22CA1590 Peo v Thompson 11-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1590 Weld County District Court No. 18CR1753 Honorable Vincente G. Vigil, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Edward Thompson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHOCK Harris and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Brian Edward Thompson, appeals his conviction
for sexual assault on a child by one in a position of trust. He
argues that the evidence was insufficient to support his conviction
and that the district court erred by allowing improper impeachment
of his expert witness and by excluding evidence of his exculpatory
statements to police under the rule of completeness. We affirm.
I. Background
¶2 D.R., then sixteen years old, went to Thompson’s apartment
one evening for a sleepover with his daughter. Initially, the two
girls watched a movie with Thompson in the living room. When
Thompson went to bed a few hours later, the girls stayed up. At
some point, Thompson’s daughter went to bed in Thompson’s bed
(where she normally slept),1 and D.R. fell asleep on the couch.
¶3 Early the next morning, D.R. woke up and got into bed with
Thompson and his daughter — lying between the two of them with
a blanket between herself and Thompson — where she fell asleep.
According to D.R., she later woke up and felt Thompson’s fingers
1 The apartment had two bedrooms. Thompson shared a room with his daughter, while his two sons shared the other room.
1 inside her vagina.2 Thompson removed his hand and it sounded
like he put it in his mouth. He then put his hand in D.R.’s pants
again, but D.R. moved away, and Thompson moved his hand.
¶4 At that point, D.R. opened her eyes and realized she was
closer to Thompson than when she fell asleep and the two were now
under the blanket she had originally placed between them. When
D.R. opened her eyes, Thompson rolled away from her and acted as
if he was sleeping. D.R. got out of the bed and left the apartment.
¶5 As she was leaving, Thompson messaged her on Facebook,
asking what happened and if she was okay. D.R. told Thompson to
leave her alone and that she was going to tell her grandma and her
mom what happened. Thompson responded that he was asleep and
“when [he] woke up [she] was gone.” He said that they “all” loved
her and that he was “truly sorry for whatever [he] did,” adding, “If I
hurt you in any way th[e]n I deserve whatever happens to me.”
¶6 D.R. reported the assault to police and Thompson was charged
with sexual assault of a physically helpless victim and sexual
assault on a child by one in a position of trust. Thompson’s defense
2 This account of the charged assault is based on D.R.’s forensic
interview, which was admitted as an exhibit at trial.
2 at trial was that the incident had not happened and that D.R. had
dreamed or imagined it due, in part, to her use of drugs and
alcohol. A jury convicted Thompson of sexual assault on a child by
one in a position of trust and acquitted him of the other charge.
II. Sufficiency of the Evidence
¶7 We first address Thompson’s argument that the evidence was
insufficient to support his conviction. He contends that the
prosecution failed to present sufficient evidence that he was in a
“position of trust” with respect to D.R. We disagree.
A. Standard of Review and Applicable Law
¶8 In reviewing the sufficiency of the evidence, we review the
record de novo to determine whether the evidence was sufficient
both in quantity and quality to sustain the conviction. Johnson v.
People, 2023 CO 7, ¶ 13. We do not “serve as a thirteenth juror and
consider whether [we] might have reached a different conclusion.”
People v. Harrison, 2020 CO 57, ¶ 33. Instead, we view the evidence
as a whole and in the light most favorable to the prosecution to
determine if it is “substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.” Johnson, ¶ 13 (citation omitted).
3 ¶9 A person commits sexual assault on a child by one in a
position of trust when that person “knowingly subjects another not
his or her spouse to any sexual contact . . . if the victim is a child
less than eighteen years of age and the actor committing the offense
is one in a position of trust with respect to the victim.” § 18-3-
405.3(1), C.R.S. 2025. One in a “position of trust”
includes, but is not limited to, any person who is a parent or acting in the place of a parent and charged with any of a parent’s rights, duties, or responsibilities concerning a child, including a guardian or someone otherwise responsible for the general supervision of a child’s welfare, or a person who is charged with any duty or responsibility for the health, education, welfare, or supervision of a child, including foster care, child care, family care, or institutional care, either independently or through another, no matter how brief, at the time of an unlawful act.
§ 18-3-401(3.5), C.R.S. 2025 (emphasis added).
¶ 10 This definition is “broad” and the listed categories of
relationships are “illustrative” and nonexclusive. Pellman v. People,
252 P.3d 1122, 1125 (Colo. 2011). The statute is intended to
encompass “those offenders who are entrusted with special access
to a child victim and who exploit that access to commit an offense
against the child.” People v. Roggow, 2013 CO 70, ¶ 15. The
4 person need not be “expressly charged with a particular duty or
responsibility.” Id. Rather, such a responsibility can be implied
from the circumstances. Manjarrez v. People, 2020 CO 53, ¶ 26.
B. Analysis
¶ 11 Viewed in the light most favorable to the prosecution, the
evidence was sufficient to support a jury finding that while D.R. was
spending the night in Thompson’s home, Thompson had a duty or
responsibility for her supervision. See Pellman, 252 P.3d at 1126.
¶ 12 Thompson was the only parent in the home and the only adult
over the age of twenty.3 He knew D.R. was staying overnight, even
spending part of the evening with the girls watching a movie before
going to bed. A jury could reasonably infer that by allowing another
child to spend the night in his home, Thompson assumed a
responsibility for her care and supervision while she was there. See
People v. Madril, 746 P.2d 1329, 1336 (Colo. 1987) (holding that
“position of trust” includes a person “who permits a young child to
come into his home to spend the night with his own children”).
3 Thompson’s twenty-year-old son was also in the home.
5 ¶ 13 Moreover, there was also evidence that Thompson had a
relationship with D.R.’s mother and that D.R.’s mother trusted him
with D.R. D.R.’s mother testified that she had known Thompson for
more than twenty years and considered him to be one of her closest
friends, like a “brother” to her. She relied on Thompson to take
D.R. to school and knew that D.R. occasionally spent the night with
Thompson’s daughter at Thompson’s home. She also testified that
Thompson was “like a[n] uncle” to D.R. and was “somebody she
trusted.” Although D.R.’s mother was not D.R.’s legal guardian at
the time, she “worked it out with” D.R.’s grandmother (who was
D.R.’s legal guardian) that “she could trust [Thompson] with [D.R.].”
¶ 14 A jury could reasonably infer from these circumstances that
Thompson had “special access” to D.R. — and thus an implied duty
of responsibility for her supervision during those periods of special
access — by virtue of his relationship with D.R.’s family. See
Manjarrez, ¶ 34 (holding that the defendant “was entrusted with
special access to the victim” where he “frequently socialized” with
her family and they “trusted him to be alone with their daughter”);
Roggow, ¶¶ 31-32 (holding that evidence was sufficient to establish
6 a position of trust where the victim’s father “trusted [the defendant]
with his children” and the children considered him a family friend).
¶ 15 Thompson contends that he was not in a position of trust with
D.R. because, at sixteen, she was “capable of doing [some] things
. . . for herself” and his interaction with her that night was limited.
But while an older teenager may require less supervision than a
younger child, D.R. was still a minor staying overnight in
Thompson’s home. A jury could reasonably infer that, as a result,
Thompson was charged with some supervisory responsibility over
her — even if he was not “performing a specific supervisory task at
the time.” Pellman, 252 P.3d at 1126. And regardless of the degree
of supervision Thompson exercised, D.R.’s age had no bearing on
whether the circumstances gave Thompson special access to her.
See id. (holding that defendant was in a position of trust where
victim was fifteen and met him without her parents’ knowledge).
¶ 16 We therefore conclude that the evidence was sufficient to show
that Thompson occupied a position of trust with respect to D.R.
while she was an overnight guest of his daughter in his home.
7 III. Expert Cross-Examination
¶ 17 Thompson next argues that the district court reversibly erred
by allowing the prosecution to cross-examine the defense expert
with a judicial order and a Texas state commission report rejecting
the expert’s opinions in another case. He contends that the order
and report were hearsay, inadmissible evidence of specific instances
of conduct, irrelevant, and unduly prejudicial. We are not
persuaded. Even assuming the court erred by allowing this cross-
examination, we conclude that any error was harmless or not plain.
A. Additional Background
¶ 18 The prosecution’s DNA expert testified that Thompson’s DNA
was found on D.R.’s underwear but not on her vaginal or external
genitalia swabs. The defense’s DNA expert, Dr. Phillip Danielson,
generally agreed, testifying that (1) Thompson could not be excluded
as the contributor of the male DNA on the underwear and (2) the
vaginal and external genitalia swabs were “not interpretable.” But
he opined that the vaginal and external genitalia swabs did “not
support the proposition of digital penetration” by Thompson.
¶ 19 On cross-examination, the prosecutor asked Dr. Danielson if
his testimony had been “formally discredited by a federal judge in
8 Washington, D.C. previously.” In response, Dr. Daniel explained
that he had previously provided expert testimony in a case in
Washington, D.C., that a private laboratory had “employed rigorous
scientific methods” and that the judge in that case said he “would
not credit [that] testimony.” Dr. Danielson also noted that an audit
of the laboratory had later confirmed Dr. Danielson’s conclusions.
Over a hearsay objection, the prosecutor then quoted the prior
court’s ruling that “[t]he [c]ourt discredits Dr. Danielson’s
assertion.” Dr. Danielson reiterated that the ruling addressed only
the scientific validity of the methods used by the particular lab.
¶ 20 The prosecutor then asked Dr. Danielson about a report by
the Texas Forensic Science Commission regarding his testimony in
that case. Defense counsel objected on the ground that the report
itself said it should not be used as evidence, and the district court
overruled the objection. The prosecutor then quoted a passage from
that report, which concluded, “Dr. Danielson also testified that he
was able to distinguish between major and minor split peaks in the
data. . . . The subject matter experts on the review team have also
never heard of these concepts and do not agree with Dr. Danielson’s
views.” Dr. Danielson acknowledged that is what the report said.
9 ¶ 21 On re-direct, Dr. Danielson testified that (1) the judicial order
was nearly ten years old; (2) his opinions in that case had since
been confirmed in peer-reviewed publications; (3) most labs in the
United States had since adjusted their standards in accordance
with his testimony; and (4) the issues that were addressed in the
prior case were unrelated to the opinions he offered in this case.
B. Standard of Review and Preservation
¶ 22 We review a district court’s evidentiary rulings for an abuse of
discretion. People v. McLaughlin, 2023 CO 38, ¶ 22. A district
court abuses its discretion when it misapplies the law or when its
ruling is manifestly arbitrary, unreasonable, or unfair. Id.
¶ 23 Thompson objected to the questions at issue on only two
grounds: (1) the order was hearsay, and (2) the report said it should
not be used as evidence (an argument Thompson does not raise on
appeal). He did not raise any other objection, including that the
order and report were inadmissible specific-instance evidence under
CRE 608(b), irrelevant, or unfairly prejudicial under CRE 403. See
Martinez v. People, 2015 CO 16, ¶ 14 (noting that objections must
be “specific enough to draw the trial court’s attention to the
asserted error”). Thus, we review these other arguments for plain
10 error, meaning we will reverse only if the error is “obvious” and “so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
People v. Crabtree, 2024 CO 40M, ¶¶ 42-43 (citation omitted).
C. Analysis
¶ 24 We first conclude that the district court did not abuse its
discretion by overruling Thompson’s hearsay objection to the prior
judicial order. Although the prosecution did not specify the
purpose of the questions, it appears they were designed not to prove
the truth of the matter asserted — that Dr. Danielson’s opinions in
the prior case were wrong or unsupported — but to challenge his
credibility by showing that a judge had so found. See People v. Van
Meter, 2018 COA 13, ¶ 64 (“If an out-of-court statement is not
offered for its truth, it is admissible as nonhearsay evidence as long
as it is relevant.”). To the extent certain questions went beyond this
purpose, any error would be harmless for the reasons below.
¶ 25 Nor were the questions impermissible under CRE 608(b). That
rule prohibits the introduction of extrinsic evidence to prove specific
instances of a witness’s conduct for the purpose of attacking the
witness’s character for truthfulness. CRE 608(b). But even
11 assuming the order and report could be considered specific
instances of Dr. Danielson’s conduct and even assuming they were
offered to attack Dr. Danielson’s truthfulness — as opposed to his
competency — they were not proved by extrinsic evidence. The
order and report were not themselves admitted into evidence.
Instead, the prosecution “inquired into [them] on cross-
examination” (albeit, by reading excerpts), as CRE 608(b) expressly
allows. See People v. Caldwell, 43 P.3d 663, 670 (Colo. App. 2001).
¶ 26 We tend to agree with Thompson, however, that the relevance
of the judicial order and commission report was a stretch. It is true
that a witness’s credibility — particularly an expert witness’s
credibility — is always relevant. See Margerum v. People, 2019 CO
100, ¶ 12; see also Ross v. Colo. Nat’l Bank of Denv., 463 P.2d 882,
887 (Colo. 1969) (“[O]nce a witness testifies as an expert, he
subjects himself to the most rigid kind of cross-examination . . . .”).
And other courts have allowed the use of prior judicial credibility
determinations for cross-examination. See, e.g., United States v.
Woodard, 699 F.3d 1188, 1195-96 (10th Cir. 2012) (citing cases);
United States v. Cedeno, 644 F.3d 79, 82-83 (2d Cir. 2011); cf. Hock
v. N.Y. Life Ins. Co., 876 P.2d 1242, 1257 (Colo. 1994) (holding that
12 district court correctly permitted cross-examination of expert
regarding civil suit challenging reliability of procedures at issue).
¶ 27 But according to Dr. Danielson, his only opinion that was
“discredited” in the prior case was that a particular lab (not the lab
in this case) had employed rigorous scientific methods (not the
methods at issue in this case). That issue had nothing to do with
his opinions in this case. Moreover, Dr. Danielson explained that
the prior testimony was in 2013 and 2014, and that the scientific
consensus had developed substantially since then. That Dr.
Danielson was “discredited” nearly a decade ago somewhere by
someone about something had little to do with his credibility in this
case. See Locke v. Vanderark, 843 P.2d 27, 31 (Colo. App. 1992)
(holding that district court erred by permitting cross-examination of
expert about medical malpractice suits involving different medical
procedures); Woodard, 699 F.3d at 1195 (listing factors relevant to
admissibility of prior credibility determinations, including similarity
of subject matter, how much time has elapsed, and whether the
finding was limited to the witness’s veracity in that specific case).
¶ 28 Nevertheless, even assuming the district court obviously erred
by allowing this line of cross-examination, any error did not
13 substantially undermine the fairness of trial or cast serious doubt
on the reliability of Thompson’s conviction — and any preserved
error would be harmless for the same reasons. First, given the lack
of any apparent connection between Dr. Danielson’s opinion in the
prior case and his opinions in this case, we see little likelihood that
the jury discounted his testimony because of the unrelated judicial
order and commission report. In other words, for the same reasons
the order and report were of minimal relevance, they likely had little
bearing on the jury’s assessment of Dr. Danielson’s testimony.
¶ 29 Second, Dr. Danielson did not testify that Thompson did not
digitally penetrate D.R. He opined only that the evidence —
specifically, the absence of Thompson’s DNA on the vaginal and
external genitalia swabs — did not support the proposition that he
did. But the prosecution’s expert effectively acknowledged the same
thing, recognizing that she could not draw any conclusions from the
vaginal and external genitalia swabs. The prosecution’s expert also
testified about indirect DNA transfer and conceded that she could
not determine how Thompson’s DNA ended up on D.R.’s underwear.
Thus, even if the jury discounted Dr. Danielson’s testimony to some
degree, the two most critical aspects of that testimony were
14 corroborated by the prosecution’s own expert. Cf. People v.
Pratarelli, 2020 COA 33, ¶ 49 (holding that exclusion of testimony
was not plain error where it was cumulative of other evidence).
¶ 30 Third, and most significantly, the crime for which Thompson
was convicted did not require penetration. Unlike sexual assault on
a helpless victim, which requires “sexual intrusion or sexual
penetration,” § 18-3-402(1), C.R.S. 2025, sexual assault on a child
by one in a position of trust requires only “sexual contact,” § 18-3-
405.3(1). “Sexual contact” includes, among other things, “the
knowing touching of the clothing covering the immediate area of the
victim’s . . . intimate parts.” § 18-3-401(4)(a) (emphasis added). Dr.
Danielson’s testimony that there was no evidence of penetration was
therefore immaterial to the jury’s finding that there was sexual
contact, particularly in light of Dr. Danielson’s agreement that
Thompson was a match for the DNA on D.R.’s underwear.4
4 This does not mean, as the People argue, that the jury necessarily
found there was no penetration. It just means it doesn’t matter for purposes of the offense for which Thompson was convicted.
15 ¶ 31 Thus, even if the district court erred by allowing the
prosecution to cross-examine Dr. Danielson about the prior judicial
order and commission report, any error does not require reversal.
IV. Rule of Completeness
¶ 32 Thompson next argues that the district court erred by denying
his request to introduce exculpatory statements he made during a
police interview under the rule of completeness. We disagree.
¶ 33 During the direct examination of the lead detective, the
prosecutor asked the detective if she had interviewed Thompson.
When she said she had, the prosecutor asked if she “ask[ed]
anything about whether [Thompson] knew what the allegation was
or anything about that specific night.” The detective responded:
Yes. So when he entered the interview room, I asked him if he was aware of what the allegation was and he began talking about the messages that we have previously discussed in here, the — Facebook messages, and — talking about how he ha[d] woken up, realizing [D.R.] was gone, and he reached out to her.
The detective did not say anything more about the interview, and
the prosecution did not play the video of the interview for the jury.
16 ¶ 34 Defense counsel sought to elicit two additional points about
the interview on cross-examination: (1) that Thompson had told the
detective that he thought he was there because D.R. and his
daughter had used drugs and alcohol; and (2) that Thompson never
admitted to sexually assaulting D.R. Defense counsel argued that,
under the rule of completeness, it would be misleading for the jury
to hear that Thompson acknowledged the Facebook messages
without also hearing these other two points. The district court
sustained the prosecution’s objection on the ground that the
additional statements did not relate to the Facebook messages.
¶ 35 Defense counsel renewed her request on the next day of trial.
She argued that the detective’s testimony had implied that
Thompson knew D.R. had accused him of sexual assault and did
not deny it, and that Thompson should be able to introduce his
statements that he thought the interview was about something else.
The prosecutor again objected, arguing that (1) the statements the
defense wanted to introduce were unrelated to the statements about
the Facebook messages, having occurred several minutes later in
the interview; and (2) the detective never testified that Thompson
said he knew the interview had to do with an alleged sexual assault.
17 ¶ 36 The court stuck with its prior ruling. It concluded that the
additional statements were not necessary to provide context
because the detective had not referred to any statements about
sexual assault allegations. And it explained that, to the extent the
Facebook messages could imply an awareness of such allegations,
the jury had the necessary context from the messages themselves.
B. Applicable Law and Standard of Review
¶ 37 The rule of completeness provides that “[w]hen a writing or
recorded statement or part thereof is introduced by a party, an
adverse party may require him at that time to introduce any other
part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.” CRE 106
(2022)5; see People v. Montoya, 2024 CO 20, ¶ 48. The touchstone
of the rule is fairness. McLaughlin, ¶ 31. Its purpose is to prevent a
party from misleading the jury by selectively introducing portions of
5 CRE 106 was amended after Thompson’s trial to remove the
requirement that the statement be written or recorded. See People v. Montoya, 2024 CO 20, ¶ 48 n.2. We cite the version of the rule in effect at the time of Thompson’s trial. See id. In any event, a division of this court has held that the prior version applied to oral testimony as well. See People v. Short, 2018 COA 47, ¶ 50.
18 a statement while omitting other portions of the statement that are
necessary to clarify or explain the part introduced. Id. at ¶ 24.
¶ 38 The district court exercises broad discretion in determining
whether fairness requires admission of additional statements under
the rule of completeness. Montoya, ¶ 57. We review the exclusion
of such statements for an abuse of discretion, which occurs only
when the district court misapplies the law or when its ruling is
manifestly arbitrary, unreasonable, or unfair. McLaughlin, ¶ 22.
¶ 39 The detective did not testify to any specific statements that
Thompson made during the interview. Instead, the entirety of her
testimony on this point was that Thompson “began talking about
the [Facebook] messages” and “about how he [woke] up, realiz[ed]
[D.R.] was gone, and . . . reached out to her” — effectively, the same
thing Thompson said in the Facebook messages. Assuming this
limited testimony constitutes the introduction of a part of the
interview, the district court did not abuse its discretion by
concluding that fairness did not require admission of Thompson’s
other statements because those statements were not necessary to
complete or clarify his earlier statements. See Montoya, ¶ 57.
19 ¶ 40 The general statements the detective described were not
inconsistent with Thompson’s later statements. Cf. id. at ¶ 34
(addressing admission of refusal to take blood test and omission of
request to take test); People v. Short, 2018 COA 47, ¶ 34 (addressing
admission of statement that “someone’s abusing [the victim]” and
omission of statement, “[B]ut it ain’t me”). The detective did not
testify that Thompson said he knew he had been accused of sexual
assault, much less that he admitted to (or failed to deny) a sexual
assault. At most, the statements implied that Thompson knew he
was accused of doing something on the night in question. But
Thompson’s later statement that he thought he was there because
the girls used drugs and alcohol that night did not indicate
otherwise. See Short, ¶ 39 (noting that rule of completeness does
not apply to portions of the statement that are irrelevant to the part
that was introduced). To the extent the Facebook messages implied
Thompson’s awareness of a sexual assault, that implication came
from the messages themselves and not the detective’s testimony.
¶ 41 Moreover, Thompson’s later statements did not provide context
to the introductory statements the detective described. In
McLaughlin and Short, the prosecution selectively redacted portions
20 of the same statement that was introduced. See McLaughlin, ¶¶ 10–
12 (describing redactions of individual sentences, and even parts of
sentences, from otherwise complete back-and-forth exchange);
Short, ¶ 34 & n.1 (noting that omitted statement was made
immediately after admitted statement, but distinguishing statement
made sixteen seconds later in response to different accusation).
And in Montoya, the prosecution played an eight-minute video that
ended with the inculpatory statement while omitting the
defendant’s later statement recanting it. See Montoya, ¶¶ 55-58.
¶ 42 Nothing similar happened here. The statements Thompson
sought to introduce — which came several minutes later in the
interview — had nothing to do with the Facebook messages or what
he had done when he woke up on the morning of the charged
assault. See id. at ¶ 57 (noting that the passage of time between
the statements “should inform the court’s assessment of what is
fair”). And unlike in Montoya, no reasonable juror would have
understood the detective’s general description of Thompson’s
reference to the Facebook messages to be a full account of
everything Thompson had said in the interview. Nor did
Thompson’s subsequent statements contradict or retract the
21 admitted ones. See id. at ¶ 56. Indeed, the detective’s testimony
added little, if anything, to the Facebook messages themselves.
¶ 43 Under these circumstances, the district court did not abuse its
discretion by determining that the detective’s brief testimony about
how Thompson began his police interview was not misleading so as
to, in fairness, require the admission of the purportedly exculpatory
statements Thompson made later in the same interview.
V. Disposition
¶ 44 The judgment is affirmed.
JUDGE HARRIS and JUDGE JOHNSON concur.