22CA1662 Peo v Tarango 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1662 Adams County District Court No. 19CR2031 Honorable Patrick H. Pugh, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ramón Antonio Tarango,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE DUNN Tow and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
2nd-Chair, Britta Kruse, Denver, 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. 2024. ¶1 A jury convicted defendant, Ramón Antonio Tarango, of two
counts of sexual assault on a child, two counts of sexual assault on
a child as part of a pattern of abuse, and two counts of sexual
assault on a child by one in a position of trust. He appeals these
convictions. We affirm.
I. Background
¶2 Tarango and his wife married in the late 1990s. When they
married, she had two sons from an earlier relationship. One of her
sons had a stepdaughter, C.M., and the other son had a daughter,
A.A. C.M. and A.A. separately visited their grandparents’ home at
various times throughout their childhoods.
¶3 Around the time C.M. turned nineteen, she alleged that,
between the ages of seven and eleven, Tarango had sexually
assaulted her on multiple occasions during these visits. After A.A.’s
father learned about C.M.’s allegations, he asked A.A. if Tarango
had done anything to her. A.A. initially said no but admitted soon
after that Tarango had sexually assaulted her between the ages of
twelve and fourteen.
1 ¶4 The outcries prompted an investigation. As part of the
investigation, police interviewed C.M. and, a few months later,
facilitated a forensic interview with A.A.
¶5 As to each victim, the prosecution charged Tarango with one
count of sexual assault on a child, one count of sexual assault on a
child as part of a pattern of abuse, and one count of sexual assault
on a child by one in a position of trust.
¶6 At trial, the jury heard directly from C.M., A.A., and Tarango.
Tarango denied the allegations and testified that he never touched
C.M. or A.A. inappropriately. He defended on the theory that C.M.
and A.A. falsely accused him for different reasons. Specifically,
defense counsel argued that C.M.’s allegations stemmed from a
combination of her mental illness, difficulties with family and other
relationships, and a general dishonest character. And he argued
that C.M. influenced A.A., who has an intellectual and cognitive
disability, to make similar corroborating allegations.
¶7 The jury rejected Tarango’s theory and convicted him as
charged. The trial court sentenced him to a controlling term of
eight years to life in prison.
2 ¶8 On appeal, Tarango contends that the trial court reversibly
erred by (1) allowing the prosecution’s advisory witness to “opine on
witness credibility and the correct interpretation of” contested facts
relevant to his defense theory; (2) admitting evidence that was
“tantamount to an opinion” on the truthfulness of C.M.’s allegations
and that constituted “irrelevant and unfairly prejudicial victim
impact evidence”; (3) refusing to review and disclose C.M.’s mental
health records; and (4) refusing to review and disclose A.A.’s
education records. We address each contention in turn.
II. Lay Opinion Testimony
¶9 Tarango contends that the trial court erred by allowing the
prosecution’s advisory witness to provide lay opinion testimony on
witness credibility and his interpretation of the timeline of certain
events.
A. Additional Background
¶ 10 As part of the investigation, Detective Matthew Peterson
interviewed C.M. in February 2019. In April 2019, a forensic
interviewer conducted a forensic interview with A.A. Both
interviews were recorded. During their respective interviews, C.M.
3 and A.A. each disclosed sexual abuse by Tarango, though the
described acts against each victim were different.
¶ 11 At some point around these interviews, C.M. and A.A. met at a
Starbucks coffee shop (the Starbucks meeting). As part of his
theory that C.M. influenced A.A. to falsely accuse him of sexual
assault, Tarango argued that the Starbucks meeting occurred
before either interview, allowing C.M. to share the details of her
allegations against Tarango with A.A.
¶ 12 The trial testimony and evidence as to the exact date of the
Starbucks meeting was conflicting and unclear. A.A. didn’t know
when the Starbucks meeting occurred. C.M.’s mother stated that
the Starbucks meeting “definitely” happened after C.M.’s interview
but wasn’t sure whether it happened before or after A.A.’s interview.
And C.M. went back and forth about whether the Starbucks
meeting happened before or after their respective interviews.
Recordings of C.M.’s interview and later phone calls with police
similarly provided conflicting accounts on the timing of the
Starbucks meeting.
¶ 13 Beyond conducting the investigation, Detective Peterson
served as the prosecution’s advisory witness and was present
4 throughout trial. On direct examination, the prosecution asked
Detective Peterson if, based on his investigation, he understood
when the Starbucks meeting occurred. Defense counsel objected,
arguing that it was “for the jury to determine” the facts and that the
detective was “not qualified” to give “opinions about the facts.” The
prosecution countered that the detective could testify to the
timeline of the investigation and to his understanding of when the
Starbucks meeting occurred based on “his interviews,” “his
investigation,” and “what people have told him that is consistent or
inconsistent with what was said in court.” Defense counsel replied
that it would be “confusing and unnecessarily bolstering a lot of
people’s testimony” for Detective Peterson to opine about which
timeline of events was correct given the “different versions on the
record.”
¶ 14 The trial court ruled that Detective Peterson could testify to
“what his interpretation would be” so long as the prosecution laid a
proper foundation. The court noted that his testimony would be
subject to cross-examination and that any questions would be
subject to objection.
¶ 15 The following exchange then occurred:
5 [Prosecutor:] [S]o we were talking about the timing of those various conversations.
Is it fair to say that you’ve spoken to quite a few different witnesses in this case?
[Detective Peterson:] Yes, ma’am.
[Prosecutor:] Have you attempted to understand the timeline of these various events throughout those interviews?
[Detective Peterson:] I have.
[Prosecutor:] Is it fair to say that there are some discrepancies about when things took place in this case? . . .
[Detective Peterson:] Yes, there has been.
[Prosecutor:] Now, I’m just going to ask you about a couple of these things. Do you know, based on your investigation, when the Starbucks conversation occurred?
[Detective Peterson:] Yes.
[Prosecutor:] How do you know when the conversation occurred?
[Detective Peterson:] So in the December 31st 2019 conversation with [C.M.], she does bring up that she and [A.A.] met up at Starbucks. And she makes very specific mention that [A.A.] says the police had come to my school and talked to me about this matter. And that occurred in April of 2019.
So this meeting at Starbucks occurred some time after April of 2019 when that interview, the forensic interview at the school, was
6 conducted with [A.A.] And it was after my original interview . . . in February of 2019.
[Prosecutor:] So if there’s any statement about this happening in January or February, is it possible that that occurred?.
[Detective Peterson:] I don’t see how it could because --
¶ 16 Defense counsel again objected, asserting that it was improper
for Detective Peterson to opine on the truthfulness of C.M.’s
statements about the timing of the Starbucks meeting. The court
sustained the objection, and the prosecutor rephrased:
[Prosecutor:] Detective, when was [C.M.’s] interview with law enforcement[?]
[Detective Peterson:] February 26th of 2019.
[Prosecutor:] Is it you[r] understanding that the conversation happened before or after that?
[Detective Peterson:] It happened after that.
[Prosecutor:] Okay. So that’s two days before February is over.
[Detective Peterson:] I believe so, yeah.
[Prosecutor:] Because there’s 28 days in February.
[Detective Peterson:] I believe so.
7 ¶ 17 The prosecutor then moved on, and defense counsel raised no
further objections.
¶ 18 Defense counsel thoroughly cross-examined Detective
Peterson about inconsistent statements regarding the timing of the
B. Preservation and Standard of Review
¶ 19 We reject the People’s assertion that Tarango didn’t preserve
this issue for appeal because neither of his two objections
specifically referenced CRE 701. While it’s true that Tarango didn’t
cite CRE 701, he nevertheless alerted the court to his concern that
it was improper for Detective Peterson to opine on when the
Starbucks meeting occurred. And, from the discussion
surrounding Tarango’s first objection, it’s clear that the court
understood Tarango’s concern that Detective Peterson was offering
an “interpretation” of events based on “conversations in which he
did not participate” and “was not present” for. Because Tarango’s
objections were sufficiently specific to alert the court to the issue he
raises on appeal, we conclude the issue is preserved. See People v.
McFee, 2016 COA 97, ¶ 31.
8 ¶ 20 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Snelling, 2022 COA 116M, ¶ 31. A court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, unfair, or when it misapplies the law. Id.
¶ 21 We review preserved evidentiary claims for harmless error,
meaning we reverse only if the error substantially influenced the
verdict or affected the fairness of the trial proceedings. Id. at ¶ 32.
C. The Court Erred by Admitting Detective Peterson’s Lay Opinion Testimony
¶ 22 Under CRE 701, a lay witness may testify to opinions or
inferences so long as they are (a) rationally based on the perception
of the witness; (b) helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue; and (c) not based
on scientific, technical, or other specialized knowledge within the
scope of CRE 702. Lay opinion testimony is permitted because “it
has the effect of describing something that the jurors could not
otherwise experience for themselves by drawing upon the witness’s
sensory and experiential observations that were made as a
firsthand witness to a particular event.” McFee, ¶ 76 (quoting
United States v. Freeman, 730 F.3d 590, 595 (6th Cir. 2013)). A lay
9 witness’s opinion is not helpful to the jury, and therefore improper,
if it’s based on the same information that the jury has. See id.
¶ 23 Detective Peterson had no firsthand knowledge about the
Starbucks meeting date. Contrary to the People’s assertion, he
didn’t testify to any “facts developed during his investigation” to
support his opinion as to when the meeting occurred. For instance,
he didn’t testify that he determined the date based on evidence
such as calendar entries, surveillance videos, or interviews with
Starbucks employees. Rather, he opined on the meeting date based
on C.M.’s statements. But C.M. gave conflicting statements about
the meeting date, and Detective Peterson was in no better position
than the jury to resolve the conflicting statements. Thus, Detective
Peterson’s opinion about the Starbucks meeting date was not based
on personal knowledge, “could not have been helpful to the jury,”
and was not proper lay opinion testimony. Id.; see also People v.
Vergari, 2022 COA 95, ¶ 19 (lay witness improperly opined on
contents of video recordings because witness lacked personal
10 knowledge of recordings and did not rely on expertise to help the
jury understand what the recordings depicted).1
¶ 24 We are not otherwise persuaded by the People’s contention
that Detective Peterson’s opinion was helpful to the jury because “it
assisted the jury in understanding the timeline of events, especially
in the context of [the detective’s] investigation.” As explained,
though he attempted to couch his opinion in terms of his
“investigation,” Detective Peterson did nothing more than select one
of C.M.’s varying accounts about when the Starbucks meeting
occurred. But the jury had the same information and was
competent to reach its own conclusion on when that meeting
occurred. See McFee, ¶ 76 (a witness “may not form conclusions for
jurors that they are competent to reach on their own”).
¶ 25 Even so, for several reasons, we conclude that the error was
harmless.
1 Tarango offers additional reasons for concluding the detective
offered improper lay opinion testimony, including that it bolstered C.M.’s credibility, relied on specialized knowledge, and alluded to facts not in evidence. Because we agree the court erred by admitting lay opinion testimony that wasn’t helpful to the jury, we needn’t consider these additional contentions.
11 ¶ 26 First, the detective’s improper opinion comprised a couple
lines of testimony in a five-day trial with twenty-one witnesses. And
the prosecution never again referenced the detective’s opinion on
the timing of the Starbucks meeting. Even more than that, the
prosecutor seemingly disavowed it by candidly admitting in rebuttal
closing argument that “no one knows” when the Starbucks meeting
occurred and that C.M., A.A., and C.M.’s mother “couldn’t tell you a
date.”
¶ 27 Second, the jury heard directly from C.M. about the meeting
date, and it could independently evaluate and assess C.M.’s
recorded and testimonial statements — some of which supported
Tarango’s theory that the Starbucks meeting occurred before the
interviews. See id. at ¶ 78 (concluding admission of detective’s lay
opinion testimony concerning recorded interviews was harmless
because “[t]he jury listened to both recordings and was instructed
to come to its own conclusion about what [the defendant] had
said”); Vergari, ¶ 20 (concluding admission of lay opinion testimony
about video recordings was harmless because the jury “watched the
videos,” “had access to them during deliberations,” and was “free to
disregard [the] opinion and come to its own conclusions”).
12 ¶ 28 Third, the timing of the Starbucks meeting is separate from
what happened at the meeting, which was also disputed at trial.
The detective offered no opinion on what C.M. and A.A. discussed at
the meeting. In contrast, C.M. and A.A. both testified that they
didn’t “go into detail” about the sexual assaults at the Starbucks
meeting. And, more fundamentally, C.M. and A.A. testified about
different acts of sexual abuse committed by Tarango. Thus, the
jury was also able to independently consider and assess the
testimony about the content of that meeting.
¶ 29 Fourth, and relatedly, regardless of whether the Starbucks
meeting occurred before the interviews, it was undisputed that C.M.
and A.A. had already each disclosed the sexual abuse. The jury
heard testimony that C.M.’s formal outcry occurred during her
hospitalization. But before C.M.’s formal outcry, the jury also heard
that C.M. had disclosed the abuse to another cousin during
childhood, then to a friend in early high school, then to her
biological father when she was sixteen or seventeen, and then to
her aunt (though the precise timing and order of these disclosures
was disputed and unclear). And it heard that A.A. had first
disclosed the abuse to her biological mother before later reporting
13 the abuse to her father after he asked her about it.2 Because the
outcries occurred before the Starbucks meeting (whenever it
occurred), C.M. and A.A. couldn’t have hatched the allegations at
the Starbucks meeting. Thus, contrary to Tarango’s suggestion
that the detective’s testimony “effectively eliminated” his defense,
the date of the Starbucks meeting was modestly important and bore
little on the ultimate issue of whether Tarango sexually assaulted
C.M. and A.A.
¶ 30 For all these reasons, we conclude that the court’s admission
of the detective’s improper but brief lay opinion testimony did not
substantially influence the verdict or affect the fairness of trial.
III. The Unredacted Police Interview
¶ 31 Next, Tarango contends that the trial court erred by admitting
an unredacted video recording of C.M.’s police interview.
Specifically, he says the court improperly admitted (1) “evidence
2 A.A. testified that her biological mother didn’t believe her when
she disclosed the abuse. When asked why she initially responded “no” after her father asked if Tarango had abused her, A.A. explained that she was “afraid he wouldn’t believe me like my mom didn’t.”
14 tantamount to an opinion on the veracity of” C.M.’s allegations, and
(2) irrelevant and prejudicial victim impact evidence. We disagree.
¶ 32 Tarango asked the court to redact two portions of C.M.’s
February 2019 recorded police interview. The first portion involved
the following comments that Detective Peterson made to C.M.
toward the end of the interview after she had recounted her sexual
assault allegations:
I wanted to let you know, you had mentioned to me that you didn’t want to break up the family and things like that, and I hear that from young people so often. I just want you to know that none of this was your fault. Him leaving the house was not your fault, his behavior is not your fault. This is all on him. Those are the actions he chose to do.
....
So I don’t ever want you to feel any responsibility at all.
¶ 33 Tarango objected under CRE 401 and 403, arguing that the
detective’s “counseling” and reference to his experience with other
“young people” was not relevant to C.M.’s allegations and was
unfairly prejudicial because it garnered sympathy for C.M. The
prosecution responded that Detective Peterson’s comments were
15 relevant to show the rapport he built with C.M., which is an
important aspect of interviewing victims of abuse, and that the
comments were not unfairly prejudicial.
¶ 34 The court declined to redact the detective’s comments, ruling
that his attempt to build rapport with C.M. was relevant and that
his comments were not unfairly prejudicial.
¶ 35 Tarango also asked the court to redact a second portion of the
interview in which C.M. described how the sexual assaults had
affected her and her relationships with family members and others.
She explained:
Um, I feel like it ruins a lot of my family relationships, and just relationships in general, um, I’m not – I’m close with my family, but I am not affectionate with them, like I don’t like to hug, I don’t like, you know like when you – like when my mom will see me she’ll kiss me on the cheek, I don’t like stuff like that. I don’t like hugging for too long, um, it’s just – it’s like, it’s annoying, cuz I can’t even tell like my mom that I love her without feeling like weird about it, or telling like my stepdad that I love him without feeling weird about it, or hanging out with my cousins that are boys and feeling weird around them. It just made me feel like I can’t trust, not even family.
16 And so, um, in high school I had a boyfriend, and then once I was out of high school, um, I had a girlfriend, and our relationship was okay, but we just fought a lot because I can’t – I don’t trust anybody, and um, like I didn’t like to be touched, and it just made them like kind of drift away from me, and then um, I was in another relationship that was abusive, and I just kind of like let it happen, because I think that’s – I feel like things that people do are okay to me, so like what [Tarango] did to me at the time, I felt like that was just something normal, or it just happens, and then like now that I’m older, like when people treat me a certain way, I think it’s okay because that’s just how some people are, and I think that’s ruined a lot of things for me.
¶ 36 Tarango again objected under CRE 401 and 403.3 Though it’s
unclear whether Tarango characterized the evidence as victim
impact evidence, the court interpreted the objection as a victim
impact objection. The prosecution countered that C.M.’s comments
were relevant to rehabilitate her credibility and to rebut Tarango’s
claim that she fabricated the allegations.
3 Though defense counsel objected to this entire passage, he also
argued, seemingly in conflict, that the latter portion discussing C.M.’s abusive relationship was relevant and admissible because the “abusive nature of the relationship impacts [C.M.’s] credibility with respect to the truthfulness of the allegations she’s making” and “the jury should know what was actually going on in her life before she made this complaint.”
17 ¶ 37 The court declined to redact C.M.’s comments, remarking that
there had already been previous testimony about how the incidents
affected C.M. and ruling that the comments were relevant to her
credibility and were not unfairly prejudicial.
¶ 38 At trial, the court admitted and published C.M.’s unredacted
interview to the jury. During deliberations, the jury asked to review
the interview again.
B. Standard of Review and Applicable Law
¶ 39 As before, we review a trial court’s evidentiary rulings for an
abuse of discretion. Snelling, ¶ 31.
¶ 40 We review preserved evidentiary objections for harmless error
and unpreserved objections for plain error. Id. at ¶¶ 32-33. “Plain
error is obvious and substantial.” Hagos v. People, 2012 CO 63,
¶ 14. An error is obvious if it contravenes a clear statutory
command, a well-settled legal principle, or Colorado case law.
People v. Crabtree, 2024 CO 40M, ¶ 42.
¶ 41 Colorado favors the admissibility of relevant evidence unless
otherwise prohibited by constitution, statute, or rule. People v.
Hood, 2024 COA 27, ¶ 19; CRE 402. Evidence is relevant if it tends
to make the existence of a fact of consequence more or less
18 probable. CRE 401. But relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice.” CRE 403. When reviewing an evidentiary ruling, “we
assume the maximum probative value that a reasonable fact finder
might give the evidence and the minimum unfair prejudice to be
reasonably expected.” Hood, ¶ 19 (quoting People v. Clark, 2015
COA 44, ¶ 18).
C. The Court Didn’t Plainly Err by Admitting Detective Peterson’s Comments
¶ 42 To start, Tarango didn’t preserve his argument that Detective
Peterson’s comments made in the give and take of C.M.’s interview
were “tantamount to an opinion on the veracity” of her allegations.
At trial, Tarango objected only that the detective’s comments were
irrelevant and were unfairly prejudicial. Because Tarango didn’t
alert the court to the particular objection he now raises on appeal,
we review for plain error.4 See People v. Tallent, 2021 CO 68, ¶ 12
(“When a party presents a new argument or alters the grounds for
4 Though Tarango preserved his objections to relevancy and unfair
prejudice, he doesn’t separately challenge the court’s ruling that the comments were relevant and not unfairly prejudicial. To the extent he addresses the court’s ruling, he does so within the context of his improper bolstering argument. We therefore do the same.
19 an objection on appeal, the issue is forfeited and reviewable only for
plain error.”).
¶ 43 We agree with Tarango that a witness may not testify, either
directly or indirectly, as to whether a victim is telling the truth. See
Venalonzo v. People, 2017 CO 9, ¶ 32. But the detective never
testified at trial — either directly or indirectly — that he believed
C.M. or thought her allegations were credible. And Tarango points
us to no authority applying Venalonzo’s prohibition to comments
made during a witness interview and later introduced at trial. See
id. at ¶¶ 32-33 (discussing prohibition in terms of one witness
testifying about another witness’s credibility).
¶ 44 But even assuming Venalonzo applies to witness interviews,
we don’t interpret the detective’s brief comments that C.M. was not
at “fault” or “responsibl[e]” for some apparent family turmoil as
commenting on her credibility or the truthfulness of her allegations.
Though he reassured C.M. during the interview, he never said he
believed her. Thus, the detective’s interview comments “did not so
obviously constitute improper bolstering as to amount to plain
error.” Id. at ¶ 37 n.6; see also Crabtree, ¶ 42 (To be plain, the
error must be “so clear-cut” and “so obvious” that the trial court
20 “should be able to avoid it without benefit of objection.”) (quoting
Romero v. People, 2017 CO 37, ¶ 6).
¶ 45 We therefore conclude that the trial court did not plainly err or
otherwise abuse its discretion by admitting the detective’s
comments.
D. The Impact Comments
¶ 46 Tarango argues that the trial court reversibly erred by
admitting C.M.’s comments about how the sexual assaults affected
her relationships with family and others. He contends that such
victim impact evidence is “presumptively irrelevant and
inadmissible” during the guilt–innocence stage of trial.
¶ 47 Evidence that describes the physical, emotional, or social
impact of a crime on its victim — like C.M.’s comments to Detective
Peterson — is not presumptively irrelevant. See People v. Martinez,
2020 COA 141, ¶¶ 29, 33. Rather, victim impact evidence may be
admissible during the guilt–innocence phase of a trial if it’s relevant
to prove whether a defendant committed the charged crime. Id. at
¶ 33; People v. Mena, 2025 COA 14, ¶ 15; see also Payne v.
Tennessee, 501 U.S. 808, 823 (1991) (“In many cases the evidence
relating to the victim is . . . relevan[t] at the guilt phase of the
21 trial.”); Schreibvogel v. State, 2010 WY 45, ¶ 22 (noting that
relevancy is the “key inquiry” in determining the admissibility of
victim impact testimony during the guilt–innocence phase of trial;
cited favorably in Martinez). Relevant evidence includes any
evidence that makes it more or less probable that a criminal act
occurred. CRE 401; Clark, ¶ 17.
¶ 48 The People argue that C.M.’s impact comments were relevant
to rebut Tarango’s fabrication defense and to rehabilitate C.M.’s
credibility. Tarango responds that C.M.’s comments were irrelevant
because they didn’t make it more likely that he committed sexual
assault and, even assuming the comments had “some minimal
probative value,” the probative value was significantly outweighed
by the undue risk of sympathy for C.M.
¶ 49 Under these circumstances, we conclude that C.M.’s
statements explaining the relational impacts she experienced from
the assaults were relevant to determining guilt. The central issue at
trial was whether C.M. fabricated the sexual assault allegations
against Tarango and manipulated A.A. into doing the same. From
the opening statement through closing argument, Tarango
relentlessly attacked C.M.’s credibility. And because C.M.’s
22 testimony was the only direct evidence of the assault, her brief
comments explaining how the sexual assault had impacted her had
some tendency to make it less probable that she fabricated the
allegations. Thus, the impact evidence here was relevant to rebut
the fabrication defense and had a tendency to make it more
probable that a “criminal act occurred” and that Tarango “was the
perpetrator.” Clark, ¶ 17; accord Mena, ¶¶ 20-24 (victim impact
evidence was relevant to whether the victim’s sexual assault
accusations were true or fabricated because her credibility “was the
linchpin of the case”); see also King v. State, 2023 WY 36, ¶ 39
(explaining that victim impact evidence may be relevant “for a
proper purpose” such as to show “whether the [sexual assault]
incident occurred at all” or “to bolster a witness’s credibility after it
is attacked”; collecting cases); Cueva v. State, 339 S.W.3d 839, 880-
81 (Tex. Ct. App. 2011) (victim impact evidence was relevant and
admissible because the defendant claimed the victim and her
mother fabricated the incident).
¶ 50 Of course, we acknowledge that C.M.’s comments weren’t
helpful to Tarango’s defense. But assuming “the maximum
probative value that a reasonable fact finder might give the evidence
23 and the minimum unfair prejudice to be reasonably expected,”
Hood, ¶ 19, we can’t say that C.M.’s interview comments — which
occupied a few minutes of a five-day trial and were not repeated in
live testimony or closing argument — were unfairly prejudicial, see
Mena, ¶ 27 (concluding any unfair prejudice resulting from the
victim’s impact testimony was unlikely to substantially outweigh
the relevance of that testimony, which was “highly probative of her
credibility, a central issue in the case”); see also People v. Dist. Ct.,
785 P.2d 141, 147 (Colo. 1990) (“The trial court should not exclude
proffered evidence as unfairly prejudicial simply because it damages
the defendant’s case.”).
¶ 51 In sum, we conclude the trial court’s decision to admit C.M.’s
victim impact evidence was not manifestly arbitrary, unreasonable,
or unfair.
IV. The Mental Health Records
¶ 52 Tarango asks us to remand to the trial court because, in his
view, the court failed to review and disclose information from C.M.’s
mental health records.
24 A. The Original Motion
¶ 53 Before trial, Tarango filed a motion for disclosure of C.M.’s
“therapy records.” He requested the opportunity to subpoena
C.M.’s mental health records and asked the court to review the
records in camera for relevant and exculpatory information.5
¶ 54 Recognizing that C.M.’s records were protected by the
psychologist-patient privilege, Tarango generally alleged that C.M.
had waived the privilege by placing her mental health treatment at
issue and that the records might show that C.M. had identified
someone other than him as her abuser. The motion theorized that
he needed the records to determine whether C.M. had waived her
privilege by sharing confidential information with third parties. The
motion didn’t allege that C.M. waived her privilege through any
specific conduct or actions.
¶ 55 The court denied the request, finding that Tarango had not
shown that C.M. had expressly or impliedly waived her privilege.
5 Tarango also asked the court to compel C.M. to undergo a
psychological examination. The court denied this request.
25 B. The Discovery
¶ 56 As best we can tell, after Tarango filed his original motion, the
prosecution produced various interview transcripts to defense
counsel in discovery. Included among the discovery was a
transcript of a phone conversation between Detective Peterson and
C.M.’s mother. During the call, the detective asked her about
C.M.’s allegations. In relevant part, she responded:
I do know that when [C.M.] was at the hospital I got a phone call from one of the doctors that she had spoken with or a therapist um, and she . . . told me that [C.M.] had given permission for her to speak with me and to discuss what they talked about. Um, and I had asked that person if [C.M.] brought up anything about the sexual abuse. Um, and she said [C.M.] did.
¶ 57 Later in the call, C.M.’s mother described some information
she found while going through C.M.’s cell phone:
[S]o the night of the hospital, I had got ahold of [C.M.’s] roommate and I asked her roommate, I said do you know [C.M.’s] passcode? . . . So she gave me [C.M.’s] passcode and then I opened up the phone and that’s when I saw her having multiple conversations with people who I didn’t even really know. . . . [O]h, she had told some people about work. Um, that . . . she went to, she told someone that she had already went to the hospital and that she was diagnosed with multiple personalities
26 um, depression and anxiety and that she’s trying to get help.
C. The Motion to Reconsider
¶ 58 Tarango filed a motion to reconsider the denial of the
requested mental health records, again arguing that C.M. had
waived her privilege. In support, he attached an affidavit from a
defense expert and nearly one hundred pages of discovered
transcripts, including the transcript of Detective Peterson’s
conversation with C.M.’s mother. But the motion didn’t argue that
C.M. waived her privilege by authorizing her mother to speak to
treatment providers or through specific text messages. And though
the motion cited a couple portions of the attached transcripts, none
of the citations were to the statements C.M.’s mother made to
Detective Peterson about her conversation with the provider or the
text messages.
¶ 59 Many months later, Tarango filed a “motion for the court to
rule” on his motion to reconsider. Embedded within the request for
a ruling, Tarango asserted for the first time that C.M. had waived
her privilege by “allow[ing] her therapist to speak to her mother”
and that C.M.’s mother told Detective Peterson that “she did talk to
27 C.M.’s therapist who confirmed C.M. was discussing the abuse she
claims she suffered from the defendant.”
¶ 60 After a hearing that addressed several outstanding motions,
the court denied the motion to reconsider, finding that it “did not
see any additional grounds or legal basis to support” a finding that
C.M. had waived her privilege and that “C.M. is the only person who
can waive” her privilege. After the court ruled, defense counsel
stated:
I tried to show additional information in my motion that the therapist had actually spoke to [C.M.’s] mother about the fact that she was talking about it in therapy while she was down there. That was an additional implied waiver. I thought because it was a third party breach, you know, sharing privileged information with a third party.
¶ 61 After some additional back and forth about whether the
prosecution would open the door to C.M.’s mental health at trial,
the court again stated that it “[didn’t] believe that there has been a
waiver of the psychotherapist-patient privilege.” The text messages
were never mentioned at the hearing.
28 D. Applicable Law and Standard of Review
¶ 62 Colorado recognizes the psychologist-patient privilege. See
§ 13-90-107(1)(g), C.R.S. 2024. The psychologist-patient privilege
assures “a victim of a sexual assault that all records of any
treatment will remain confidential unless otherwise directed by the
victim.” People v. Wittrein, 221 P.3d 1076, 1083 (Colo. 2009)
(quoting People v. Sisneros, 55 P.3d 797, 800 (Colo. 2002)). Among
other things, the privilege protects treatment records from discovery
and from in camera review by the court. Id.; see People v. Kelley,
2023 CO 32, ¶ 24 (discussing the analogous physician-patient
privilege).
¶ 63 Because the privilege is designed to protect the patient, “the
only basis” for authorizing the disclosure of privileged information is
“an express or implied waiver.” Kelley, ¶ 24 (quoting Clark v. Dist.
Ct., 668 P.2d 3, 9 (Colo. 1983)). “This evidentiary showing of waiver
is required before the trial court may order the documents produced
for an in camera review.” Sisneros, 55 P.3d at 800 (emphasis
added). And the party seeking the privileged information has the
burden of establishing a waiver. Kelley, ¶ 24.
29 ¶ 64 To determine whether a waiver occurred, “the proper inquiry is
not whether the information sought may be relevant,” id. (quoting
People v. Johnson, 2016 CO 69, ¶ 12), but whether “the privilege
holder has somehow forsaken, through words or action, a claim of
confidentiality as to the information in question,” id.
¶ 65 If preserved, we review a trial court’s resolution of discovery
issues, including whether to review certain documents in camera,
for an abuse of discretion. See People v. Zapata, 2016 COA 75M,
¶ 20, aff’d, 2018 CO 82. If unpreserved, we review for plain error.
See Snelling, ¶ 33.
¶ 66 However, whether a patient waived the psychologist-patient
privilege presents a mixed question of fact and law, meaning we
defer to the trial court’s factual findings if supported by the record
but review its legal conclusions de novo. See L.A.N. v. L.M.B., 2013
CO 6, ¶ 29; People v. Marsh, 396 P.3d 1, 12 (Colo. App. 2011), aff’d,
2017 CO 10M.
E. The Court Didn’t Err by Refusing to Review C.M.’s Mental Health Records in Camera
¶ 67 Tarango argues that the court erred by not conducting an in
camera review of C.M.’s mental health records. He now says that
30 C.M. expressly or impliedly waived her privilege based on (1) the
statement C.M.’s mother made to Detective Peterson that one of
C.M.’s therapists “told her” that C.M. “had given permission” for the
provider to speak with her, and (2) purported texts that C.M.’s
mother described seeing on C.M.’s phone that C.M. apparently sent
to an unknown person disclosing “her mental health diagnosis.”
¶ 68 But Tarango never raised these specific arguments to the trial
court in either his original motion or his motion to reconsider.
Regarding preservation, Tarango simply directs us to the
voluminous attachment to his motion for reconsider without
explaining how attaching a hundred pages to his motion to
reconsider sufficiently alerted the trial court to the specific waiver
arguments he now makes on appeal.6 See McFee, ¶ 31. Because
6 While there is a brief reference to C.M.’s mother’s conversation in
the motion requesting a ruling on the motion to reconsider, though Tarango cites that motion, he doesn’t explain how a new argument embedded in a post-reconsideration motion alerted the trial court to the specific waiver argument he now raises on appeal. Cf. Fox v. Alfini, 2018 CO 94, ¶ 36 (in civil cases, “a district court generally does not abuse its discretion by refusing to consider new arguments and evidence submitted in motions to reconsider”); People v. Genrich, 2019 COA 132M, ¶ 156 n.2 (Tow, J., concurring in part and dissenting in part) (“[N]either the trial court nor this court is required to consider information first presented in a motion to reconsider.”).
31 we don’t see where Tarango alerted the trial court to this specific
argument in his original motion or motion to reconsider, we can’t
say that the trial court obviously erred by not sua sponte reviewing
the voluminous attachments and identifying the specific waiver
arguments now presented. See Crabtree, ¶ 42.
¶ 69 Even if we assume the voluminous materials attached to the
motion to reconsider alerted the trial court to Tarango’s waiver
argument, those materials include comments by C.M.’s mother and
a reference to some text messages that C.M.’s mother reviewed that
C.M. may have sent to unidentified persons. The materials don’t
include anything from C.M. showing an intent to waive her
privilege. See Kelley, ¶ 24 (only the privilege holder can waive the
privilege). Tarango doesn’t explain how C.M.’s mother’s statements
are sufficient to waive C.M.’s psychologist-patient privilege. Cf.
Sisneros, 55 P.3d at 802 (because the “mere threat of disclosure
destroys the sanctity of the psychologist-patient relationship,”
courts “will not hastily find an implied waiver” when a sexual
assault victim testifies in a criminal trial).
¶ 70 And we can’t conclude on this record that the materials
presented show that C.M. intended to waive her privilege as to her
32 mental health treatment. Regarding the conversation between
C.M.’s mother and “one of the doctors . . . or a therapist” from the
hospital, C.M.’s mother only reported that the treatment provider
discussed “the sexual abuse” disclosure, not any aspects of C.M.’s
treatment or diagnosis. Nothing shows that C.M. authorized the
provider to speak with her mother about anything other than the
disclosed sexual abuse.7 Cf. id. (sexual assault victim didn’t waive
privilege by testifying at trial because she “did not reveal any
specific statements” made by her or the therapist “or any particular
diagnosis or treatment suggestions”); People v. Silva, 782 P.2d 846,
850 (Colo. App. 1989) (same). Likewise, the purported texts that
C.M.’s mother described reviewing on C.M.’s phone show, at most,
that C.M. told “someone” that she was trying to “get help” for
certain mental health conditions that she was diagnosed with
during a prior hospitalization — not the hospitalization at issue in
this case.
7 C.M. first received inpatient treatment at a hospital and then
received follow-up treatment from another inpatient facility. As best we can tell, C.M.’s mother spoke with someone from the hospital. Again, this lack of clarity confirms that C.M. did not intend to waive her privilege.
33 ¶ 71 Based on the record, we can’t conclude that the trial court
erred, plainly or otherwise, by finding that Tarango failed to show
that C.M. had waived her privilege. Without that showing, the court
couldn’t order the production of C.M.’s records for an in camera
review. Thus, the court didn’t abuse its discretion by refusing to
review her records.
¶ 72 Tarango alternatively requests that we remand for a compelled
psychological evaluation. But Tarango doesn’t argue that the court
erred by denying his motion to compel C.M. to undergo a
psychological examination. Because Tarango has not developed
any argument challenging that ruling, we will not address the
request for a remand. See People v. Liggett, 2021 COA 51, ¶ 53,
aff’d, 2023 CO 22.
V. The Education Records
¶ 73 Tarango similarly asks us to remand to the trial court because
he says the court failed to review and disclose A.A.’s education
records.
¶ 74 Included in his motion to disclose C.M.’s mental health
records, Tarango also asked the court to allow him to subpoena
34 A.A.’s “educational” records and to have the court review the
records in camera for relevant or exculpatory information.
¶ 75 Concerning A.A.’s records, Tarango asserted that A.A.
indicated to a forensic interviewer that she had spoken with “ladies
at the school . . . about all of this” but that the forensic interviewer
had not learned of the claims from A.A.’s school. Tarango didn’t
argue that his need for the information outweighed A.A.’s privacy
interests; instead, he simply said that his offer of proof “shows
A.A.’s school never contacted law enforcement about her claims”;
that “it is reasonable to infer that her education records would shed
light on exactly what was bothering A.A. to the potential exclusion”
of Tarango; and that her educational records “would also be
relevant to rebut any claims made during trial that her
performance, attitude or conduct suffered because of the alleged
abuse.”
¶ 76 The prosecution objected, arguing that A.A.’s records were
confidential, neither A.A. nor her parents had consented to
releasing the records, and Tarango failed to show that his need for
the records outweighed A.A.’s privacy interests.
35 ¶ 77 The court denied Tarango’s request to order production of
A.A.’s education records for an in camera review, finding that
Tarango had failed to articulate, in good faith, a specific need for
her records. It noted that Tarango’s proffer was “vague and
conclusory” and that A.A.’s privacy interests outweighed his
articulated need for her records.
¶ 78 Tarango filed a consolidated motion to reconsider the court’s
rulings on his request for C.M.’s treatment records and A.A.’s
education records. Tarango attached an affidavit and the lengthy
transcript of A.A.’s forensic interview to the motion to reconsider.
In the motion to reconsider, Tarango again argued that the court
should review the education records because “A.A. mentioned
having already talked with the ladies at the school” who, based on
an “easy inference,” were school employees and mandatory
reporters. Thus, he reasoned that the referenced “ladies” should
have reported A.A.’s allegations to law enforcement but “no records
or information has been given to the defense that reflects these
prior reports.” And he asserted that A.A.’s privacy interests in her
educational records “is unsubstantial” compared to his interest in
“having all the information relevant to his defense” and that A.A.
36 would “suffer no repercussions if the court were to privately review”
her records “for information that is relevant and material.”
¶ 79 As explained, Tarango later filed a motion for the court to rule
that included more information than either his original motion or
motion to reconsider. As to A.A.’s records, the motion to rule cited
a portion of the forensic interview in which A.A. briefly told the
interviewer that she told “Miss Dollin” that her “grandma’s husband
kinda touched me and my cousin really wrong.”
¶ 80 After the consolidated motions hearing, the court denied the
motion to reconsider, again noting that there were “too many vague
and unknown quantities” such as, for example, the identity of the
school employee A.A. had spoken with, whether that employee was
a therapist or a counselor, and whether any privileges might apply
to that employee’s communications with A.A. It reiterated that
Tarango had not established that his need for A.A.’s records
outweighed her privacy interests “regarding behavior, discipline or
academic level.”8
8 After the court ruled, defense counsel added that Tarango needed
A.A.’s education records because her “intellectual disability” was relevant to the truthfulness of her allegations. Tarango does not reassert this claim on appeal.
37 B. Applicable Law and Standard of Review
¶ 81 A Colorado school district “shall not release the education
records of a student to any person, agency, or organization without
the prior written consent of the parent or legal guardian of the
student except as otherwise provided by” the Family Educational
Rights and Privacy Act (FERPA). § 22-1-123(3), C.R.S. 2024; see
Wittrein, 221 P.3d at 1085. In turn, FERPA permits the release of
education records without parental consent if (1) required by
judicial order or lawful subpoena and (2) the parents and student
are notified in advance. 20 U.S.C. § 1232g(b)(2)(B); see Wittrein,
221 P.3d at 1085.
¶ 82 To obtain a court order or subpoena to access educational
records, the party seeking the records “must articulate, in good
faith, a specific need for the information contained in the records.”
Wittrein, 221 P.3d at 1085. The court must then balance the
party’s need for the information with the privacy interests of the
student and the parents. Id. In doing so, the court should consider
“(1) the nature of the information sought, (2) the relationship
between this information and the issue in dispute, and (3) the harm
that may result from disclosure.” Id. (quoting People v. Bachofer,
38 192 P.3d 454, 641 (Colo. App. 2008)). If the court determines that
the party’s need outweighs any privacy interests, it should then
review the records in camera. Id.
¶ 83 We review a trial court’s decision whether to review certain
documents in camera for an abuse of discretion. Zapata, ¶ 20.
C. The Court Didn’t Abuse its Discretion by Refusing to Review A.A.’s Education Records
¶ 84 Tarango contends that the court erred by finding that he
hadn’t established a good faith, specific need for A.A.’s education
¶ 85 It’s not entirely clear that any record of A.A.’s conversation
with someone at the school about Tarango’s abuse exists. But
assuming such a record exists, it’s also not entirely clear what
Tarango claims is the good faith, specific need for A.A.’s education
records. As best we can tell, Tarango argued the records might bear
on the “reliability” of A.A.’s outcry; might “shed light on exactly
what was bothering A.A. to the potential exclusion” of Tarango; and
might be “relevant to rebut any claims made during trial that her
performance, attitude or conduct suffered because of the alleged
abuse.” But the original motion and motion to reconsider offered
39 nothing more than these vague assertions. See People v. Herrera,
2012 COA 13, ¶ 17 (a criminal defendant’s request to access
confidential social services records “must be more than a mere
fishing expedition”). And neither motion asserted any specific facts
to suggest that A.A. ever named a person other than Tarango as her
abuser. Thus, it’s hard to conclude that the trial court’s ruling —
as framed by Tarango’s original motion and motion to reconsider —
was manifestly arbitrary, unreasonable, or unfair.
¶ 86 But even assuming Tarango established a good faith, specific
need for the education records — which include behavior,
discipline, and academic information — the court also found that
Tarango’s need didn’t outweigh A.A.’s privacy interests in the
records. Tarango doesn’t explain how the court erred in this
finding. See Wittrein, 221 P.3d at 1085 (discussing factors that a
court must balance to determine whether the need for disclosure
outweighs a student’s and her parents’ privacy interests). Rather,
Tarango simply asserts that his need for the records “substantially
outweigh[s]” A.A.’s privacy interests. But that bare conclusion isn’t
sufficient to establish that the court erred in its discretionary
balancing of interests. See People v. Lientz, 2012 COA 118, ¶ 30
40 (rejecting a conclusory claim because “parties must do more than
make conclusory assertions; they must present reasoned analysis”).
¶ 87 Under these circumstances, we conclude the court didn’t
abuse its discretion by refusing to review A.A.’s education records
in camera. Thus, no remand is required.
VI. Disposition
¶ 88 We affirm the judgment.
JUDGE TOW and JUDGE BERGER concur.