Peo v. Rios

Opinion

23CA1934 Peo v Rios 07-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1934 Jefferson County District Court No. 22CR101 Honorable Christopher Zenisek, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason Rios,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE SULLIVAN Pawar and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jason Rios, appeals the judgment of conviction

entered on a jury verdict finding him guilty of multiple counts of

sexual assault on a child. We affirm.

I. Background

¶2 Rios was the victim’s legal guardian. In January 2022, when

the victim was fifteen years old, she reported to law enforcement

that Rios had been sexually assaulting her for the past two years.

¶3 The prosecution charged Rios with five counts of sexual

assault on a child. Rios’s defense was that the victim fabricated her

allegations.

¶4 After trial, at which the victim testified, the jury found Rios

guilty on all charges. The district court merged two charges that

related to the same incident and then entered a judgment of

conviction on the remaining four charges. The court sentenced Rios

to twenty-four years to life in the custody of the Department of

Corrections.

II. Discussion

¶5 On appeal, Rios contends the district court reversibly erred by

(1) excluding a TikTok video that the victim posted online and

(2) permitting the prosecutor to make an improper “golden rule”

1 argument during voir dire. He also contends that the cumulative

impact of the court’s errors requires reversal. We address and

reject each contention in turn.

A. TikTok Video

¶6 Rios first contends that the district court abused its discretion

by excluding a TikTok video that the victim created, arguing the

video was admissible as a prior inconsistent statement under

section 16-10-201, C.R.S. 2025.

1. Standard of Review and Applicable Law

¶7 We review a district court’s exclusion of a witness’s prior

inconsistent statement for an abuse of discretion. People v. Salas,

2017 COA 63, ¶ 30. A court abuses its discretion when its decision

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

misconstrues the law. Id. But if the appellant doesn’t preserve

their contention in the district court, we reverse only if the court

committed plain error. Id. at ¶ 32. Plain error is error that is both

obvious and substantial. People v. Burdette, 2024 COA 38, ¶ 32.

To meet this standard, the error must so undermine the trial’s

fundamental fairness as to cast serious doubt on the reliability of

the judgment of conviction. Hoggard v. People, 2020 CO 54, ¶ 13.

2 ¶8 Section 16-10-201 permits a party to introduce a witness’s

prior inconsistent statement if certain foundation requirements are

met. The statute provides:

(1) Where a witness in a criminal trial has made a previous statement inconsistent with [their] testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which [their] testimony and the inconsistent statement relate, if:

(a) The witness, while testifying, was given an opportunity to explain or deny the statement or the witness is still available to give further testimony in the trial; and

(b) The previous inconsistent statement purports to relate to a matter within the witness’s own knowledge.

§ 16-10-201.

¶9 Provided that the statement’s proponent satisfies the statute’s

foundation requirements, they may prove the prior inconsistent

statement by any “otherwise competent extrinsic evidence.”

Montoya v. People, 740 P.2d 992, 998 (Colo. 1987). But, as with all

evidence, the district court may exclude extrinsic evidence of a

witness’s prior inconsistent statement if the evidence is otherwise

3 inadmissible, rendering it “incompetent” under section 16-10-201

to prove the statement’s substance. People v. Saiz, 32 P.3d 441,

445-46 (Colo. 2001).

¶ 10 In Saiz, for example, the supreme court upheld a district

court’s exclusion under CRE 403 of a videotaped interview

containing a witness’s prior inconsistent statements. Id. at 450-51;

see CRE 403 (a district court may exclude relevant evidence if its

probative value is substantially outweighed by the danger of, among

other things, “needless presentation of cumulative evidence”). The

supreme court explained, among other things, that the witness’s

prior inconsistent statements had already been established by a law

enforcement officer’s uncontested testimony, rendering the video

“clearly cumulative.” Saiz, 32 P.3d at 448. The video’s proponent

hadn’t argued that the recording contained different statements

than those elicited from the officer or that the witness’s demeanor

in the video would have altered the statements’ meaning. Id. at

447. To the contrary, the video’s proponent offered the videotaped

statements solely to impeach the witness. Id.

¶ 11 Divisions of this court have leaned on Saiz to reach similar

conclusions under section 16-10-201. Salas is illustrative. There,

4 the division relied on Saiz to uphold the district court’s exclusion of

a videotaped interview that contained a witness’s prior inconsistent

statements. See Salas, ¶¶ 33-38. The division explained that

“defense counsel sufficiently confronted [the witness] with her

inconsistent statements and she either explained or conceded

them.” Id. at ¶ 36. And, as in Saiz, the video’s proponent didn’t

assert that anything in the videotaped interview would differ from

the evidence elicited through testimony. Id. at ¶ 38.

2. Additional Background

¶ 12 At some point before trial, the victim posted a six-second

TikTok video online that featured her looking at the camera with

music and text overlaid. She had a neutral facial expression at the

beginning of the video, and the text said “[heart emoji]: people

always lie to me I hate it.” After a couple seconds, the victim

started smiling and the text changed to say, “[brain emoji]: you do

the same you just don’t get caught.”

¶ 13 During cross-examination, defense counsel asked the victim if

she “sometimes say[s] untruthful things.” The victim answered,

“No.” Defense counsel then showed the victim the TikTok video and

asked whether she recognized it. The victim responded

5 affirmatively and confirmed that it was a fair and accurate

representation of a TikTok video that she had created.

¶ 14 Defense counsel moved to admit the TikTok video, but the

prosecution objected under CRE 402, CRE 403, and CRE 404.

Defense counsel first argued that the video was admissible under

CRE 803(3) as a statement of the victim’s then-existing state of

mind that showed she “lies and gets away with it,” which counsel

also said implicated the victim’s credibility. The court expressed

concern that the video was inadmissible under CRE 608(b), which

prohibits introducing extrinsic evidence of specific instances of a

witness’s conduct to attack their credibility. The court therefore

excluded the video but permitted defense counsel to confront the

victim about the video and its statements. See CRE 608(b) (a court

may, in its discretion, allow counsel to inquire into a witness’s

specific instances of conduct if that conduct is probative of the

witness’s truthfulness).

¶ 15 Defense counsel then asked the victim whether she agreed

that she “published a TikTok video that indicated, quote, ‘People

always lie to me. I hate it. Brain emoji. You do the same thing,

you just don’t get caught[]’?” The victim responded, “Yes.”

6 ¶ 16 After defense counsel finished cross-examining the victim, the

court posed a question from a juror: “In the TikTok, did the TikTok

say, ‘You do the same thing, you just don’t get caught,’ or, ‘I do the

same thing, I just don’t get caught[]’?” The victim responded, “I

said, ‘I do the same thing, I just don’t get caught.’ Or — no. It

says, ‘You do the same thing.’”

¶ 17 During the prosecution’s redirect, the prosecutor attempted to

clarify with the victim that she didn’t intend to convey through the

TikTok video that she was a liar:

[PROSECUTOR]: And[], can you clarify again what you had just said.

[VICTIM]: That the TikTok says, “You do the same thing, you just don’t get caught.”

[PROSECUTOR]: Okay. So it did not say ‘I’ in there?

[VICTIM]: Yeah.

[PROSECUTOR]: And along the lines of that, in there, there was the big brain emoji. What does that mean?

[VICTIM]: Like, thinking in your head. I don’t know.

[PROSECUTOR]: Where have you seen that before?

7 [VICTIM]: It was, like, a trend on TikTok; so I just, like, followed the trend on TikTok. The video didn’t really mean, like, anything.

[PROSECUTOR]: Was it, like, the big brain emoji?

[PROSECUTOR]: Were you broadcasting to the world that you are a liar?

[VICTIM]: No.

¶ 18 Defense counsel later returned to the TikTok video on recross-

examination of the victim, asking the following questions:

[DEFENSE COUNSEL]: . . . . I want to talk to you about the meme format that was going around for a minute. Would you agree with me that the meme format was, “My heart says, and my brain says.”?

[DEFENSE COUNSEL]: No. Okay. So the photograph of a heart, what does that mean? In this meme format, what does it mean?

[VICTIM]: Yeah. It’s like a — a heart, my heart.

[DEFENSE COUNSEL]: Like, “My heart says[]”?

[DEFENSE COUNSEL]: Okay. So you’re saying, “My heart says people always lie to me. I hate it.” Right?

8 [DEFENSE COUNSEL]: And then the second part of that is, “My brain says,” right?

[DEFENSE COUNSEL]: And you’re saying, “My brain says you do the same, you just don’t get caught[]”?

[VICTIM]: Yes.

¶ 19 After the close of evidence, defense counsel began and ended

her closing argument by using the victim’s statements in the TikTok

video to attack her credibility.

3. Preservation

¶ 20 The People contend that Rios didn’t preserve his argument

that the district court erred under section 16-10-201 by excluding

the TikTok video. They therefore contend that we should review

this contention for plain error only. See Salas, ¶ 32.

¶ 21 To preserve an argument for appeal, a party must object with

sufficient specificity to draw the district court’s attention to the

alleged error. People v. Cooley, 2020 COA 101, ¶ 24. A party hasn’t

preserved an argument if, on appeal, they object on grounds

different than those raised before the district court. See People v.

Ujaama, 2012 COA 36, ¶ 37.

9 ¶ 22 While defense counsel argued that the district court should

admit the video under CRE 608 and CRE 803(3), counsel never

argued for the video’s admissibility under section 16-10-201. We

therefore agree with the People that Rios didn’t preserve his

argument under the statute, limiting our review to plain error. See

Ujaama, ¶¶ 37-38.

4. Analysis

¶ 23 For purposes of our analysis, we will assume without deciding

that the TikTok video meets section 16-10-201’s foundation

requirements. See § 16-10-201(1)(a)-(b). Even so, we can’t

conclude that the district court abused its discretion, let alone

plainly so, by excluding the video.

¶ 24 As in Saiz and Salas, defense counsel confronted the victim

about the statements she made in the video, and the victim

admitted to making them. See Saiz, 32 P.3d at 447-48; Salas, ¶ 38.

While the victim testified that she wasn’t broadcasting to the world

that she was a liar, she admitted that she stated in the video that

her brain says, “You do the same thing” — always lie — “you just

don’t get caught.” Defense counsel repeatedly highlighted that

statement in closing argument.

10 ¶ 25 Further, defense counsel didn’t offer a reason for introducing

the video beyond impeaching the victim’s credibility. See Saiz, 32

P.3d at 447; Salas, ¶ 38. Nor did defense counsel argue that the

video would alter the statement’s meaning. See Saiz, 32 P.3d at

447; Salas, ¶ 38. And even if the video may have provided some

incremental context, we can’t say on this record that shielding the

jury from that context amounted to plain error. See Saiz, 32 P.3d

at 448 (“Depending upon the particular circumstances of the case,

including the other admitted or available evidence, the nature and

import of nonverbal activity depicted on the tape, and the material

purpose for which the tape is offered, the ‘marginal’ or ‘incremental’

probative value of the tape may be minimal or nonexistent.”).

¶ 26 Accordingly, the district court didn’t abuse its discretion by

excluding the TikTok video.

B. Golden Rule Argument

¶ 27 Rios also contends that the district court erred by overruling

his objection to the prosecutor’s so-called golden rule questioning

during voir dire of the prospective jurors. Specifically, Rios argues

that the prosecutor committed prosecutorial misconduct by asking

prospective jurors to place themselves in the victim’s shoes.

11 1. Standard of Review and Applicable Law

¶ 28 We review prosecutorial misconduct claims using a two-step

framework. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

“First, [we] must determine whether the prosecutor’s questionable

conduct was improper based on the totality of the circumstances

and, second, whether such actions warrant reversal according to

the proper standard of review.” Id. We review a district court’s

conclusion at the first step for an abuse of discretion. People v.

Carter, 2015 COA 24M-2, ¶ 63.

¶ 29 During voir dire, counsel may question prospective jurors to

unearth any bias that may prevent a juror from being fair and

impartial. See People v. Garcia, 2022 COA 144, ¶ 18. But counsel

may not make a “golden rule” argument by asking jurors to imagine

themselves in the victim’s place; such arguments are improper in a

criminal case outside of the capital sentencing context. See People

v. Dunlap, 124 P.3d 780, 809 (Colo. App. 2004). A “true” golden

rule argument invites jurors to place themselves in the victim’s

shoes and “imagine that the defendant wronged them personally.”

People v. Randell, 2012 COA 108, ¶ 92. Golden rule arguments are

improper because they appeal to jurors’ sympathy for the victim

12 and may “incite jurors to reach a verdict on the basis of bias or

prejudice.” People v. Manyik, 2016 COA 42, ¶ 28 (citation omitted);

see Randell, ¶ 92.

¶ 30 The prosecutor began her voir dire of the prospective jurors by

asking about the discomfort that comes with sharing one’s sexual

experiences with a group of strangers:

And so I want everyone to close their eyes. Now I want everyone to imagine a sexual experience. It can be most recent, can be older. I want you to think about the details of that. Does everyone have it? All right. Go ahead and open your eyes. [Juror H], I want you to tell the group about that sexual experience in great detail.

¶ 31 The prosecutor also asked the prospective jurors whether

speaking about the experience in front of a “whole group of

strangers” added to the discomfort. The venire members offered a

range of responses. One member, for example, said they would be

nervous, while another said they would feel empathy toward others’

discomfort. One stated that sharing their sexual experience with a

group of strangers would be “less bad” because they would never

see the group again.

13 ¶ 32 The prosecutor then asked Juror S, “[H]ow do you think that a

young child or a teenager would feel about having to talk about a

sexual experience?” Defense counsel objected, arguing the

prosecutor was making an improper “golden rule” argument by

asking the prospective jurors to place themselves in the victim’s

shoes. The court overruled the objection, finding that the

prosecutor’s question wasn’t improper because she had asked only

how the prospective juror would expect a child or teenager to

describe a sexual experience; she didn’t ask the juror to place

themself in the victim’s shoes.

¶ 33 The prosecutor then continued:

[PROSECUTOR]: All right. You can answer. Do you remember my question?

[JUROR S]: Was it whether how a young person would feel if they had to explain it? I am sure they would be terrified.

[PROSECUTOR]: Why?

[JUROR S]: Well, I think to kind of bound off of what I think [Juror H] said: Yeah, there’s a pretty teratical(ph) viewpoint about sex in the U.S. So it’s pretty taboo to discuss it publicly.

[PROSECUTOR]: How many people agree with [Juror H] and [Juror S], you agree that would be hard to talk about as a younger teenager? Show of hands.

14 ¶ 34 The record doesn’t reveal how many or which prospective

jurors raised their hands.

3. Analysis

¶ 35 We conclude, under Wend’s first step, that the district court

didn’t abuse its discretion by overruling Rios’s objection to the

prosecutor’s questioning. At bottom, the prosecutor never asked

the prospective jurors to imagine that Rios had “wronged them

personally.” Randell, ¶ 92. She similarly didn’t ask the venire to

imagine that Rios, or anyone else, had sexually assaulted them.

Nor did she ask the prospective jurors to imagine themselves having

to testify about being sexually assaulted.

¶ 36 Instead, the prosecutor asked the venire to (1) imagine a

sexual experience of their own; (2) think about how they would feel

having to talk about the experience with a group of strangers; and

(3) consider how a child or teenager would feel doing the same.

That line of questioning was a permissible way for the prosecutor to

assess whether any prospective juror held a bias that would impact

their ability to fairly and impartially evaluate the victim’s credibility.

See Garcia, ¶ 18.

15 ¶ 37 Rios’s reliance on Manyik is misplaced. In Manyik, a division

of this court concluded that a prosecutor committed misconduct by

assuming, or “channeling,” the victim’s identity during opening

statements. Manyik, ¶¶ 20-34. The division analogized channeling

to golden rule arguments, explaining that both techniques

improperly “place the jurors in the victim’s shoes by inviting them

to view the case through the victim’s eyes.” Id. at ¶ 28.

¶ 38 We recognize that some arguments, while technically not

golden rule arguments, may still improperly appeal to a juror’s

sympathy for the victim. See id. at ¶ 29. But the prosecutor’s

argument here didn’t rise to that level. Unlike in Manyik, the

prosecutor didn’t speak to the venire in the first person as though

she were the victim. And to the extent the prosecutor’s questioning

may have suggested that the victim will experience discomfort

testifying, a reasonable prospective juror would have viewed her

questioning as an appeal to their common sense, not their

sympathy for the victim. See People in Interest of J.R., 2021 COA

81, ¶¶ 48, 50 (concluding jurors would assume the prosecutor’s

comment that “testifying about sexual abuse was hard for young

16 children” was based on the prosecutor’s “everyday experience and

common sense”).

¶ 39 Accordingly, the district court didn’t err by rejecting Rios’s

golden rule argument.

C. Cumulative Error

¶ 40 Because we haven’t identified any error, we also reject Rios’s

contention that the cumulative impact of the alleged errors requires

reversal. See People v. Conyac, 2014 COA 8M, ¶ 152 (“The doctrine

of cumulative error requires that numerous errors be committed,

not merely alleged.”).

III. Disposition

¶ 41 We affirm the judgment.

JUDGE PAWAR and JUDGE MEIRINK concur.