24CA1144 Peo v Stock 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1144 Mesa County District Court No. 22CR695 Honorable Valerie J. Robinson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew Stock,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE BROWN Freyre and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robert W. Kiesnowski, Jr., Alternate Defense Counsel, Commerce City, Colorado, for Defendant-Appellant ¶1 Defendant, Matthew Stock, appeals his judgment of conviction
and sentence following a jury verdict finding him guilty of sexual
assault on a child (SAOC). We affirm.
I. Background
¶2 Based on allegations that Stock sexually assaulted two
children, the prosecution charged Stock with one count of SAOC
and a crime of violence sentence enhancer (related to alleged victim
V.S.) and one count of SAOC — use of force (related to alleged
victim D.M.). The prosecution also alleged that Stock was a
habitual sex offender against children. After a six-day trial, a jury
acquitted Stock of the charges related to V.S. but convicted him of
SAOC without use of force for his conduct related to D.M. At the
sentencing hearing, the district court adjudicated Stock a habitual
sex offender against children and sentenced him to eighteen years
to life in the custody of the Department of Corrections (DOC).
II. Analysis
¶3 Stock contends that the district court erred by (1) admitting a
recording of D.M.’s forensic interview under the child hearsay
statute, section 13-25-129, C.R.S. 2025; (2) allowing the
prosecution to present the forensic interview to the jury before D.M.
1 testified; (3) permitting an expert witness to bolster the credibility of
other witnesses; and (4) imposing a sentence that was grossly
disproportionate to the crime charged. We perceive no basis to
reverse.
A. Child Hearsay Evidence
¶4 Stock’s first two contentions are interrelated. He contends
that the district court (1) erred by admitting D.M.’s recorded
forensic interview under the child hearsay statute because it may
have been admissible under another statute or rule of evidence; and
(2) improperly permitted the prosecution to publish the forensic
interview to the jury before D.M. testified, bolstering her credibility
and giving the prosecution an unfair advantage. We discern no
reversible error.
1. Applicable Law and Standard of Review
¶5 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). Generally, hearsay
statements are presumptively inadmissible, absent a relevant court
rule or statute providing an exception. CRE 802.
2 ¶6 The child hearsay statute provides one such exception for
statements made by a child sexual assault victim. As relevant,
section 13-25-129(2), (5), provides that an out-of-court statement
made by a child describing all or part of an offense of unlawful
sexual behavior as defined by section 16-22-102(9), C.R.S. 2025, is
admissible in a criminal proceeding if (1) the statement “is not
otherwise admissible by statute or court rule that provides an
exception to the hearsay objection”; (2) the court conducts a pretrial
hearing and finds “that the time, content, and circumstances of the
statement provide sufficient safeguards of reliability”; and (3) the
child testifies, or the child is unavailable and there is corroborative
evidence of the act that is the subject of the hearsay statement. See
People v. Dist. Ct., 776 P.2d 1083, 1089 (Colo. 1989).
¶7 To determine the reliability of a child’s out-of-court statement,
the court should consider the following nonexhaustive factors:
(1) whether the statement was made spontaneously;
(2) whether the statement was made while the child was still
upset or in pain from the alleged abuse;
(3) whether the language of the statement was likely to have
been used by a child the age of the declarant;
3 (4) whether the allegation was made in response to a leading
question;
(5) whether either the child or the hearsay witness had any
bias against the defendant or any motive for lying;
(6) whether any other event occurred between the time of the
abuse and the time of the statement which could account
for the contents of the statement;
(7) whether more than one person heard the statement; and
(8) the general character of the child.
Id. at 1089-90.
¶8 No single factor is mandatory or dispositive. See People v.
Phillips, 2012 COA 176, ¶ 88. On the contrary, the factors “provide
assistance and guidance to the trial judge and provide a basis for
analysis, but [they] should not be used to foreclose admissibility on
the basis that one factor has not been satisfied.” People v. Dist. Ct.,
773 P.2d at 1090; see People v. Cernazanu, 2015 COA 122, ¶ 30
(the district court’s reliance on six out of eight factors was sufficient
to support its conclusion that the child hearsay was reliable).
¶9 We review a trial court’s decision to admit child hearsay under
the child hearsay statute for an abuse of discretion. People v.
4 Whitman, 205 P.3d 371, 381 (Colo. App. 2007). A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or if it misconstrues or misapplies the law. People v. Liggett,
2021 COA 51, ¶ 16, aff’d, 2023 CO 22. However, “[t]he court’s
findings regarding the reliability of a child witness’s out-of-court
statements will not be disturbed on appeal if supported by the
record.” Whitman, 205 P.3d at 381.
¶ 10 If the defendant objected to the admission of the evidence at
trial, we review any error under the harmless error standard.
People v. Hard, 2014 COA 132, ¶ 23. But if the defendant failed to
object, we review for plain error. Hagos v. People, 2012 CO 63,
¶ 14. Plain error is error that is both obvious and substantial, such
that it so undermines the fundamental fairness of the trial itself as
to cast serious doubt on the reliability of the judgment of
conviction. Id. The defendant bears the burden of establishing that
plain error occurred. People v. Conyac, 2014 COA 8M, ¶ 54.
2. Additional Background
¶ 11 D.M. participated in a forensic interview conducted by Mesa
County Investigator Jenna Reed. Before trial, the prosecution filed
a motion and notice of intent to admit a recording of D.M.’s forensic
5 interview under the child hearsay statute. Stock requested an
evidentiary hearing.
¶ 12 At the hearing, Investigator Reed testified to her training and
qualifications, as well as the circumstances of D.M.’s forensic
interview. The prosecution argued that the time, content, and
circumstances of D.M.’s statements provided sufficient safeguards
of reliability in light of the investigator’s training, her lack of
familiarity with D.M., and her use of open-ended questions during
the interview. Defense counsel argued that the statements were not
reliable given that D.M. made them in a forensic interview that took
place more than a year after the alleged criminal conduct.
¶ 13 Following the hearing, the district court issued a detailed
written order. It found that D.M. was thirteen years old at the time
of the forensic interview and that she intended to testify at trial.
The court also made findings as to each of the reliability factors and
concluded that “the time, content, and circumstances of each of the
statements made to Investigator Reed during the interview
provide[d] sufficient safeguards of reliability to make them
admissible.”
6 ¶ 14 At trial, Investigator Reed testified three separate times.
During opening statement, the prosecutor explained to the jury
that, because there were two alleged victims, the prosecution
planned to present its evidence in “chapters” — the first chapter
would relate to V.S., and the second chapter would relate to D.M.
During a break, defense counsel noted her understanding from the
prosecutor’s opening statement that Investigator Reed would testify
twice and asked the district court for permission to cross-examine
her “all at once the second time.” The court agreed.
¶ 15 The first time the prosecution called Investigator Reed, she
testified about her experience and training, acknowledged that she
investigated allegations relating to both V.S. and D.M., and
explained the protocols for conducting forensic interviews. She
then testified exclusively about her investigation of the allegations
relating to V.S. and laid the foundation for admission of V.S.’s
forensic interview.
¶ 16 The second time Investigator Reed took the stand, the
prosecutor began by noting some scheduling issues that would
require Investigator Reed to return to testify again later during the
trial. The prosecutor had Investigator Reed lay the foundation for
7 admission of D.M.’s forensic interview. The prosecutor then moved
to admit the forensic interview, and defense counsel reasserted “the
same objection as previously raised” but did not “have anything
additional.” “[B]ased on the earlier ruling,” the court admitted the
forensic interview. The recording was then played for the jury.
¶ 17 After the jury watched the forensic interview, D.M. testified.
Defense counsel did not object to the sequencing of the evidence.
As Stock concedes, D.M.’s in-court testimony “mirrored what she
recounted in her forensic interview.”
¶ 18 On the final trial day, the prosecution recalled Investigator
Reed. This time, Investigator Reed testified about the details of her
investigation of the allegations related to D.M., including reiterating
some of the statements D.M. made during the forensic interview.
Defense counsel then cross-examined Investigator Reed regarding
both alleged victims.
3. Stock’s Contentions Are Unpreserved
¶ 19 Before we reach the merits of Stock’s contentions, we must
first consider whether they are preserved. See Forgette v. People,
2023 CO 4, ¶ 15 (appellate courts have an independent, affirmative
duty to determine whether a claim is preserved). To preserve an
8 issue for appeal, the defendant must raise the issue and provide the
trial court with “an adequate opportunity to make findings of fact
and conclusions of law.” People v. Melendez, 102 P.3d 315, 322
(Colo. 2004); see CRE 103(a)(1). A timely, specific objection “allows
the trial court a meaningful chance to prevent or correct the error
and creates a record for appellate review.” Martinez v. People, 2015
CO 16, ¶ 14.
¶ 20 Stock concedes he did not preserve his contention that the
district court erred by admitting D.M.’s forensic interview under the
child hearsay statute based on his argument that it was admissible
under other hearsay exceptions. But with respect to his contention
that the court erred by allowing the prosecution to present the
forensic interview to the jury before D.M. testified, Stock argues
that the claim is preserved because defense counsel objected to
admission of the forensic interview. We conclude that neither
contention is preserved.
¶ 21 The prosecution moved pretrial to admit D.M.’s forensic
interview into evidence under the child hearsay statute. Defense
counsel did not argue that the forensic interview was inadmissible
under the child hearsay statute because it may have been
9 admissible under other exceptions to the hearsay rule. See People
v. Ujaama, 2012 COA 36, ¶ 37 (an issue is unpreserved for review
when an objection or request was made in the trial court, but on
grounds different from those raised on appeal).
¶ 22 When the prosecution moved to admit the forensic interview
before D.M. testified at trial, the district court asked whether
defense counsel had any objection. Defense counsel stated that she
“[did not] have anything additional” beyond the objection she had
previously raised. Critically, defense counsel’s prior objection did
not alert the court to either the admissibility or sequencing issues
Stock argues on appeal. Because Stock’s contentions were not
raised in or decided by the district court, they are unpreserved, and
we will reverse only for plain error. See Hagos, ¶ 14; Melendez, 102
P.3d at 322.
4. The District Court Did Not Plainly Err by Admitting D.M.’s Forensic Interview Under the Child Hearsay Statute or by Allowing the Prosecution to Present It Before D.M. Testified
¶ 23 Because Stock’s contentions related to the district court’s
admission of D.M.’s forensic interview are interrelated, we address
them together. Stock contends that the court erred by admitting
D.M.’s forensic interview under the child hearsay statute because
10 her statements may have been admissible under other exceptions to
the general hearsay rule. See § 13-25-129(2) (authorizing
admission of a statement satisfying the statutory criteria “that is
not otherwise admissible by a statute or court rule that provides an
exception to the hearsay objection”).1 He contends that applying
another hearsay exception would have required the prosecution to
wait until after D.M. was impeached to admit the forensic interview.
Thus, as best we understand, Stock contends that the prejudice
resulting from the court’s alleged error in admitting the forensic
interview under the child hearsay statute was that the court
allowed the prosecution to publish the forensic interview to the jury
before D.M. testified. He also argues that allowing the prosecution
to present the evidence in this way constituted a separate error.
¶ 24 Even assuming the court erred by admitting D.M.’s forensic
interview under the child hearsay statute before D.M. testified and
without first considering its admission under other hearsay
exceptions, we nonetheless conclude that Stock has failed to
establish that these alleged errors were substantially prejudicial
1 Stock does not otherwise contend that D.M.’s forensic interview
was not admissible under section 13-25-129(2), C.R.S. 2025.
11 under the plain error standard. See Hagos, ¶ 14; see also Conyac,
¶ 54 (“The defendant must . . . establish that the error was so grave
that it undermined the fundamental fairness of the trial itself so as
to cast serious doubt on the reliability of the conviction.”).
¶ 25 Stock argues that by allowing the prosecution to publish the
forensic interview to the jury before D.M. testified, the court
“erringly sanctioned a procedure that impermissibly bolstered
[D.M.’s] trial testimony” and “fundamentally and unfairly tilted the
playing field in the prosecution’s favor.” He argues that the
allegedly erroneous procedure was “compounded when Investigator
Reed testified for a third time and was permitted to reiterate to the
jury what [D.M.] had stated in her forensic interview.” But aside
from generally asserting that the alleged errors “more than likely
substantially influenced the jury’s verdict and . . . fundamentally
affected the fairness of [his] trial proceedings,” Stock has not
explained how the errors resulted in substantial prejudice.
¶ 26 As Stock concedes, the statements D.M. made in her forensic
interview mirrored the testimony she provided in court. Stock fails
to explain how the bolstering effect of the forensic interview would
have been different had it been admitted after, rather than before,
12 D.M. testified. For example, Stock has not identified an
inconsistency between D.M.’s forensic interview and her in-court
testimony that he would have been able to explore had she testified
first and had the video been played second. Nor does he claim that
D.M. was present in the courtroom when the forensic interview was
played such that she could have tailored her testimony to track
what she said in the interview.
¶ 27 Although Stock claims that the presentation order allowed
Investigator Reed to testify three times and reiterate D.M.’s account,
he does not argue that any part of Investigator Reed’s testimony
was inadmissible or explain why the prosecution could not have
called Investigator Reed to the stand three separate times even if
the forensic interview had been admitted after D.M. testified. As
noted, Investigator Reed testified multiple times partly because the
prosecution wanted to present the evidence relating to V.S.
separately from the evidence relating to D.M. and partly because of
scheduling issues. She testified substantively about the allegations
related to D.M. only one time.
¶ 28 Stock has failed to meet his burden to demonstrate how the
order in which the evidence was presented impacted the
13 fundamental fairness of his trial. See Conyac, ¶ 54. Consequently,
we conclude that his contentions related to the admission and
presentation of D.M.’s forensic interview do not require reversal
under the plain error standard. See Hagos, ¶ 14.
B. Expert Testimony
¶ 29 Stock contends that the district court erred by permitting a
prosecution expert witness, Cheryl Young, to (1) opine on D.M.’s
credibility and (2) improperly bolster Investigator Reed’s credibility.
We disagree.
¶ 30 CRE 702 allows for the admission of qualified expert opinion
testimony if it will assist the trier of fact to understand the evidence
or to determine a fact in issue. To that end, “[a]n expert may testify
as to the typical demeanor and behavioral traits displayed by a
sexually abused child.” People v. Mintz, 165 P.3d 829, 831 (Colo.
App. 2007). Testimony that provides relevant insights into the
“puzzling aspects of the child’s conduct and demeanor . . . is helpful
and appropriate in cases of sexual abuse of children.” Whitman,
205 P.3d at 383 (citation omitted). But “[a]n expert may not opine
on a witness’s credibility or that a witness was telling the truth on a
14 specific occasion.” People v. Collins, 2021 COA 18, ¶ 58; see People
v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (“[E]xperts may not
offer their direct opinion on a child victim’s truthfulness or their
opinion on whether children tend to fabricate sexual abuse
allegations.”).
¶ 31 We review a trial court’s admission of expert testimony for an
abuse of discretion. People v. Rector, 248 P.3d 1196, 1200 (Colo.
2011). A trial court abuses its discretion if its ruling is manifestly
arbitrary, unreasonable, or unfair, or if it misconstrues or
misapplies the law. Id.; People v. Gee, 2015 COA 151, ¶ 23.
¶ 32 Stock concedes, and we agree, that defense counsel “neither
objected to the prosecution’s expert witness’s qualifications nor
objected to the expert’s trial testimony.” Thus, we review Stock’s
expert-related contentions for plain error. See Ujaama, ¶¶ 37-38
(an issue is unpreserved if the objection is made on different or
unspecified grounds that would not have alerted the trial court to
the issue on review).
¶ 33 At trial, the prosecution offered, and the district court
qualified, Young — a licensed therapist — as an expert in “all
15 aspects of child sexual assault and abuse,” “the patterns of
disclosure and outcry statements of child sexual assault and abuse
victims,” “forensic protocol of child sexual abuse interviews,” “the
process of memory,” and “research and experience in the area of
suggestibility.” As a generalized expert, Young explained that she
“underst[ood] her role to be jury education.” She clarified that she
“[did not] really know anything at all about this case” and that she
did not “intend[] to influence the jury or make any opinions about
anybody being credible.” She said, “That’s not my role.”
¶ 34 On direct examination, the prosecutor asked Young whether
there had been any research done on “fabrication” or “children
lying.” Defense counsel objected to “bolstering,” and the court
sustained the objection. In response, the prosecutor said she
thought “it actually help[ed] the [d]efense,” but her comment was
cut off by Young’s answer to the question:
So fabricating in children, there are reasons that kids fabricate. The most common reason that kids fabricate to us as parents and [caregivers] is to avoid our disappointment and disapproval. They also will lie to avoid consequences. They’ll lie to continue a game, because there’s plenty of games out there where you have to sort of lie in order to continue the game.
16 When we look at kids lying maliciously or intentionally to get another person into trouble, less common. Certainly can be siblings fabricating that they didn’t do something, the brother did it. Not uncommon. In a calculated, intentional way, lying to get an adult into trouble, the least common of all.
Defense counsel did not object again or move to strike Young’s
response.
¶ 35 The prosecutor also asked Young questions concerning the
protocols for conducting a forensic examination of a child. Young
explained “some key things that are foundational to a forensic
interview,” including that interviews should happen in a neutral
environment, be video-recorded, include a cognitive assessment of
the child, and assess whether the child understands what telling
the truth means. According to Stock, Young’s answers “overlapped”
with Investigator Reed’s testimony concerning the procedures for
forensic interviews. For example, Investigator Reed explained that
forensic interviews should be conducted in a neutral, comfortable,
and safe environment; strive to obtain information using nonleading
questions; be video- and audio-recorded; and assess whether the
child understands the importance of telling the truth.
17 3. The District Court Did Not Plainly Err by Permitting Young’s Testimony Regarding Fabrication
¶ 36 Stock contends that the district court plainly erred by
permitting Young to opine on D.M.’s credibility. In support of his
argument, Stock cites People v. Relaford, 2016 COA 99, ¶¶ 16-35, a
case in which a division of this court considered whether expert
testimony offered by a licensed therapist improperly opined on the
child victim’s credibility.
¶ 37 There, the expert identified specific circumstances in which a
child victim might fabricate allegations of sexual assault, including
circumstances that involve “system-savvy adolescents” or
“high-conflict custody cases.” Id. at ¶ 19. The prosecutor asked the
expert if they had “ever come across a false allegation of sexual
abuse . . . in any other circumstance, other than what you’ve
already mentioned,” and the expert responded, “[T]hose are the only
ones that I can think of that I have professionally seen in [thirty]
years, or in the people I’ve supervised.” Id. at ¶ 20.
¶ 38 The division concluded that the expert’s testimony “was not an
explanation of the typical demeanor and behavioral traits displayed
by a sexually abused child” and “did not serve any purpose other
18 than to attempt to influence the jurors’ credibility determinations.”
Id. at ¶¶ 32, 34. Specifically, the division determined that because
the expert testified “that she had not encountered any
circumstances other than those she had described in which
children lied about being sexually assaulted, and those
circumstances were not present in this case, the testimony
necessarily constituted an impermissible expert opinion that the
victims were ‘almost certainly telling the truth.’” Id. at ¶ 34 (quoting
People v. Snook, 745 P.2d 647, 649 (Colo. 1987)).
¶ 39 Stock argues that “Young’s testimony here was strikingly
similar to the testimony that [the Relaford] division . . . concluded
should not have been presented to the jury.” We agree that Young’s
testimony that “the least common” lies told by children are those
done “[i]n a calculated, intentional way . . . to get an adult into
trouble” constituted improper bolstering — and it appears that the
district court thought so too, given that it sustained defense
counsel’s objection on that basis. But we are not persuaded that
the error was obvious for three reasons.
¶ 40 First, the record demonstrates that defense counsel was aware
of the potential that Young’s testimony could be bolstering. She
19 objected to the prosecutor’s question, and the court sustained the
objection. Following the prosecutor’s comment that the anticipated
testimony “actually help[ed] the [d]efense,” the witness immediately
answered the question, and defense counsel remained silent. Given
how the issue developed at trial, we cannot fault the court for not
intervening on defense counsel’s behalf. See Ujaama, ¶ 42 (“Plain
error assumes that the [trial] court should have intervened sua
sponte because the error was so obvious.” (citation omitted)); cf.
Forgette, ¶¶ 2, 34 (when counsel is aware of all the pertinent facts
but does not object or ask the court to take any action, the
objection is waived).
¶ 41 Second, Young’s testimony was far more general than the
testimony at issue in Relaford. Rather than identifying the “only”
circumstances in which a child might fabricate sexual abuse
allegations, Relaford, ¶ 20, Young testified generally about various
reasons why children lie. Notably, she did not focus her testimony
on false sexual abuse allegations. Nor did she speak in absolutes
like the expert witness in Relaford. See id. Instead, she gave a
comparative opinion — that intentionally trying to get an adult in
20 trouble was the “least common” motivation for a child to lie —
without even quantifying how frequently children lie overall.
¶ 42 Third, Young specifically said it was not her job to “influence
the jury or make any opinions about anybody being credible.” Cf.
id. at ¶ 34 (the expert’s testimony “did not serve any purpose other
than to attempt to influence the jurors’ credibility determinations”).
She explained that her role was limited to educating the jurors on
issues that may be outside their scope of knowledge. See People v.
Morrison, 985 P.2d 1, 6 (Colo. App. 1999) (“[S]ubstantially all of
th[e] expert’s testimony was properly received under CRE 702 to aid
the jury in understanding the typicality of reactions by young boys
who have been subjected to sexual abuse.”), aff’d, 19 P.3d 668
(Colo. 2000). And she clarified for the jury that she did not know
anything about the facts of the case.
¶ 43 Under the circumstances, we conclude that it is not obvious
the court should have intervened to strike Young’s testimony in the
absence of an objection by defense counsel. See Ujaama, ¶ 42.
Accordingly, we discern no plain error.
21 4. The District Court Did Not Err by Permitting Young’s Testimony About Forensic Interviewing Protocols
¶ 44 Stock contends that the district court plainly erred by
permitting Young to provide testimony that “overlapped” with
Investigator Reed’s testimony about the protocols for conducting a
forensic examination. Despite conceding that “this error in itself
may not warrant reversal,” Stock argues that Young’s testimony
improperly bolstered Investigator Reed’s credibility even though her
credibility had not been attacked. We discern no error.
¶ 45 To be sure, Young did not directly opine on Investigator Reed’s
credibility. She did not evaluate the procedures Investigator Reed
utilized to conduct D.M.’s forensic interview or conclude that those
procedures were appropriate. Even if Young’s testimony
incidentally bolstered Investigator Reed’s, we would be hard pressed
to conclude that it was improper. See People v. Cooper, 2021 CO
69, ¶ 97 (the incidental bolstering effect of an expert’s testimony on
the credibility of another witness is acceptable where the testimony
educated the jurors regarding matters about which they likely
lacked knowledge or insight); Relaford, ¶ 30 (the incidental
bolstering effect “alone is insufficient to deny admission of the
22 evidence, because expert testimony generally tends to bolster or
attack the credibility of another witness” (citation omitted)).
¶ 46 Moreover, the proper procedures for conducting a forensic
interview were not a focus of the evidence at trial and were not in
dispute. There would have been no reason for the jury to question
Investigator Reed’s credibility regarding those procedures and no
reason for it to be unduly influenced to credit Investigator Reed
based on Young’s testimony. Against this backdrop, we conclude
that the district court did not err by allowing Young to testify
regarding the procedures for conducting a forensic interview.
C. Proportionality
¶ 47 Stock contends that the district court erred by rejecting his
proportionality challenge and imposing a sentence that was grossly
disproportionate to the severity of his crime in violation of the
Eighth Amendment to the United States Constitution. We disagree.
¶ 48 The Eighth Amendment to the United States Constitution and
article II, section 20, of the Colorado Constitution prohibit cruel and
unusual punishments. Wells-Yates v. People, 2019 CO 90M, ¶¶ 5,
10. Those provisions require a sentence to be proportionate to the
23 crime. Solem v. Helm, 463 U.S. 277, 290 (1983); Alvarez v. People,
797 P.2d 37, 38 (Colo. 1990), abrogated on other grounds by, Melton
v. People, 2019 CO 89, ¶ 18. We review de novo whether a sentence
is unconstitutional because it is grossly disproportionate.
Wells-Yates, ¶ 35.
¶ 49 To ensure sentences are not grossly disproportionate, a
defendant convicted of being a habitual criminal is “entitled, upon
request, to a proportionality review of his sentence.” People v.
Deroulet, 48 P.3d 520, 522 (Colo. 2002), abrogated on other grounds
by, Wells-Yates, ¶¶ 63-65; see Wells-Yates, ¶ 8. Even so, “in most
instances the General Assembly’s determinations regarding the
sentencing of habitual criminals will result in constitutionally
proportionate sentences.” Deroulet, 49 P.3d at 526.
¶ 50 The initial proportionality review is a two-step abbreviated
review. First, the court must consider the gravity or seriousness of
the triggering offense (the felony conviction for which a defendant
was sentenced) and the predicate offenses (the prior felony
convictions on which a defendant’s habitual criminal adjudication
was based). Wells-Yates, ¶ 23. Second, the court must consider
“the harshness of the sentence imposed on the triggering offense.”
24 Id. The harshness of the penalty includes both the length of the
sentence as well as parole eligibility. Id. at ¶ 14. “The court must
scrutinize the triggering offense and the predicate offenses and
determine whether in combination they are so lacking in gravity or
seriousness so as to suggest that the sentence is unconstitutionally
disproportionate to the crime, taking into account the defendant’s
eligibility for parole.” Id. at ¶ 23.
¶ 51 If a crime is considered per se grave or serious, the court may
skip the first part of the abbreviated review — considering the
gravity or seriousness of the offenses — and proceed directly to
considering the harshness of the penalty. Id. at ¶ 13 (citing Close v.
People, 48 P.3d 528, 538 (Colo. 2002)). A crime is per se grave or
serious if, “based on [its] statutory elements, [it] necessarily
involve[s] grave or serious conduct” and “would be grave or serious
in every potential factual scenario.” Id. at ¶ 63. For crimes that are
not per se grave or serious, the court should consider the facts and
circumstances underlying the triggering and predicate offenses.
People v. Session, 2020 COA 158, ¶ 36.
¶ 52 If the abbreviated proportionality analysis does not give rise to
an inference of gross disproportionality, no further analysis is
25 required, and the proportionality challenge fails. Wells-Yates, ¶¶ 8,
18. If the analysis gives rise to an inference of gross
disproportionality, then the court must conduct an extended
proportionality review, involving intrajurisdictional and
interjurisdictional comparisons. Id.
¶ 53 Before sentencing, defense counsel filed a motion seeking a
proportionality review of Stock’s anticipated sentence. Stock
conceded that, in 2010, he pleaded guilty to class 4 felony SAOC
under section 18-3-405(1), C.R.S. 2006. He explained that, if he
were to be adjudicated a habitual sex offender against children, his
mandatory sentence would be eighteen years to life, which he
argued was unconstitutionally disproportionate to his crime.
¶ 54 The district court conducted a combined proceeding to
determine whether Stock was a habitual offender and to impose
Stock’s sentence. First, the court found that the prosecution had
proved beyond a reasonable doubt that Stock was a habitual sex
offender against children and adjudicated Stock accordingly. The
court then heard sentencing arguments. The prosecution argued
that, as a habitual sex offender against children, Stock’s mandatory
26 minimum sentence was eighteen years to life in the custody of the
DOC. In response, defense counsel argued that a sentence of
eighteen years to life was “unconstitutionally disproportionate
under the [Eighth] Amendment” but that, “[i]f the [c]ourt does not
make that finding[,] we would join the [p]rosecution’s request for a
sentence of [eighteen] years to life.”
¶ 55 The court explained that it was required to consider several
factors when sentencing Stock, including “the nature of the offense,
the character and rehabilitation potential of [Stock], development of
respect for the law, the deterrence of crime, [and] the protection of
the public.” The court explained that it was “required to try to
select a sentence, a sentence length, and a level of supervision that
addresses [Stock’s] individual characteristics and reduces the
potential that [he will] engage in criminal conduct at the end of [his]
sentence.” In the end, the court sentenced Stock “under the
habitual statute to [eighteen] years to life” in DOC custody.
¶ 56 As for Stock’s argument that his sentence was grossly
disproportionate under the Eighth Amendment, the court found
that “sex assault on a child is a conviction that is per se grave and
serious” and that “certainly . . . in this case . . . it is so.” Finally,
27 after considering the harm caused by Stock’s conduct, the court
concluded that, “[b]ased on the factors set out in the [Wells-Yates]
case, I do not find in this case that the sentence that was imposed
[is] grossly disproportionate.”
3. The District Court Did Not Err by Concluding that Stock’s Sentence Was Constitutional
¶ 57 Stock contends that the district court erred by denying his
Eighth Amendment claim because it (1) determined that SAOC was
per se grave or serious without considering whether the crime
would be grave or serious in every potential factual scenario;
(2) failed to consider “the facts and circumstances underlying both
his triggering offense and predicate offense”; and (3) failed to
consider the harshness of the sentence imposed and Stock’s
eligibility for parole. We are not persuaded.
¶ 58 We conclude that, based on its statutory elements, SAOC
necessarily involves grave or serious conduct and is a per se grave
or serious offense. See Wells-Yates, ¶ 63. At least one division of
this court has already reached that conclusion in a published
decision, albeit before Wells-Yates was announced. See People v.
Strean, 74 P.3d 387, 396 (Colo. App. 2002). We see no reason to
28 depart from Strean, notwithstanding Wells-Yates’ caution to use the
per se grave or serious label “judiciously and deliberately” and only
when a crime “would be grave or serious in every potential factual
scenario.” Wells-Yates, ¶¶ 61, 63.
¶ 59 For a defendant to be found guilty of SAOC, a jury must find
beyond a reasonable doubt that (1) the defendant knowingly
subjected another person who is not his spouse to any sexual
contact; (2) the victim is less than fifteen years of age; and (3) the
defendant is at least four years older than the victim.
§ 18-3-405(1), C.R.S. 2025. As relevant here, sexual contact means
“[t]he knowing touching of the victim’s intimate parts by the
actor . . . or the knowing touching of the clothing covering the
immediate area of the victim’s . . . intimate parts if that sexual
contact is for the purposes of sexual arousal, gratification, or
abuse.” § 18-3-401(4)(a), C.R.S. 2025.
¶ 60 As divisions of this court have explained, “sex offenders have
been convicted of crimes that society regards as particularly
heinous,” and the state has a great interest “in protecting the public
from convicted sex offenders.” People v. Dash, 104 P.3d 286, 291
(Colo. App. 2004); see also Strean, 74 P.3d at 396 (SAOC involves
29 “situations in which an adult treats a vulnerable child as a tool for
sexual gratification, often causing a devastating and life-long
effect”). Further, the General Assembly has declared that “sexual
offenses are a matter of grave statewide concern” that involve
“violations of the well-being, privacy, and security of the victims . . .
and result in serious and long-lasting harm to individuals and
society.” § 16-10-301(1), C.R.S. 2025.
¶ 61 Given what a conviction for SAOC requires — particularly the
perpetrator’s sexual purpose and the age of the child victim — and
the grave impact it has on both victims and society, we conclude
that SAOC is “grave or serious in every potential factual scenario.”
Wells-Yates, ¶ 63. The district court did not err by so concluding.
And because SAOC is a per se grave or serious offense, it follows
that the court did not err by not separately considering the facts
and circumstances underlying Stock’s triggering and predicate
offenses. See id. at ¶ 13.
¶ 62 Finally, we reject Stock’s contention that the court erred by
not adequately considering whether the harshness of his sentence
was disproportionate to the charged conduct. Stock does not
contest his adjudication as a habitual sex offender against children,
30 so the habitual sentencing requirements of section 18-3-412(2),
C.R.S. 2025, apply. Under that statute, the court was required to
“impose a sentence to the [DOC] of not less than three times the
upper limit of the presumptive range for that class felony.”
§ 18-3-412(2). Stock’s SAOC conviction was a class 4 felony, see
§ 18-3-405(2), for which the presumptive sentencing range is two to
six years to life in DOC custody, § 18-1.3-401(1)(a)(V.5)(A), C.R.S.
2025 (establishing the presumptive sentencing range for felony
offenses); § 18-1.3-1004(1)(a), C.R.S. 2025 (requiring convicted sex
offenders to be sentenced to “an indeterminate term of at least the
minimum of the presumptive range specified in section
18-1.3-401 . . . and a maximum of the sex offender’s natural life”).
¶ 63 Combined, these statutes required the district court to impose
a minimum sentence of eighteen years to life in DOC custody.
When considering the harshness of a penalty, we afford legislative
determinations regarding sentences great deference. People v.
Crawley, 2024 COA 49, ¶ 12; see Wells-Yates, ¶ 21. And Stock is
parole eligible, as the district court noted. See § 18-1.3-1006(1)(b),
C.R.S. 2025 (“The period of parole for any sex offender convicted of
31 a class 4 felony shall be an indeterminate term of at least ten years
and a maximum of the remainder of the sex offender’s natural life.”)
¶ 64 The court imposed the minimum sentence the legislature
determined to be appropriate for a habitual sex offender against
children convicted of class 4 felony SAOC, even though Stock was
on parole for the prior SAOC when he engaged in the conduct for
which he was convicted in this case. Considering Stock’s predicate
and triggering offenses in combination, we conclude that they are
not “so lacking in gravity or seriousness” that a sentence of eighteen
years to life for the triggering offense is grossly disproportionate.
Wells-Yates, ¶ 23; see id. at ¶ 5 (“The Eighth Amendment does not
require strict proportionality between crime and sentence . . . .”
(quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy,
J., concurring))); see also Strean, 74 P.3d at 396 (minimum
sentence of forty-eight years to life was not grossly disproportionate
for class 3 felony SAOC). We conclude that Stock’s sentence does
not violate the Eighth Amendment.
III. Disposition
¶ 65 We affirm Stock’s judgment of conviction and sentence.
JUDGE FREYRE and JUDGE SCHUTZ concur.