibility during

closing argument as long as the attack is based on the evidence in

23 the record or a reasonable inference from that evidence. See

Martinez, 244 P.3d at 140-41; People v. Walters, 148 P.3d 331, 334

(Colo. App. 2006) (“[A] prosecutor has wide latitude and may refer to

the strength and significance of the evidence, conflicting evidence,

and reasonable inferences that may be drawn from the evidence.”).

The prosecutor may do so through a “tailoring argument,” in which

the prosecutor asserts that, by virtue of the defendant’s presence at

trial, the defendant “tailor[ed] his testimony to fit that of other

witnesses.” Martinez, 244 P.3d at 141-42.

¶ 56 While a prosecutor may not make generic tailoring arguments,

the prosecutor may make specific tailoring arguments. Id. “Generic

tailoring arguments occur when the prosecution attacks the

defendant’s credibility by simply drawing the jury’s attention to the

defendant’s presence at trial and his resultant opportunity to tailor

his testimony.” Id. These arguments are improper because “they

are not based on reasonable inferences from evidence in the

record,” and they imply that the defendant is less believable

because he or she exercised the right of confrontation and upheld

his or her statutory duty to be present at trial. Id.; see People v.

Knapp, 2020 COA 107, ¶¶ 58-59, ___ P.3d ___, ___ (deciding that

24 the prosecutor made an improper generic tailoring argument by

telling the jury that the defendant “got to sit and listen to the

evidence, and then testify, based upon the evidence heard in

court”); see also Crim. P. 43(a).

¶ 57 In contrast, a specific tailoring argument is “tied to evidence in

the record. In such circumstances, it is reasonable for the jury to

draw inferences regarding the credibility of the defendant.”

Martinez, 244 P.3d at 141; see State v. Weatherspoon, 212 A.3d

208, 221 (Conn. 2019) (holding that prosecutor’s reference to

conflicting versions of events offered by sexual assault victim and

by defendant, followed by suggestion that defendant’s version was

fabricated, constituted specific tailoring because the argument was

“tied to evidence that supported such an inference”).

4. The Prosecutor Did Not Present a Generic Tailoring Argument

¶ 58 During closing argument, the prosecutor argued,

the defendant also wants you to believe that when the true target of [A.R.’s] affection . . . rebuffed her advances twice, that she was completely unfazed. This drunken girl didn’t think a thing of it, and instead what she started doing was passing out her weed, passing out her weed like candy to every person who was standing there, not to smoke

25 it; that might make a little bit of sense. But nobody smoked.

[Martinez] can’t tell you that, because there’s no evidence that there is marijuana in [A.R.’s] urine results. And so, instead, he tells you this unrealistic story that she just, out of the kindness of her heart, decides to pass out her weed to everybody. Well, why? Why does he have to tell you that story? Well, because that’s the thing that she’s missing.

Because, otherwise, how does he explain the one thing that’s missing from her stuff, right? Unless he’s gone through it. That’s the alternative. So instead, she just passed it out like candy, and that’s the explanation for why she no longer has that or her pipe at the end of the event.

¶ 59 We disagree with Martinez’s assertion that the prosecutor’s

comments constituted a generic tailoring argument. Although the

prosecutor argued that Martinez tailored his testimony to fit other

witnesses’ testimony, the prosecutor tied her argument to evidence

in the record. Martinez, 244 P.3d at 141-42. She specifically

referenced Martinez’s testimony concerning A.R.’s missing

marijuana and pipe and asked the jury to infer that Martinez’s

account lacked credibility. This was a proper specific tailoring

argument. See id.; People v. Constant, 645 P.2d 843, 845-46 (Colo.

1982) (“Counsel can with propriety comment on how well and in

26 what manner a witness measures up to the tests of credibility set

forth in the [jury] instruction.”); Weatherspoon, 212 A.3d at 221

(providing example of specific tailoring). Thus, the district court did

not err by permitting the prosecutor to present a tailoring

argument.

C. The Detective’s Testimony

¶ 60 Martinez contends that the district court plainly erred by

permitting the prosecutor to elicit expert testimony from the

detective without designating or qualifying the detective as an

expert witness. We conclude that the detective’s testimony was

improper, but, given the detective’s qualifications and the

unsurprising nature of his testimony, we hold that the admission of

the testimony did not constitute plain error.

¶ 61 We review a trial court’s evidentiary rulings, including the

admission of expert testimony, for an abuse of discretion.

Venalonzo v. People, 2017 CO 9, ¶¶ 15, 24, 388 P.3d 868, 873, 875.

“A trial court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.”

Williams, ¶ 21, 446 P.3d at 950.

27 ¶ 62 Unless the error was structural (which Martinez does not

argue here), we review errors that were not preserved by timely

objection for plain error. Hagos, ¶ 14, 288 P.3d at 120. Plain error

is “obvious and substantial.” Id. “We reverse under plain error

review only if the error ‘so undermined the fundamental fairness of

the trial itself so as to cast serious doubt on the reliability of the

judgment of conviction.’” Id. (quoting People v. Miller, 113 P.3d 743,

750 (Colo. 2005)).

2. Legal Authority

¶ 63 A trial court abuses its discretion by admitting expert

testimony under the guise of lay opinion. Stewart, 55 P.3d at 124

(“[W]here . . . an officer’s testimony is based not only on [his]

perceptions and observations of the crime scene, but also on [his]

specialized training or education, []he must be properly qualified as

an expert before offering testimony that amounts to expert

testimony.”). “[S]uch a substitution subverts the disclosure and

discovery requirements of [the rules of criminal procedure] and the

reliability requirements for expert testimony.” Id. at 123 (quoting

United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)); see

Crim. P. 16(I)(a)(1)(III) (providing that “[t]he prosecuting attorney

28 shall make available to the defense . . . [a]ny reports or statements

of experts made in connection with the particular case”).

¶ 64 In Venalonzo, the supreme court discussed the distinction

between lay and expert testimony, explaining that

[t]ogether, CRE 701 and 702 distinguish lay testimony from expert testimony. CRE 701 defines the scope of lay witness opinion testimony. It provides that lay witness testimony in the form of opinions or inferences must be “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [CRE] 702.” CRE 702, on the other hand, concerns the admissibility of expert testimony. Under this rule, “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

¶ 18, 388 P.3d at 874 (citation omitted); see CRE 701 & 702.

¶ 65 The Venalonzo court held that, “in determining whether

testimony is lay testimony under CRE 701 or expert testimony

under CRE 702, the trial court must look to the basis for the

opinion.” Venalonzo, ¶ 23, 388 P.3d at 875. A witness offers lay

29 testimony if the testimony “could be expected to be based on an

ordinary person’s experiences or knowledge,” while a witness offers

expert testimony if the testimony “could not be offered without

specialized experiences, knowledge, or training.” Id. This inquiry

“depends on the facts and surrounding circumstances of the case

and ‘requires a case-by-case analysis of both the witness and the

witness’s opinion.’” Id. at ¶ 17, 388 P.3d at 874 (quoting United

States v. Smith, 591 F.3d 974, 982-83 (8th Cir. 2010)).

3. The District Court Erred by Allowing the Detective to Present Expert Testimony

¶ 66 Martinez’s counsel filed a pretrial motion requesting the

disclosure of the prosecution’s expert witnesses under Rule

16(I)(a)(1)(III). The prosecutor did not endorse the detective as an

expert witness.

¶ 67 The detective began his testimony by summarizing his

background, training, and experience, stating that he

• “went through a six-month police academy”;

• “worked in the patrol division . . . for approximately seven

years”;

30 • contacted “hundreds” of intoxicated people while

working;

• received on-the-job training and “continuing education”

classes;

• had worked as a sex crimes detective for over four years;

• took part in “special training” to learn how to investigate

sexual assaults; and

• had investigated “close to 500” sex assault cases in his

career.

Despite this testimony regarding the detective’s background,

training, and experience, the prosecutor did not seek to qualify him

as an expert witness.

¶ 68 After testifying about his investigation of A.R.’s case, the

detective responded to a question about A.R.’s demeanor: “she went

through different phases, like most people do . . . .” He added that,

based on his interviews of “a fair number of victims,” A.R.’s

response was not “surprising.”

¶ 69 The following exchange occurred later during the detective’s

examination:

31 [PROSECUTOR:] Now, you said earlier you’ve been involved in about 500 sex assault investigations. In your training and experience, is it usual for a victim of a sex assault to not have significant physical injuries?

[DETECTIVE:] No. Again, much like reactions, depending on the circumstances of the sexual assault, we don’t expect to see, necessarily, injuries, unless there’s an indication that there was some sort of physical attack, as well.

Again, depending upon the circumstances . . . when we talk about things like what would commonly be referred to as “date rape” or situations like that, or circumstances in which people are what’s labeled “victim incapable” . . . where they’re inebriated or drugged or something to that effect, you’re not necessarily going to see an injury. There’s no expectation for that one way or the other.

[PROSECUTOR:] Okay. And specifically on those “victim incapable” cases you talked about, where the victim was too intoxicated, is it your experience that there would be little or no injury?

[DETECTIVE:] Generally speaking, there wouldn’t be, because they’re not in a position to offer any kind of physical resistance.

¶ 70 We conclude that the detective’s opinions amounted to

impermissible expert testimony because such testimony “could not

be offered without specialized experiences, knowledge, or training.”

32 Id. at ¶ 23, 388 P.3d at 875. An “ordinary person” does not possess

the requisite “experiences or knowledge” to testify about the type or

extent of injuries resulting from a sexual assault or the victim’s

demeanor during a police interview following a sexual assault. See,

e.g., State v. Fortin, 917 A.2d 746, 757 (N.J. 2007) (“We do not

presume that the ordinary juror would have knowledge of the

typical injuries inflicted during a . . . sexual assault.”); see also

People v. Rincon, 140 P.3d 976, 983 (Colo. App. 2005) (holding that

an officer may testify as a lay witness about topics that may be

resolved by “simple common sense and logic”). Rather, a person

could be expected to possess this information only if he or she had

been specially trained or otherwise had experience with sexual

assaults; under these circumstances, “common sense and logic” do

not provide answers to the prosecutor’s questions.

¶ 71 Indeed, immediately before the detective testified about these

topics, the prosecutor emphasized the detective’s specialized

training and experience. The detective then compared his

observations regarding A.R.’s case to his experience with the

hundreds of other sexual assault cases he had investigated. See

People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011) (“[E]xperts may

33 testify concerning whether a victim’s behavior or demeanor is

consistent with the typical behavior of victims of abuse.”). Given

that the detective could have gathered the information supporting

his testimony only through his “specialized experiences, knowledge,

[and] training,” he offered expert testimony. Venalonzo, ¶ 23, 388

P.3d at 875. And because the prosecutor failed to endorse the

detective as an expert witness, the detective’s testimony was

improper. See Crim. P. 16(I)(d); Stewart, 55 P.3d at 124.

¶ 72 Thus, the district court abused its discretion by permitting the

detective to testify about the injuries and demeanor that victims of

sexual assault typically display. See Williams, ¶ 21, 446 P.3d at

950 (“A trial court abuses its discretion . . . when it misapplies the

law.”).

4. The Admission of the Detective’s Testimony Did Not Constitute Plain Error

¶ 73 We review Martinez’s challenge to the detective’s testimony

under the plain error standard because Martinez’s counsel did not

make a contemporaneous objection to the testimony. See Hagos,

¶ 14, 288 P.3d at 120. In determining whether the admission of the

detective’s opinion testimony resulted in plain error, we consider

34 whether the detective was qualified to offer those opinions based on

his training and experience. See People v. Conyac, 2014 COA 8M,

¶ 67, 361 P.3d 1005, 1021; People v. Malloy, 178 P.3d 1283,

1288-89 (Colo. App. 2008); see also People v. Lomanaco, 802 P.2d

1143, 1145 (Colo. App. 1990) (holding that there was no plain error

in the admission of unendorsed expert testimony when the witness

was qualified to provide that testimony).

¶ 74 We discern no plain error for three reasons. First, the

detective was qualified to provide the opinions. Through his

investigations of “close to 500” sexual assault cases over more than

four years, the detective undoubtedly gained the experience

necessary to testify about the typical injuries of victims of sexual

assault, as well as sexual assault victims’ behavior and demeanor

during police interviews.

¶ 75 Second, the failure of Martinez’s counsel to object to the

detective’s testimony or request a continuance after the jury heard

it “belies any claim that he was surprised or prejudiced by [such]

testimony.” People v. Brown, 313 P.3d 608, 617 (Colo. App. 2011).

¶ 76 Third, as discussed in detail above, the evidence against

Martinez was overwhelming. See supra Part II.A.5; see also Miller,

35 113 P.3d at 750 (holding that a trial court’s error “does not

normally constitute plain error . . . where the record contains

overwhelming evidence of the defendant’s guilt”).

¶ 77 We therefore conclude that there was no plain error because

the district court’s failure to sua sponte exclude the detective’s

expert testimony did not “undermine[] the fundamental fairness of

the trial itself so as to cast serious doubt on the reliability of the

judgment of conviction.” Hagos, ¶ 14, 288 P.3d at 120 (quoting

Miller, 113 P.3d at 750).

D. Martinez’s Theory of Defense Instruction

¶ 78 Martinez asserts that the district court erred by refusing to

give the jury his tendered theory of defense instruction. We discern

no error.

¶ 79 We review a trial court’s decision to modify a tendered theory

of defense instruction for an abuse of discretion. People v. Bruno,

2014 COA 158, ¶ 18, 342 P.3d 587, 591; see People v. Lee, 30 P.3d

686, 689 (Colo. App. 2000) (“The trial court has substantial

discretion in the drafting of a theory of defense instruction.”).

36 ¶ 80 In analyzing whether the trial court abused its discretion, we

review the instructions as a whole to determine whether the jury

was “adequately informed of the defendant’s theory of defense.”

People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999).

¶ 81 “[A]n instruction embodying a defendant’s theory of the case

must be given by the trial court if the record contains any evidence

to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo.

1992). “A proper theory of the case instruction should explain a

defendant’s view of what the evidence shows, must be general and

brief, and must instruct the jury on the legal effect of the

explanation.” People v. Meads, 58 P.3d 1137, 1138 (Colo. App.

2002), aff’d, 78 P.3d 290 (Colo. 2003).

¶ 82 A trial court may refuse to give an instruction that is

“argumentative, contains errors of law, merely reiterates portions of

the evidence, or is encompassed within the other instructions.”

Lee, 30 P.3d at 689; see Dore, 997 P.2d at 1221-22 (“The trial court

may reject a theory of the case instruction which tends to be

argumentative or calls attention to specific evidence.”). If the trial

court refuses to give an instruction, it “has an affirmative obligation

37 to cooperate with counsel to either correct the tendered theory of

the case instruction or to incorporate the substance of such in an

instruction drafted by the court.” Nunez, 841 P.2d at 265.

3. The District Court Did Not Err by Modifying Martinez’s Tendered Theory of Defense Instruction

¶ 83 Martinez’s counsel tendered the following theory of defense

instruction:

[o]n the evening of June 29, 2015 [Martinez] was hanging out, drinking alcohol and smoking marijuana in a park in lower downtown with a small group of friends. Later in the evening [A.R.] approached Mr. Martinez and his friends. [A.R.] first attempted to engage in a sexual relationship with Mr. Martinez’s friend J.K. After, she learned that he had a girlfriend and wasn’t interested in engaging in a sexual relationship with her she began speaking more exclusively with Mr. Martinez. After a period of time Mr. Martinez and [A.R.] agreed to separate from the group to engage in consensual sex. While Mr. Martinez observed some slight signs of impairment from [A.R.] there wasn’t anything about her words or physical demeanor to indicate to him that she was not fully aware of what she was saying a [sic] doing.

¶ 84 Noting that “theories of the case should not be argumentative,”

the district court declined to give Martinez’s tendered instruction.

Instead, over the objection of Martinez’s counsel, the court modified

38 the instruction to read, “[i]t is Mr. Martinez’s theory of the case that,

although he observed signs of impairment from [A.R.], [A.R.]

engaged in a consensual sexual relationship with him.”

¶ 85 The district court did not abuse its discretion by rejecting and

modifying Martinez’s theory of defense instruction. As the court

correctly noted, the final sentence in Martinez’s tendered

instruction was argumentative. Additionally, the instruction was

not “general and brief” and did not “instruct the jury on the legal

effect of the explanation.” Meads, 58 P.3d at 1138. Rather, by

focusing solely on Martinez’s testimony, the instruction “merely

reiterate[d] portions of the evidence” that were favorable to him.

Lee, 30 P.3d at 689; see Dore, 997 P.2d at 1221-22. Martinez was

not entitled to a theory of defense instruction that unduly

emphasized his trial testimony that nothing about A.R.’s actions or

demeanor indicated that she was not fully aware of her actions.

See People v. Baird, 66 P.3d 183, 194 (Colo. App. 2002) (“[A] trial

court may refuse an instruction if it . . . unduly emphasizes

particular evidence . . . .”).

¶ 86 The district court’s redrafted instruction was proper because it

excised the problematic components of Martinez’s tendered

39 instruction while providing Martinez’s theory of defense that A.R.

did not appear to be incapable of appraising the nature of her

conduct when he and A.R. had sex. The court fulfilled its obligation

under Nunez to include “the substance” of Martinez’s tendered

instruction in the final jury instruction and, thus, did not err in

doing so. 841 P.2d at 265.

E. Cumulative Error

¶ 87 Martinez asserts that the trial court’s cumulative errors

deprived him of a fair trial. We disagree.

¶ 88 The supreme court discussed the applicability of the

cumulative error doctrine in Howard-Walker v. People, explaining

that “[t]hough an error, when viewed in isolation, may be harmless

or not affect the defendant’s substantial rights, reversal will

nevertheless be required 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.’” 2019 CO

69, ¶ 24, 443 P.3d 1007, 1011 (quoting People v. Lucero, 200 Colo.

335, 344, 615 P.2d 660, 666 (1980)). The court added, “[f]or

reversal to occur based on cumulative error, a reviewing court must

identify multiple errors that collectively prejudice the substantial

40 rights of the defendant, even if any single error does not. Stated

simply, cumulative error involves cumulative prejudice.” Id. at

¶ 25, 443 P.3d at 1011 (citation omitted).

¶ 89 Here, although we identified two errors, there is no reversible

cumulative error because those errors did not substantially

prejudice Martinez’s right to a fair trial, as discussed above. See

supra Parts II.A.5, II.C.4. Even when we view the errors in

combination, given the overwhelming evidence of guilt, we cannot

conclude “that the cumulative effect of the errors substantially

prejudiced [Martinez’s] right to a fair trial.” People v. Mendenhall,

2015 COA 107M, ¶ 82, 363 P.3d 758, 775; see also Conyac, ¶ 152,

361 P.3d at 1030 (“[A]lthough we have found some errors, because

we do not perceive that they substantially prejudiced defendant’s

right to a fair trial, there is no reversible cumulative error.”).

F. SOLSA’s Constitutionality

¶ 90 In attacking the constitutionality of SOLSA, Martinez concedes

two points: divisions of this court have rejected facial challenges to

SOLSA’s constitutionality, see, e.g., People v. Lehmkuhl, 117 P.3d

98, 108 (Colo. App. 2004), and he did not advance this argument

before the district court. He nonetheless contends that SOLSA

41 violates separation of power principles and his right to due process,

right of equal protection, right against cruel and unusual

punishment, and right against self-incrimination. Martinez,

however, fails to explain how SOLSA violates his constitutional

rights and how the divisions that previously addressed this issue

erred. We therefore decline to depart from the decisions affirming

SOLSA’s constitutionality, see, e.g., People v. Sabell, 2018 COA 85,

¶ 47, 452 P.3d 91, 100, and hold that the district court did not

plainly err in sentencing Martinez under the mandates of SOLSA.

III. Conclusion

¶ 91 Martinez’s judgment of conviction is affirmed.

JUDGE NAVARRO and JUDGE TOW concur.