23CA1453 Peo v Mowers 11-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1453 Weld County District Court No. 22CR281 Honorable Meghan Patrice Saleebey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Zane Mowers,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE LUM Graham* and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 20, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Albani Law, LLC, Peter B. Albani, Denver, Colorado; Peak Legal Services, LLC, Douglas T. Cohen, Todd Narum, Northglenn, 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, Michael Zane Mowers, appeals the judgment of
conviction entered on a jury verdict finding him guilty of four
counts of sexual assault on a child (SAOC) by one in a position of
trust (POT) as a pattern of abuse (POA), and two counts of SAOC-
POA. We affirm.
I. Background
¶2 In March 2021, Mowers’ ex-girlfriend’s daughter (the victim)
informed a school counselor that Mowers had sexually abused her,
prompting an investigation by the Town of Nunn police department.
¶3 Jon Geiger — a Town of Nunn police officer and interim police
chief — was involved in the initial investigation of the victim’s
allegations. After the initial investigation, Geiger applied for an
arrest warrant, to which he attached his supporting affidavit. The
court issued the warrant, Geiger arrested Mowers in April 2021,
and Mowers was charged in Case No. 21CR737.
¶4 Shortly after Mowers’ arrest, the State of Colorado notified the
district attorney that Geiger’s Peace Officer Standards and Training
(P.O.S.T.) certification had expired on January 9, 2021— before he
had started the investigation into the victim’s allegations. Thus,
Geiger could not act (and had not acted) as a “certified peace officer”
1 when he investigated and arrested Mowers. See §§ 16-2.5-102, -
105, C.R.S. 2025 (providing that police officers are peace officers
who must be P.O.S.T. certified). Defense counsel received this
information in discovery.
¶5 Because Geiger wasn’t P.O.S.T. certified, the court determined
he had no authority to seek an arrest warrant for Mowers or arrest
him, rendering the arrest unlawful. See § 16-3-102, C.R.S. 2025
(providing for arrest by a peace officer); § 16-3-108, C.R.S. 2025
(providing conditions for issuing an arrest warrant); Kailey v.
Chambers, 261 P.3d 792, 798-99 (Colo. App. 2011) (holding that a
private citizen cannot seek an arrest warrant under section 16-3-
108).1 The court dismissed Case No. 21CR737 without prejudice
and instructed the prosecution that it could seek another arrest
warrant for Mowers if a certified peace officer reviewed the
1 We express no opinion about whether the lack of a P.O.S.T.
certification precludes an individual from seeking an arrest warrant when that individual is otherwise considered a “law enforcement officer” or “peace officer.” See Kailey v. Chambers, 261 P.3d 792, 798-99 (Colo. App. 2011) (noting that section 16-3-108, C.R.S. 2025, is silent on the qualifications of a person seeking an arrest warrant but concluding that the section doesn’t authorize “private citizens” to seek a warrant because (among other things) they don’t have the same experience, training, objectivity, or threat of employment sanctions as “law enforcement officers” do). 2 investigation evidence and provided a new affidavit. However, the
court cautioned that the affidavit shouldn’t rely on any of Geiger’s
statements.
¶6 Two days later, Jennifer Fick, an investigator at the Weld
County District Attorney’s office and a certified peace officer, filed a
new application for an arrest warrant, and the prosecution also
refiled its case against Mowers. The refiled case — Case No.
22CR281 — underlies this appeal. Mowers pleaded not guilty.
¶7 After a trial, Mowers was convicted of four counts of SAOC-
POT-POA and two counts of SAOC-POA for repeatedly sexually
assaulting the victim. He was sentenced to a term of eighteen years
to life in the custody of the department of corrections.
¶8 Mowers appeals. He contends that the trial court erred by (1)
declining to dismiss the case due to Geiger’s “unlawful” initial
investigation; (2) declining to dismiss the case as a sanction for the
prosecution’s untimely disclosure of additional information
concerning Geiger; (3) violating his right to a speedy trial; and (4)
permitting the jury to view the victim’s forensic interview.
3 II. Geiger’s Investigation
A. Additional Facts
¶9 During the initial investigation of the victim’s allegations,
Geiger, accompanied by Seargent Richard Henry, interviewed the
victim at her school. Geiger’s and Henry’s body-worn cameras
recorded the interview. Geiger also referred the victim to Life
Services for a forensic interview, which was conducted by Chris
Eisenhauer. Geiger attended the interview (though he didn’t
participate) and logged the video of the interview into evidence.
Finally, Geiger requested that Detective Paul Gesi set up and
conduct a pretext phone call between the victim and Mowers.2
¶ 10 Fick’s warrant affidavit was based on her review of “the reports
of fellow officers [and] the statements of the victim and witnesses.”
Fick also reviewed the bodycam footage of the victim’s initial
interview with Geiger, the video of her forensic interview with
Eisenhauer, and the transcript of the pretext phone call. Though
the affidavit also mentioned “personal investigation,” Fick didn’t re-
2 In sexual assault cases, a pretext phone call is a call, controlled by
law enforcement, between the victim and alleged perpetrator. The purpose of the call is to obtain incriminating statements or expose false reports. 4 interview the victim or conduct other investigation apart from
reviewing the statements, videos, and transcripts collected by
Geiger, other investigators, and Eisenhauer. After a preliminary
hearing, the court found that probable cause supported Mowers’
arrest.
¶ 11 Mowers filed multiple motions asking the court to dismiss the
case and suppress “all evidence” because the charges and the
evidence were based on Geiger’s “unlawful [and] unsanctioned”
investigation. The court denied his motions.
B. Due Process
¶ 12 Mowers first argues that Geiger’s conduct (investigating the
case despite his lapsed P.O.S.T. certification) and the prosecution’s
conduct (submitting an arrest warrant affidavit based on the
evidence collected during Geiger’s initial investigation) violated his
due process rights. Mowers doesn’t explicitly raise the outrageous
governmental conduct doctrine; however, the arguments he does
make implicate that doctrine, and we construe his arguments
accordingly.
5 1. Applicable Law
¶ 13 Colorado recognizes a due process claim for outrageous
governmental conduct. Bailey v. People, 630 P.2d 1062, 1068
(Colo. 1981). Outrageous governmental conduct “violates
fundamental fairness and is shocking to the universal sense of
justice.” People v. Medina, 51 P.3d 1006, 1011 (Colo. App. 2001).
“Instances where trial courts have found outrageous government
conduct in Colorado are vanishingly rare, and the threshold for
such a finding appears to be exceedingly high.” People v.
Burlingame, 2019 COA 17, ¶ 12. We review a trial court’s decision
denying a motion to dismiss based on outrageous governmental
conduct for an abuse of discretion. Medina, 51 P.3d at 1012.
¶ 14 Only one Colorado appellate case has upheld a finding of
outrageous governmental conduct. Compare People v. Auld, 815
P.2d 956, 958-59 (Colo. App. 1991) (holding that the prosecution’s
filing of fictitious charges against an undercover investigator posing
as a criminal defendant, designed to investigate the defense
attorney he hired, warranted dismissal because the prosecution
“perpetrated a fraud upon [the] court” and “duped” the court into
“playing an active part in the prosecutorial function of the executive
6 branch”) with Effland v. People, 240 P.3d 868, 879 (Colo. 2010)
(holding that the prosecutor did not commit outrageous
governmental conduct by telling an officer that a defendant was not
entitled to an attorney during a hospital room interrogation) and
People in Interest of M.N., 761 P.2d 1124, 1125-26, 1129-30 (Colo.
1988) (holding that a police officer did not commit outrageous
governmental conduct by encouraging a minor to purchase drugs,
providing the minor with illegal drugs, and encouraging the minor
to commit other crimes).
2. Analysis
¶ 15 We perceive no error in the trial court’s denial of Mowers’
motion to dismiss on due process grounds. While we, like the trial
court, are disturbed by Geiger’s lapsed P.O.S.T. certification, this
record contains no evidence that he deliberately deceived the victim,
her school, or the forensic interviewer.3 Likewise, the record
contains no evidence that the prosecution intended to deceive or
gain some advantage over the victim, the forensic interviewer, the
3 We express no opinion about whether Geiger knew that his
P.O.S.T. certification had lapsed. We merely note the absence of record evidence to that effect in this case. 7 court, or Mowers by having Geiger participate in the initial
investigation or by basing the second arrest warrant affidavit on the
evidence from the initial investigation. Finally, although Mowers
argues that Fick should have conducted an “independent”
investigation before filing her warrant affidavit, he doesn’t explain
how re-interviewing the victim, subjecting the victim to a second
forensic interview, or conducting a second pretext phone call4 would
have changed the outcome of the case. Cf. People v. Walker, 2022
COA 15, ¶ 17 (To establish an outrageous governmental conduct
claim based on an alleged intrusion into the attorney-client
relationship, the defendant must show (1) the government’s
objective awareness of an ongoing attorney-client relationship
between the defendant and a third party; (2) “deliberate intrusion
into that relationship”; and (3) “actual and substantial prejudice.”).5
4 We note that, while Mowers occasionally said during the pretext
call that he didn’t want to have “this conversation” over the phone and expressed concern about the victim recording the call, he didn’t admit to any wrongdoing, repeatedly denied knowing “what [the victim was] talking about,” and repeatedly said there was no “story” to get “straight.” 5 We reject Mowers’ related contention that Fick’s affidavit was
somehow unlawful or invalid because it was based on the evidence from the initial investigation rather than her “independent”
8 C. “Unlawful” and “Tainted” Investigation
1. Applicable Law
¶ 16 The United States and Colorado constitutions provide a
guarantee against unreasonable searches and seizures. U.S. Const.
amend. IV; Colo. Const. art. II, § 7. The exclusionary rule forbids
the use of evidence obtained in violation of this constitutional right
at trial. Casillas v. People, 2018 CO 78M, ¶ 19. “The rule, which
operates as a judicially created remedy, seeks to safeguard [the
right] generally through the rule’s deterrent effect.” Id. Similarly,
the “fruit of the poisonous tree” doctrine prohibits the use of
“evidence derived from information acquired by the police through
unlawful means.” People v. Lewis, 975 P.2d 160, 170 (Colo. 1999).
¶ 17 “Probable cause for an arrest warrant exists if there are
reasonable grounds to believe that the defendant participated in the
investigation. Mowers argues that section 16-3-108, requires a peace officer to sign the affidavit supporting probable cause for an arrest. See Kailey, 261 P.3d at 798-99 (holding that private citizens cannot apply for an arrest warrant under the section). Even if that’s the case, we don’t see how it invalidates Fick’s affidavit. Fick is a peace officer, and Mowers doesn’t cite any authority requiring a warrant affidavit to be based on the affiant’s firsthand investigation or an investigation commenced by a P.O.S.T. certified peace officer.
9 crime in question.” People v. Young, 987 P.2d 889, 891 (Colo. App.
1999).
¶ 18 As best we understand his arguments, Mowers first contends
that because Geiger wasn’t P.O.S.T. certified at the time he
conducted the pre-arrest investigation, all evidence he collected or
assisted in collecting — the initial interview, the forensic interview,
and the pretext phone call — was obtained “unlawfully” and must
be suppressed. However, Mowers doesn’t cite, and we can’t find,
any authority supporting the proposition that only a P.O.S.T.
certified peace officer may interview a victim, request the assistance
of a peace officer to prepare and conduct a pretext phone call, or
refer a victim for a forensic interview. Furthermore, we can’t
discern how the victim’s voluntary cooperation in two interviews
and a pretext phone call violated Mowers’ right against
unreasonable searches and seizures. Therefore, we cannot say that
the evidence was “unlawfully” obtained.
¶ 19 Next, Mowers contends that the evidence from Geiger’s initial
investigation is inherently unreliable or “tainted” due to his
10 misconduct and, therefore, cannot form the basis for probable
cause. We reject this contention, too.
¶ 20 The nature of the evidence collected during the initial
investigation eliminated any need for the prosecution or the trial
court to rely on Geiger’s subjective view of the facts when
determining whether there was probable cause to arrest Mowers.
It’s true that Geiger conducted the initial victim interview, but that
interview took place in the presence of Seargent Henry (who was
P.O.S.T. certified) and was recorded by Seargent Henry’s bodycam.
And while Geiger referred the victim for the forensic interview and
was present for it, that interview was wholly conducted by
Eisenhauer (a trained forensic interviewer) and was also video
recorded. Likewise, Geiger’s involvement in the pretext phone call
was limited to (1) requesting assistance from Detective Gesi and (2)
being present while the call took place. Detective Gesi — not Geiger
— wrote the script for the call and helped the victim conduct it.
And as the trial court noted, there’s no evidence that Geiger had
any influence over the questions that were asked during the
11 forensic interview, the script for the pretext phone call, or the
victim’s responses and behavior during either of those events.6
¶ 21 If the information in Fick’s affidavit had been based solely on
Geiger’s account of the initial interview, the forensic interview, and
the phone call, there may have been reason to question the
reliability of that information. However, Fick didn’t rely solely on
Geiger’s account. Instead, she reviewed “everything in the file”
(including the bodycam footage, the video of the forensic interview,
and the transcript of the pretext call) and “came to [her] own
conclusion” about probable cause.
¶ 22 For the above reasons, we conclude that the trial court didn’t
err by declining to dismiss this case or suppress the evidence.
6 To the extent Mowers argues that Geiger influenced the victim in
her initial interview by his use of certain sexual terms or phrases, we don’t perceive how this purported deficiency precludes the use of the evidence to determine probable cause or the admissibility of the evidence at trial. Rather, it was the proper subject of cross- examination. And indeed, defense counsel repeatedly questioned the victim and Eisenhauer about Geiger’s use of adult terminology in his interview. See infra Part V. 12 III. Untimely Disclosure Related to Geiger
¶ 23 Recognizing that Geiger would be subject to potentially
incriminating cross-examination regarding his misrepresentations
about his status as a peace officer if he were called to testify,
Mowers filed a motion to have the court advise Geiger of his Fifth
and Sixth Amendment rights and appoint him counsel. See U.S.
Const. amends. V, VI.
¶ 24 At a hearing, the court granted Mowers’ motion to appoint
advisory counsel for Geiger. Mowers asked the court whether the
jury would hear the reason why Geiger wasn’t testifying. The court
explained that if Geiger testified, the court would advise him of his
rights outside the jury’s presence and that the jury would not hear
the reason he wasn’t testifying if he invoked. The court further
explained that Mowers could elicit testimony about Geiger’s missing
P.O.S.T. certification and call attention to the fact that the
prosecution hadn’t asked him to testify.
¶ 25 Mowers subpoenaed Geiger to testify at trial. Geiger filed a
motion to quash the subpoena, explaining that he intended to
invoke his Fifth Amendment rights. Ten days before trial, the
13 parties attended a pretrial conference at which they discussed
Geiger’s motion to quash. Defense counsel indicated that he had
no objection to quashing Mowers’ subpoena based on Geiger’s
invocation. The court quashed the subpoena.
¶ 26 Later that day, the prosecution disclosed documents
indicating that their office had previously investigated Geiger for the
activities he conducted during the time when his P.O.S.T.
certification had lapsed. The investigation closed after the
investigator concluded that the documents and information
gathered indicated that Geiger believed his P.O.S.T. certification
was active when he accepted employment as a Town of Nunn police
officer.
¶ 27 Mowers filed a motion to dismiss the case based on the late
disclosure, asserting that the documents indicated that the district
attorney had “absolved” Geiger of criminal culpability and “had no
intent to charge him.” Thus, he argued, Geiger’s assertion of his
Fifth Amendment rights was a “sham.” Alternatively, he requested
that the court sanction the prosecution by permitting him to
impeach Geiger in absentia by (1) informing the jury that Geiger
wasn’t testifying because his testimony would potentially subject
14 him to criminal prosecution and (2) introducing evidence of
misconduct Geiger committed during his employment with other
police departments7 (the impeachment sanction).
¶ 28 On the first day of trial, the prosecution acknowledged that the
disclosure was untimely and clarified that it had not offered and
would not offer Geiger immunity related to the P.O.S.T. certification
issue.
¶ 29 The court denied Mowers’ motion to dismiss and declined to
impose the impeachment sanction. While expressing frustration
with the prosecution for its lack of diligence, the court concluded
that (1) the untimely disclosure wasn’t the result of bad faith and
(2) Geiger would still be able to assert a Fifth Amendment privilege
if he were called to testify. However, the court reiterated that
Mowers could call witnesses to testify that Geiger wasn’t P.O.S.T.
certified; that he wasn’t acting as a peace officer during the
7 Geiger was terminated from the police department of Ellis,
Kansas, for falsifying testimony in court. He was also involuntarily discharged from the Del Norte police department after an investigation regarding his credibility during a drug investigation. Finally, Geiger was convicted for harassing a suspect during his time as a Georgetown police officer.
15 investigation; and that there had been an investigation into his
misrepresentation of his peace officer status. It also agreed to
instruct the jury about Geiger’s P.O.S.T. certification status.
B. Applicable Law and Standard of Review
¶ 30 “A prosecutor is legally and ethically obligated to disclose to a
criminal defendant evidence or information . . . that is favorable to
the defendant and material to either guilt or punishment, including
exculpatory and impeaching evidence.” People v. Herrera, 2012
COA 13, ¶ 16. In the event of a discovery violation, “the decision
whether to impose a sanction is within the sound discretion of the
trial court.” People v. Lee, 18 P.3d 192, 196 (Colo. 2001). A court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair. Id.
¶ 31 When considering whether to impose a sanction, the trial
court must exercise its discretion “with due regard for the purposes
of the discovery rules themselves and the manner in which those
purposes can be furthered by discovery sanctions.” Id. A court
must consider (1) the reason for the delay in providing the
discovery; (2) any prejudice the defendant has suffered as a result
16 of the delay; and (3) the feasibility of curing such prejudice by way
of a continuance. Id.
¶ 32 “Under certain circumstances, the exclusion of evidence or
even complete dismissal can be proper remedies to assure
compliance with discovery orders.” Id. However, “[d]ismissal is a
drastic sanction and must be reserved for situations where no other
sanction will ‘restore as nearly as possible the level playing field
that existed before the discovery violation.’” People v. Daley, 97
P.3d 295, 298 (Colo. App. 2004) (quoting People v. Dist. Ct., 808
P.2d 831, 837 (Colo. 1991)).
C. Analysis
¶ 33 Mowers argues that the trial court erred by denying the
motion to dismiss and declining to impose the impeachment
sanction. We disagree.
¶ 34 The trial court concluded, and the People don’t dispute, that
the failure to timely disclose the records of the district attorney’s
investigation was a discovery violation. But Mowers doesn’t explain
how he was prejudiced by the delay. As we understand his briefing,
Mowers asserts he was harmed because the court precluded
Geiger’s testimony due to Geiger’s invocation of his Fifth
17 Amendment rights. However, the district attorney’s decision to
“close” the investigation (and the late disclosure of records
regarding the closure) had no effect on Geiger’s ability to invoke his
rights because the district attorney didn’t extend immunity to him.
In other words, Mowers was in the same position that he would
have been in if he had timely received the records. Because Mowers
wasn’t prejudiced by the late disclosure, the court didn’t abuse its
discretion by not dismissing the case or imposing the impeachment
sanction.
¶ 35 Mowers also contends that the court erred by not dismissing
the case as a sanction for cumulative discovery violations.
Specifically, he argues that the prosecution (1) failed to preserve the
victim’s initial written statement and didn’t disclose that the
statement once existed until just before the preliminary hearing; (2)
failed to disclose records from the Department of Human Services
(DHS) until late October 2022; and (3) failed to disclose that it
advised the victim’s mother to object to being deposed in a custody
proceeding involving the victim’s half-sister.
¶ 36 Mowers received the information about the victim’s initial
written statement in March 2022, the information about the DHS
18 records in October 2022, and the information about the victim’s
mother no later than November 2022. We assume, without
deciding, that these disclosures were both required and untimely.
However, any prejudice from the untimely disclosure was largely
cured because Mowers’ trial took place in April 2023. We therefore
perceive no abuse of discretion.
IV. Speedy Trial
¶ 37 Mowers contends that the trial court violated his speedy trial
rights by granting two trial continuances at the prosecution’s
request. We disagree.
A. Applicable Law and Standard of Review
¶ 38 Section 18-1-405, C.R.S. 2025 requires that a defendant be
brought to trial within six months of his plea of not guilty. Sweet v.
Myers, 612 P.2d 75, 77 (Colo. 1980). Generally, when a trial is not
brought within this period, the court must dismiss the charges
against the defendant. People v. Valles, 2013 COA 84, ¶ 29; § 18-1-
405(1).
¶ 39 However, subsection (6) of the statute contains exceptions. §
18-1-405(6). As relevant here, an additional delay of up to six
months is allowed if the prosecution requests a continuance and
19 demonstrates that (1) material evidence is unavailable; (2) the
prosecution exercised due diligence to obtain the evidence; and (3)
there are reasonable grounds to believe the evidence will be
available on the date to which the trial is sought to be continued. §
18-1-405(6)(g)(I); People v. Scialabba, 55 P.3d 207, 209 (Colo. App.
2002). Thus, if all three elements are met, the duration of the
continuance is excludable from the speedy trial period. § 18-1-
405(6)(g)(I); Snyder v. Moss, 703 P.2d 1311, 1314 (Colo. App. 1985).
¶ 40 Evidence is material if it is “more than merely probative or
relevant.” Valles, ¶ 33 (quoting People v. Roberts, 146 P.3d 589,
595 (Colo. 2006)). However, the evidence need not be indispensable
to justify a reasonable delay. Id.
¶ 41 A trial court’s grant of a continuance under section 18-1-
405(6)(g)(I) is reviewed for an abuse of discretion. Valles, ¶ 21;
People v. Wolfe, 9 P.3d 1137, 1142-43 (Colo. App. 1999). A court
abuses its discretion if its decision is manifestly arbitrary,
unreasonable or unfair. People v. Ibarra, 849 P.2d 33, 38 (Colo.
1993). When assessing a trial court’s decision to grant a
continuance, the reviewing court “look[s] to facts as they were
20 known at the time of the trial court’s decision.” Roberts, 146 P.3d
at 594.
B. Discussion
¶ 42 Mowers contends that the trial court erred by granting two
prosecution-requested continuances. We address each continuance
in turn.
1. Eisenhauer Continuance
¶ 43 Mowers’ original speedy trial deadline was December 7, 2022.
The court set a five-day trial beginning on October 31, 2022. The
prosecution subpoenaed Eisenhauer, the forensic interviewer, to
testify. About a month before trial, the prosecution requested a
continuance because Eisenhauer, after receiving the subpoena,
informed them that she would be out of the country during the
week of trial.
¶ 44 At a hearing on the motion, the court concluded that (1)
Eisenhauer was unavailable; (2) the prosecution exercised due
diligence in attempting to secure her attendance at trial by serving
her a subpoena and following up via email; and (3) that she was
material to the prosecution’s case. The court granted the
21 continuance over Mowers’ objection and reset the trial for February
21, 2023.
b. Analysis
¶ 45 Mowers first contends that the trial court abused its discretion
by concluding that Eisenhauer’s testimony was material. We
disagree.
¶ 46 At the time the trial court made its decision, the court was
aware that defense counsel had endorsed expert witnesses to testify
in the areas of memory, suggestibility, confabulation, manipulation
of a child’s memories, and whether recollection of certain memories
was reliable. Thus, the court reasoned, the defense’s experts might
challenge the victim’s interviews and Eisenhauer’s methodology.
The prosecution had also endorsed Eisenhauer as an expert witness
in the field of forensic interviewing. Additionally, as the court
noted, the integrity of the forensic interview took on heightened
importance because of the concerns regarding Geiger’s involvement
in the initial victim interview. Given these circumstances, the court
didn’t abuse its discretion by concluding that Eisenhauer’s
testimony was material. See Valles, ¶ 33.
22 ¶ 47 To the extent Mowers contends that the court abused its
discretion by concluding that Eisenhauer was unavailable, we also
disagree. As best we can discern, Mowers contends that the court
erred because the prosecution gave inconsistent information about
the date of Eisenhauer’s return to the country, at first stating she
wouldn’t be back until November 4, then November 8 or 9, and then
finally November 5. However, the record reflects that any
inconsistency was due to the prosecution receiving new information
and communicating that information to the court in real time
during the continuance hearing. (During much of the hearing,
Eisenhauer was occupied with a forensic interview). And in any
event, given that Eisenhauer expected to return on November 5, she
would be out of the country for all five days of the trial.
2. Fick Continuance
¶ 48 Just before jury selection on the first day of the reset trial
(February 21, 2023), the prosecution informed the court that Fick,
their advisory witness, had become unavailable due to the sudden
hospitalization of her child. The prosecution sought a continuance
due to Fick’s unavailability, and the court granted it over Mowers’
23 objection. The court said it would attempt to work with the parties
to reset the trial within the speedy trial deadline, but it also
concluded that it could reset the trial outside the speedy trial
deadline under section 18-1-405(6)(g)(I).8 Mowers moved to
dismiss, arguing that the continuance violated (or improperly
compelled him to waive) his speedy trial rights. The court denied
his motion. After scheduling discussions, trial was reset to April
24, 2023.
¶ 49 Mowers first contends that the trial court abused its discretion
by concluding that Fick was unavailable. We disagree.
¶ 50 Mowers argues that the prosecution didn’t clearly articulate
and was “unsure” about the “time, the length and details” of Fick’s
unavailability beyond “the first day of jury selection.” The record
belies that assertion. After initially informing the court that Fick’s
child had been hospitalized, the prosecutor indicated that she didn’t
yet have any details regarding Fick’s availability for the remainder
8 There appears to have been significant confusion about the effect
of an “unavailability” continuance on the speedy trial deadline. However, because we conclude that the court didn’t err by granting either continuance, this issue doesn’t affect our analysis. 24 of the trial period. But later in the hearing, the prosecutor
explained that “moments ago,” she learned that hospital staff
informed Fick that her child would be in the hospital “at least”
through the end of that week. The court didn’t abuse its discretion
by concluding that Fick was unavailable. To the extent Mowers
suggests that Fick could have been available virtually, the court
also didn’t abuse its discretion by declining to compel Fick to “pay
attention on Webex” while her child was in the hospital receiving
treatment.
¶ 51 Next, Mowers argues that Fick’s potential testimony wasn’t
material. We reject this contention, too. At the time of the
continuance, the court was aware that Fick had interviewed many
of the prosecution’s witnesses, been present for the forensic
interview of the victim’s half-sister, and taken photographs for
evidence. Most importantly, Fick had requested the arrest warrant
and submitted the supporting affidavit after the prior case was
dismissed. As the court noted, her actions (or lack thereof) related
to the warrant and affidavit had “been the subject of more than one
proceeding” and were the source of “extreme, high contention
between the parties.” Under these circumstances, we conclude that
25 the court didn’t abuse its discretion by determining that Fick was
material to the prosecution’s case. People v. Rhea, 2014 COA 60, ¶
58 (noting that, under the abuse of discretion standard, the test is
whether the trial court’s decision fell within a range of reasonable
options, not whether we would reach a different result). (To the
extent Mowers argues otherwise based on Fick’s trial testimony, we
aren’t persuaded. We must evaluate the trial court’s decision based
on the circumstances before it at the time it granted the
continuance. Roberts, 146 P.3d at 594.).
3. Conclusion
¶ 52 In summary, both the Eisenhauer and the Fick continuances
fell within the exception provided by section 18-1-405(6)(g)(I). Thus,
the duration of both continuances — from October 31, 2022 to
February 21, 2023 and from February 21, 2023 to April 24, 2023 —
was excludable from the speedy trial period. § 18-1-405(6)(g)(I);
Snyder, 703 P.2d at 1314. Accordingly, we conclude that Mowers’
speedy trial rights weren’t violated.9
9 We don’t address Mowers’ constitutional right to speedy trial
because he provides a developed constitutional argument for the first time in his reply brief. People v. Boles, 280 P.3d 55, 61 n.4
26 V. The Victim’s Forensic Interview
¶ 53 Mowers next contends that the trial court erred by admitting
and publishing to the jury almost the entirety of the victim’s
forensic interview. We discern no error.
¶ 54 Prior consistent statements are admissible to rehabilitate a
child sex assault victim when their credibility has been attacked.
People v. Eppens, 979 P.2d 14, 21 (Colo. 1999). When the victim’s
testimony is attacked solely based on “specific facts,” “only prior
consistent statements regarding those specific facts are relevant
and admissible.” People v. Elie, 148 P.3d 359, 362 (Colo. App.
2006). However, when “the impeachment is general and not limited
to specific facts . . . the jury should have access to all the relevant
facts, including consistent and inconsistent statements.” Id.
¶ 55 When a child victim’s credibility is broadly attacked, the
victim’s forensic interview may be admitted to provide the jury with
(Colo. App. 2011) (declining to address an argument raised for the first time in a reply brief); see also In re Marriage of Dean, 2017 COA 51, ¶ 31 (noting that we do not consider arguments made for the first time in a reply brief “or those that seek to expand upon the contentions . . . raised in [the] opening brief”). 27 a complete picture of the victim’s credibility and place the testimony
in context. Eppens, 979 P.2d at 22; see also People v. Miranda,
2014 COA 102, ¶¶ 2, 20 (admission of entire recorded interview was
proper because defendant broadly attacked victim’s credibility).
¶ 56 A trial court has substantial discretion in deciding questions
concerning the admissibility of evidence. See Ibarra, 849 P.2d at
38. “Deciding what constitutes general impeachment is [also]
vested in the trial court’s discretion.” Miranda, ¶ 17. A court
abuses its discretion if its decision is manifestly unreasonable,
arbitrary, or unfair. Ibarra, 849 P.2d at 38.
B. Additional Facts
¶ 57 Before trial, the prosecution moved to admit the victim’s
forensic interview into evidence, and the defense objected. The
court reserved its ruling regarding the interview’s admission until
trial.
¶ 58 During trial, the defense advanced several direct and indirect
attacks on the victim’s credibility:
• In its opening statement, defense counsel suggested that
the victim was convincing when telling lies because she
28 did a “good job calling . . . Mowers and saying things to
him that weren’t true.”
• Defense counsel extensively cross-examined the victim
about multiple instances of text message and in person
contact between the victim and Mowers that sometimes
showed affection and didn’t include sexual contact. After
each instance, defense counsel highlighted that Mowers
wasn’t “inappropriate” in his response to or contact with
the victim.
• During cross-examination, defense counsel suggested
that the victim had a motive to lie about the sexual
assaults by asking the victim about her disdain for
Mowers, specifically highlighting that the victim thought
Mowers was an “a**hole” because he harmed her mother.
• Defense counsel’s opening statement and cross-
examination of the victim suggested that Geiger’s use of
sexually charged words and phrases during the initial
interview influenced the victim’s later statements in the
forensic interview.
29 • Similarly, defense counsel asked Eisenhauer whether she
had watched Geiger’s interview with the victim prior to
conducting the forensic interview (she hadn’t) and asked
about the steps she typically took to guard against
“suggestibility” when interviewing child sexual assault
victims.
• Defense counsel attempted to undermine the statements
the victim gave to Geiger by questioning the victim’s
school counselor (who was present during the initial
interview) and Eisenhauer about whether they were
aware that Geiger wasn’t a certified peace officer when
working with him.
• Defense counsel questioned Suvi Miller, the clinical social
worker and therapist who worked with the victim, about
the victim’s mental health.
• Defense counsel asked Detective Gesi whether he was
aware if the victim had “anxiety issues” and whether he
knew that the victim had asked Mowers to gift her a
truck and regarded Mowers as her “best friend.”
30 ¶ 59 Later during trial, the court allowed a substantial portion of
the interview to be played for the jury because it concluded that
defense counsel had attacked the victim’s credibility “generally” and
that the forensic interview would help give the jury a complete
picture of her statements.10 But the court provided a limiting
instruction informing the jury that they could consider the forensic
interview “only as it goes to credibility.”
¶ 60 Based on the record, the court didn’t abuse its discretion by
concluding that defense counsel attacked the victim’s credibility
broadly, instead of focusing on “specific facts,” because defense
counsel suggested that (1) the victim had a motive to lie about the
sexual assaults; (2) the victim was good at misleading Mowers
during the pretext call; (3) the victim’s allegations were heavily
influenced by Geiger’s use of certain terminology during the initial
interview; (4) the nature of Mowers’ relationship with the victim was
different than that portrayed in her allegations; and (5) the victim
10 The court redacted approximately the first two minutes of the
interview because it was “dead air.”
31 had mental health problems. Elie, 148 P.3d at 362. Accordingly,
the court didn’t abuse its discretion by playing the interview for the
jury and providing an appropriate limiting instruction. Eppens, 979
P.2d at 22.
VI. Disposition
¶ 61 Judgment affirmed.
JUDGE GRAHAM and JUDGE BERGER concur.