Peo v. Vaneck

• Court: Colorado Court of Appeals
• Decided: June 11, 2026
• Docket: 22CA1334
• Status: Unpublished

Opinion

22CA1334 Peo v Vaneck 06-11-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1334 Jefferson County District Court No. 20CR3225 Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee and Cross-Appellant,

v.

Joseph Gabriel Vaneck,

Defendant-Appellant and Cross-Appellee.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE FOX J. Jones and Dunn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 11, 2026

Alexis King, District Attorney, Kevin E. McReynolds, Senior Appellate Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellee and Cross-Appellant

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross- Appellee ¶1 Defendant, Joseph Gabriel Van Eck,1 appeals his various

convictions arising from several incidents in which he allegedly

sexually assaulted four women. We affirm in part, reverse in part,

and remand the case for a new trial on the charges as to which we

reverse.

I. Background

¶2 From April to September 2020, in the Denver metro area, Van

Eck approached three of the four victims — S.A., D.F., and M.P. —

and asked if they needed rides. They accepted. The fourth victim,

B.H., testified that Van Eck forcibly dragged her into his car. All

four women testified that Van Eck took them to a trailhead west of

Denver and sexually assaulted them.

¶3 Van Eck told police he did not sexually assault the women.

He initially said he gave some women rides while he was doing

research on Colfax Avenue in Denver and Lakewood for a book he

was writing about “the fall of society.” But he testified at trial that

he had approached the women seeking prostitution services, they

1 The trial court spelled Van Eck’s name as one word, but we use

the spelling reflected in the parties’ briefs.

1 had consented, and they later falsely accused him to avoid

admitting to illegal conduct or because he did not pay them.

¶4 Van Eck was charged with multiple sex-related crimes,

multiple kidnapping counts, several crime of violence sentence

enhancers, and one count of second degree assault. He was also

charged with theft and soliciting prostitution. After trial began, the

trial court dismissed all counts related to three additional victims —

J.Z., R.M., and K.M. — at the prosecution’s request. The trial

continued with the counts pertaining to S.A., D.F., M.P., and B.H.

The jury largely convicted Van Eck as charged.2

¶5 On appeal, Van Eck raises several challenges. First, he

contends that the warrant authorizing a search of his cell phone

was invalid, so the trial court erred by denying his request to

suppress evidence obtained from the phone. Second, he asserts

that the court erred by refusing to grant a mistrial after the jury

heard opening statements and evidence about the dismissed counts

for J.Z., R.M., and K.M. Third, he argues that the court erred by

2 The jury found that Van Eck did not use a weapon to assault

B.H., and it hung on the kidnapping count and physical force aggravator for D.F.

2 precluding defense counsel from cross-examining the victims about

whether they engaged in consensual sex work with him. Finally, he

argues that cumulative error requires reversal and that the trial

court erred by adding crime of violence sentence enhancers for two

of his sexual assault convictions. The People cross-appeal, arguing

that the court erred by concluding that the prosecution could not

introduce a video of Van Eck’s sexual encounter with M.P. unless

M.P. testified and authenticated the video.3

¶6 We conclude that parts of the cell phone warrant were invalid,

the court erred by denying Van Eck’s motion to suppress certain

evidence obtained from his phone, and the error was not harmless

beyond a reasonable doubt. Thus, we reverse most of his

convictions and remand for a new trial. Next, we conclude that —

even if the trial court applied the wrong legal standard — it did not

reversibly err by denying Van Eck’s motion for a mistrial. We also

conclude that the court did not err or did not reversibly err by

precluding the proffered cross-examination. We do not address Van

Eck’s underdeveloped cumulative error argument. We also do not

3 The prosecution later secured M.P.’s presence at trial, and the

video was admitted and played for the jury.

3 address his challenge to his sentences or the People’s cross-appeal,

which pertain solely to convictions that we reverse.

II. The Warrant

A. Additional Facts

¶7 After arresting Van Eck, police drafted a warrant —

accompanied by an affidavit from the investigating officer — to

search his cell phone. The affidavit summarized interviews with

S.A., D.F., K.M., and B.H. and detailed their descriptions of the

alleged sexual assaults and interactions with Van Eck. The

affidavit also generally described the investigation into Van Eck and

summarized the interview with him. Finally, it briefly described the

information police wanted from the phone.

¶8 The court signed the warrant without modification. It

authorized a search of Van Eck’s phone for (1) “[a]ny

communication through social media platforms related to meeting

people on Colfax or acts of sex assault”; (2) “[t]ext messages, [c]all

[l]ogs, [and] [c]ontact lists”; (3) “[p]hoto and video files to identify

if . . . [he] was taking photos or videos of interactions with possible

victims”; (4) “GPS and location data to verify location at time of

4 reported incidents”; and (5) “[s]ubscriber information to confirm

ownership of phone.”

¶9 The search revealed videos of Van Eck’s sexual encounters

with M.P. and B.H. M.P. was not discussed in the warrant affidavit.

Police identified her after finding the video. Van Eck moved to

suppress evidence obtained from his cell phone, arguing that the

warrant lacked probable cause and was not sufficiently particular.

At a suppression hearing, the trial court — focusing largely on

particularity without directly addressing probable cause —

concluded that the warrant was valid.

¶ 10 At trial, the prosecution introduced the videos of M.P. and

B.H. It also introduced a text message Van Eck sent the day after

he allegedly assaulted B.H. The message included a photo of

someone (presumably Van Eck) holding cash with the caption,

“From last night[’]s escapade.”

B. The Warrant’s Validity

1. Standard of Review and Applicable Law

¶ 11 “A trial court’s suppression ruling presents a mixed question

of law and fact; thus, ‘[w]e accept the trial court’s findings of

historic fact if those findings are supported by competent evidence,

5 but we assess the legal significance of the facts de novo.’” People v.

Coke, 2020 CO 28, ¶ 10 (citation omitted). Because Van Eck

preserved his arguments that the warrant lacked probable cause

and particularity, we review for constitutional harmless error. See

People v. Rodriguez-Ortiz, 2025 COA 61, ¶ 20 (cert. granted in part

Feb. 9, 2026). Under this standard, we must reverse unless we are

“confident beyond a reasonable doubt that the error did not

contribute to the guilty verdict.” Zoll v. People, 2018 CO 70, ¶ 18

(citation omitted). If there is ‘“a reasonable possibility that the error

might have contributed to the conviction,’ the error cannot be

harmless and we must reverse.” Id. (citation omitted).

¶ 12 The Fourth Amendment protects individuals against

unreasonable searches and seizures. U.S. Const. amend. IV.

Specifically, the United States and Colorado Constitutions “prohibit

the issuance of a search warrant except upon probable cause

supported by oath or affirmation particularly describing the place to

be searched and the things to be seized.” Rodriguez-Ortiz, ¶ 21.

¶ 13 There is probable cause for a search warrant when the

supporting affidavit “alleges sufficient facts to allow a person of

reasonable caution to believe that contraband or evidence of

6 criminal activity is located at the place to be searched.” Id. (quoting

People v. Miller, 75 P.3d 1108, 1112 (Colo. 2003)). To determine

whether probable cause exists, we review the totality of the

circumstances and consider “whether a fair probability exists that ‘a

search of a particular place will reveal contraband or other evidence

of criminal activity.’” Id. (quoting Miller, 75 P.3d at 1113)).

However, the affidavit must provide “a sufficient nexus between

criminal activity, the things to be seized, and the place to be

searched.” People v. Kazmierski, 25 P.3d 1207, 1211 (Colo. 2001).

“[V]ague allegations that the defendant engaged in illegal activity

without establishing a nexus between the alleged criminal activity

and place to be searched cannot establish probable cause.” Id.

¶ 14 Next, the warrant must contain “a ‘particular description’ of

the things to be seized.” Coke, ¶ 34 (quoting Andresen v. Maryland,

427 U.S. 463, 480 (1976)). This requirement guards against

‘“general warrants,’ which permit ‘a general, exploratory rummaging

in a person’s belongings.’” Id. (quoting Andresen, 427 U.S. at 480).

The particularity requirement also requires a nexus between the

evidence and the alleged crime; the warrant must be “confined in

scope to particularly described evidence relating to a specific crime

7 for which there is demonstrated probable cause.” People v.

Seymour, 2023 CO 53, ¶ 44 (citation omitted). In the cell phone

warrant context, we consider whether there are “specific limitations

based on (1) the type of alleged criminal activity; (2) the identity of

the alleged victim; and (3) if applicable, the timeframe within which

the suspected crime occurred.” Rodriguez-Ortiz, ¶ 27. Additionally,

a supporting affidavit “may cure a warrant’s facial lack of

particularity if (1) the deficient warrant incorporates the curative

affidavit by reference; (2) both documents are presented to the

issuing judge or magistrate; and (3) the curative affidavit

accompanies the warrant during the execution of the warrant.” Id.

at ¶ 24.

¶ 15 Cell phones present unique challenges in the Fourth

Amendment context. See People v. Davis, 2019 CO 24, ¶ 17.

However, “the general trend of caselaw provides cell phones with

more protection, not less.” Id. The United States Supreme Court

has emphasized the pervasive nature of cell phone usage, their

“immense storage capacity,” and the privacy concerns presented

when people “carry a cache of sensitive personal information with

them.” Riley v. California, 573 U.S. 373, 393, 394-95 (2014).

8 2. Analysis

¶ 16 To determine the cell phone warrant’s validity, we separately

assess each search the warrant authorized. We first consider

whether there was sufficient probable cause for each search and, if

so, address whether the warrant’s scope was sufficiently particular.

a. Social Media Search

¶ 17 First, the warrant authorized police to search for “[a]ny

communication through social media platforms related to meeting

people on Colfax or acts of sex assault.” The affidavit did not

suggest that Van Eck met any of the victims via social media, used

social media to contact them, or discussed his sexual activities on

social media.4 Rather, the affidavit made clear that Van Eck

targeted women in person and — with a single exception — he had

no prior relationship with them.

¶ 18 The only social media platform the affidavit discussed was Van

Eck’s Facebook page, which showed photos of him with tattoos that

matched S.A.’s description. The affidavit also said his profile page

4 Indeed, the affidavit indicated that Van Eck gave fake names to

two of the women, which undermines any suggestion that he used a social media profile with his real name to contact them.

9 indicated that he had “liked” a pornographic movie and other sexual

material — none of which related to rape or sexual assault.

Although the affidavit reasoned that using Facebook “to look at

sexually themed sites” made it “likely that he also used his phone to

view such sites, which may include rape related sites,” police did

not ask to search the phone’s browser history.

¶ 19 Overall, the affidavit lacked evidence that Van Eck used social

media to communicate with victims, about victims, or about his

sexual activity. Thus, there were not “sufficient facts to allow a

person of reasonable caution to believe that contraband or evidence

of criminal activity [was] located” in Van Eck’s social media

communications. Rodriguez-Ortiz, ¶ 21 (quoting Miller, 75 P.3d at

1112). “[V]ague allegations” that his social media could possibly

contain evidence of a crime without any “nexus between the alleged

criminal activity and place to be searched cannot establish probable

cause.” Kazmierski, 25 P.3d at 1211. Therefore, the first part of

the search warrant is invalid.

b. Texts, Call Logs, and Contacts

¶ 20 Next, the warrant authorized police to search “[t]ext messages,

[c]all logs, [and] [c]ontact lists.” The trial court reasoned that,

10 although the language was broad, the investigation suggested that

there may have been other victims, and police were “trying to figure

out who they might be and how they connect.” According to the

affidavit, the only victim with whom Van Eck shared his contact

information was D.F. However, the affidavit also stated that Van

Eck drove away with D.F.’s phone (which had not yet been

activated). It did not mention Van Eck exchanging contact

information with or contacting other victims but reasoned that

because he gave his phone number to D.F., he “likely ha[d] contact

information on his phone and communications with other victims.”5

(Emphasis added.)

¶ 21 We conclude that this provided probable cause to search Van

Eck’s call logs, contacts, and text messages for communications

about or with alleged and potential victims. However, the warrant’s

scope went beyond this. Facially, the warrant authorized a search

of all Van Eck’s text messages, and the affidavit did not limit this

authorization to messages with or about the victims. See

Rodriguez-Ortiz, ¶ 24. Instead, the affidavit noted that “[i]t is not

5 The affidavit did not disclose whether police asked the other

victims if they exchanged contact information with Van Eck.

11 uncommon for serial criminals to document their activities and

crimes with their phone through the use of photos and videos,

which are commonly shared through text messages.” (Emphasis

added.) Thus, even with the affidavit’s limitation, the warrant

authorized a search of any text message from any date with any

person in which Van Eck shared photos or videos of his “activities

and crimes.”6 This is not sufficiently particular. See Rodriguez-

Ortiz, ¶ 27; People v. Herrera, 2015 CO 60, ¶ 20 (warrant to search

“any and all data contained in Herrera’s cell phone” for evidence

that he owned the phone did not provide sufficient limits); cf. Perez

v. State, 888 S.E.2d 526, 538-39 (Ga. 2023) (warrant was

sufficiently particular where it limited the search to call logs and

text messages “that could have shown communications with the

victim or other suspects”).

¶ 22 And, as we will discuss further, such general assertions about

how criminals use their phones do not provide sufficient probable

cause. See, e.g., State v. Baldwin, 664 S.W.3d 122, 134 (Tex. Crim.

6 Because we conclude that the warrant lacked particularity — even

if it sufficiently incorporated the affidavit — we do not address the parties’ dispute about whether the warrant properly incorporated the affidavit.

12 App. 2022) (“[B]oilerplate language about cell phone use among

criminals [is not] sufficient to establish probable cause to search a

cell phone.”); State v. Keodara, 364 P.3d 777, 782 (Wash. Ct. App.

2015) (“[B]lanket statements about what certain groups of offenders

tend to do and what information they tend to store in particular

places . . . [are] insufficient under the Fourth Amendment.”).

¶ 23 In sum, the authorization to search Van Eck’s texts was not

limited to “evidence relating to a specific crime for which there [was]

demonstrated probable cause.” Seymour, ¶ 44 (citation omitted);

see Coke, ¶ 38 (warrant authorizing search of “all texts, videos,

pictures, contact lists, [and] phone records” was unconstitutionally

broad). Accordingly, this part of the warrant is invalid.

c. Photos and Videos

¶ 24 The warrant also authorized police to search “[p]hoto and

video files to identify if . . . Van Eck was taking photos or videos of

interactions with possible victims.” Nothing in the affidavit said the

victims reported Van Eck taking photos or videos or even using or

discussing his phone (apart from giving D.F. his phone number).

Therefore, the only part of the affidavit that could have supplied

probable cause for this search was the generalized assertion about

13 how “serial criminals” use their phones to “document their activities

and crimes . . . through the use of photos and videos.” But as the

United States Supreme Court has acknowledged, this behavior is

not limited to criminals: “[I]t is no exaggeration to say that many of

the more than 90% of American adults who own a cell phone keep

on their person a digital record of nearly every aspect of their

lives — from the mundane to the intimate.” Riley, 573 U.S. at 395.

¶ 25 We conclude that broad, generalized assertions about how

criminals use their phones — even when based on an officer’s

purported training and experience — are generally insufficient to

provide probable cause. Although not in the context of a cell phone

warrant, a division of this court has concluded that a similarly

broad assertion did not supply probable cause to search a home.

People v. Eirish, 165 P.3d 848, 854 (Colo. App. 2007). In Eirish, the

only stated basis for searching the home was the affiant’s statement

that, based on his training and experience, drug dealers commonly

keep records “relating to drug dealing[] in locations used as storage

facilities.” Id. at 853. The division explained, “While an officer’s

‘training and experience’ may be considered in determining

probable cause, such training and experience cannot substitute for

14 an evidentiary nexus, prior to the search, between the place to be

searched and any criminal activity.” Id. at 854.

¶ 26 And other courts have concluded that general statements

about how criminals use cell phones cannot establish probable

cause. E.g., Baldwin, 664 S.W.3d at 134; Keodara, 364 P.3d at

782; United States v. Banyan, 791 F. Supp. 3d 388, 395-96

(S.D.N.Y. 2025) (explaining that, beyond broad statements about

how criminals use phones, there was “no case-specific evidence

even remotely suggesting that there was probable cause to believe

that the cellphone contained” photo evidence of the crime); United

States v. Williams, 813 F. Supp. 3d 503, 523-24 (E.D. Pa. 2025)

(finding no probable cause where there was no evidence, beyond a

“generalized argument that criminals tend to use phones,” that “a

cell phone was used in the commission of the actual offenses or

observed at any of the crime scenes”).

¶ 27 There may be situations in which specific assertions about

how certain criminals use phones in certain crimes could provide

sufficient probable cause. E.g., United States v. Silva, 146 F.4th

183, 193 (2d Cir. 2025) (affidavit discussing gang members’ use of

phones in a racketeering case “identified specific attributes of the

15 alleged criminal conduct that tended to show the cell phone would

contain evidence of that conduct”). Here, however, the broad

statement that serial criminals, like most people, document their

activities through photos and videos did not provide probable cause

to search the photo and video files in Van Eck’s phone. Without

some indicia that he took photos or videos (or even used his phone)

with the victims, nothing suggested his photo and video files

contained evidence of the alleged crimes. See Rodriguez-Ortiz, ¶ 21.

Accordingly, the part of the warrant authorizing a search of Van

Eck’s photo and video files is invalid.

d. GPS and Subscriber Information

¶ 28 Finally, the warrant authorized police to search the phone for

“GPS and location data to verify location at the time of the reported

incidents” and “[s]ubscriber information to confirm ownership of the

phone.” We conclude that these parts of the warrant pass

constitutional muster.

¶ 29 First, with respect to location data, the affidavit cited case law

and a study discussing the ubiquitous nature of cell phone use and

ownership in modern society. Police also seized Van Eck’s phone

upon his arrest. Thus, “the affidavit showed a fair probability that”

16 searching Van Eck’s GPS location data “would reveal ‘evidence of

criminal activity,’ such as his physical location at the time of the

crimes.” Id. at ¶ 25 (citation omitted); see also State v. Evans, 339

A.3d 1138, 1155 (Conn. 2025) (“Given the inextricable connection

between people and their cell phones, an affidavit establishing

probable cause that a suspect committed a crime and facts that [he]

is known to use or possess a particular cell phone” establish

probable cause to search location data.).

¶ 30 The authorization to search the phone’s GPS data was also

sufficiently particular. First, it was limited to the alleged criminal

activity (i.e., the reported incidents). See Rodriguez-Ortiz, ¶ 27.

Second, because it was limited to the reported incidents, it was also

limited to the alleged victims. See id. And third, its timeframe was

limited to the dates of those incidents. See id. Although Van Eck

contends that there was no time limitation, the affidavit identified

the date of each reported incident.7 See id. at ¶ 24.

7 Even if, as Van Eck contends, the warrant did not sufficiently

incorporate the affidavit, any error in introducing the phone’s GPS location data was harmless beyond a reasonable doubt because it was undisputed that Van Eck drove the women to the same location, and he did not contest the dates of the incidents.

17 ¶ 31 We reach the same conclusion regarding the warrant’s

authorization to search the phone’s subscriber information to

confirm ownership. Police had probable cause to believe Van Eck

had committed several crimes and that the phone belonged to him.

See id. at ¶ 25; Evans, 339 A.3d at 1155. And unlike in Herrera,

¶¶ 4, 18-21, this warrant did not authorize police to search Van

Eck’s entire cell phone to confirm ownership information; it was

limited to “subscriber information.” Finally, even if the warrant did

not sufficiently limit where in the phone police could search for

subscriber information, police seized Van Eck’s phone from him,

and he never contested ownership. Therefore, any error in

admitting the phone’s subscriber information was harmless beyond

a reasonable doubt. See Zoll, ¶ 18.

C. Good Faith and Harmless Error

¶ 32 Having concluded that parts of the warrant were invalid, we

next address the People’s argument that the good faith exception to

the exclusionary rule applies. Van Eck acknowledges that the

prosecution raised the good faith exception but contends that

because the trial court never addressed it, we cannot consider it on

appeal. See Coke, ¶ 38 n.4 (declining to address the good faith

18 exception where it had not been argued or addressed below).

However, our independent review of the record reveals that the trial

court did — albeit briefly and in the context of a different warrant —

address good faith. It found “that there very well may be a good

faith exception, both as to this search and the cell phone search. I

didn’t already articulate that with my cell phone finding, but I think

that would also fit in.” Therefore, we will consider the exception.

See People v. Hagos, 250 P.3d 596, 618-19 (Colo. App. 2009)

(addressing the good faith exception despite a lack of factual

findings because our review is de novo).

¶ 33 When police obtain evidence in violation of the Fourth

Amendment, the exclusionary rule may require suppression of

evidence discovered as a result of the violation. People v. Tomaske,

2019 CO 35, ¶ 10. The exclusionary rule also applies to the “fruit

of the poisonous tree” — evidence that was “later discovered and

found to be derivative of” the illegally obtained evidence. Id.

(quoting Utah v. Strieff, 579 U.S. 232, 237 (2016)).

¶ 34 Under the good faith exception, evidence need not be excluded

if, “despite an otherwise invalid warrant, . . . the officer(s) that

19 executed the warrant had a reasonable good faith belief that the

search was in accord with the Fourth Amendment.” People v.

Cooper, 2016 CO 73, ¶ 10; see § 16-3-308(4), C.R.S. 2025.

However, “[i]f no reasonable officer would have relied upon the

warrant, then objective good faith is absent and the good faith

exception” does not apply. Cooper, ¶ 11 (quoting Miller, 75 P.3d at

1113). We review de novo whether an officer’s conduct was

objectively reasonable. People v. Webb, 2014 CO 36, ¶ 15; Hagos,

250 P.3d at 619.

¶ 35 There are four situations in which an officer cannot have

reasonably relied on an invalid warrant, and we address two of

them here. Cooper, ¶ 12; United States v. Leon, 468 U.S. 897, 923

(1984). First, the good faith exception does not apply if the warrant

is “facially deficient” because it “fail[s] to particularize the place to

be searched or the things to be seized.” Leon, 468 U.S. at 923. The

exception also does not apply to a warrant based on a “bare bones”

affidavit that is “so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.” Cooper, ¶ 12

(quoting Miller, 75 P.3d at 1114). “An affidavit is termed bare bones

if it contains ‘wholly conclusory statements devoid of facts from

20 which a magistrate can independently determine probable cause.’”

People v. Pacheco, 175 P.3d 91, 96 (Colo. 2006) (citation omitted).

2. Analysis

¶ 36 Having concluded that the part of the warrant authorizing a

search of Van Eck’s texts lacked particularity, we also conclude that

the good faith exception does not apply. See Herrera, ¶ 22 & n.7

(concluding without further analysis that a lack of particularity

rendered the good faith exception inapplicable).

¶ 37 Because the exception does not apply, we next consider

whether the erroneous admission of Van Eck’s texts was harmless

beyond a reasonable doubt. See Zoll, ¶ 18. The only text message

that he challenges is the one in which, the day after his encounter

with B.H., he sent a photo of cash with the caption, “From last

night[’]s escapade.” However, Van Eck admitted that he took B.H.’s

backpack and placed it by his trash bin when he got home. Police

found a backpack in the trash bin when they searched Van Eck’s

house, and B.H. testified that Van Eck took her backpack, which

contained $300 in cash. Van Eck also admitted that he never

returned the backpack. Therefore, because he effectively admitted

to theft, we conclude that the erroneous admission of the text was

21 harmless beyond a reasonable doubt with respect to his theft

conviction. It did not implicate his other convictions. See id.

¶ 38 We next address the parts of the warrant that lacked probable

cause. Assuming without deciding that the good faith exception did

not apply to the search of Van Eck’s social media communications,

Van Eck does not assert that any such communications were

admitted at trial. If this evidence was not admitted, it necessarily

could not have contributed to his conviction. See Zoll, ¶ 18.

¶ 39 Finally, we address the part of the warrant authorizing a

search of Van Eck’s photos and videos and conclude that the

affidavit was so bare bones that the good faith exception does not

apply. See Cooper, ¶¶ 11-12. As we have explained, the affidavit

provided a “wholly conclusory statement[]” about how serial

criminals use cell phones as the basis to search Van Eck’s photos

and videos. Pacheco, 175 P.3d at 96 (citation omitted). The

reference to “serial criminals” could just as accurately have been

replaced with “most people who own cell phones,” and there was no

other evidence (or inference) that his photos or videos may have

contained evidence of a crime. Thus, we cannot conclude that good

faith was present. See Cooper, ¶¶ 11-12; Miller, 75 P.3d at 1116

22 (declining to apply the good faith exception when there was no link

“between the place to be searched and current information of

criminal activity or the presence of contraband there”).

¶ 40 Accordingly, the videos of M.P. and B.H. should have been

suppressed under the exclusionary rule. Additionally, because

police identified M.P. after searching Van Eck’s videos, all evidence

regarding M.P. — including her testimony — should have been

suppressed as the “fruit of the poisonous tree.” Tomaske, ¶ 10

(quoting Strieff, 579 U.S. at 237).

¶ 41 Finally, we conclude that the erroneous admission of this

evidence was not constitutionally harmless and requires reversal.

See Zoll, ¶ 18. When the prosecution played the videos of M.P. and

B.H., Van Eck started crying. At sentencing, the court said, “[M]y

imagination couldn’t have equaled the horror that I saw on those

videos.” The videos of M.P., who was nineteen when Van Eck

assaulted her, are particularly harrowing. The first video begins

with M.P. clearly crying, saying she wanted to go home multiple

times, and she appears to say “no” when Van Eck asks if she

“like[d] it.” In the second video, Van Eck says, “Don’t run,” he

23 repeatedly tells M.P. not to “bite it” (referring to his penis), and at

one point says, “If you bite it, I will shoot you.”

¶ 42 Given the videos’ graphic nature and the clear implication that

the women did not consent, there is a reasonable possibility that

they may have contributed to Van Eck’s sexual assault and sexual

contact convictions for all four victims.8 See id.; see also People v.

Liebler, 2022 COA 21, ¶ 21 (we are in the same position as the jury

when reviewing video evidence). Therefore, we reverse Van Eck’s

convictions for sexual assault, attempted sexual assault, and

unlawful sexual contact, and we reverse all his convictions related

to M.P. We remand the case for a new trial on those charges

without the improperly obtained evidence. However, on remand,

the prosecution may retry any counts that were not dismissed with

prejudice, including the counts on which the jury was hung. See

People v. Beller, 2016 COA 184, ¶ 14 (“[A] retrial following a hung

jury does not offend the Double Jeopardy Clause.”).

8 The People do not address whether the videos’ admission was

harmless. See People v. Zimmer, 2021 COA 40, ¶ 39 (it is the People’s burden to prove harmless error).

24 ¶ 43 We recognize the particularly brutal nature of the crimes

involved here, but “[o]ur Constitution insists . . . that no matter how

heinous the crime, any conviction must be secured respecting all

constitutional protections.” Shinn v. Ramirez, 596 U.S. 366, 393,

(2022) (Sotomayor, J., dissenting). Because that did not happen

here, we must reverse.

III. The Dismissed Counts

¶ 44 Van Eck next contends that the court erred by refusing to

grant a mistrial after the jury heard opening statements and

evidence about the dismissed counts related to three alleged

victims. He also contends that the court erred by refusing to strike

evidence related to K.M. We conclude that the court did not err or

did not reversibly err.

¶ 45 As discussed, after trial began, the court dismissed all counts

related to J.Z., R.M., and K.M. However, the jury learned of these

victims before the counts were dismissed. First, during voir dire,

the trial court read the various charges and named all seven

original victims. The court then told the jury that the allegations

were not evidence or proof of a crime, and it instructed the jury not

25 to assume that Van Eck committed a crime based on the charges,

number of allegations, or number of victims. During voir dire, the

parties’ attorneys repeatedly said there were seven victims.

¶ 46 In opening statements, the prosecutor briefly described the

allegations pertaining to J.Z., explaining that she and Van Eck

dated in 2014, and Van Eck forced her to have sex with him. The

prosecutor then described R.M.’s sexual assault allegations while

R.M. was Van Eck’s wife. Finally, the prosecutor explained that

Van Eck pulled K.M. into his car, drove her to the mountains,

grabbed her neck, put her in a headlock, kicked her out of the car,

and drove away. R.M. and J.Z. were not discussed again, but

additional evidence was presented about K.M.

¶ 47 Specifically, an officer testified that he responded to the

alleged kidnapping and assault involving K.M. The court gave a

limiting instruction telling the jury to consider the allegations not

for their truth but to understand the officer’s investigation. The

court also limited the scope of the officer’s testimony to the fact that

he met with K.M. and what he did next, but it precluded any

testimony about K.M.’s statements. The officer then explained that

he took pictures of K.M., the prosecution introduced the photos,

26 and the officer testified that he took a photo of K.M.’s neck (where

she said she was assaulted). Two other officers described searching

the area where Van Eck took K.M. and testified that they found one

of K.M.’s socks. Finally, an officer testified that he asked B.H. if she

was attacked because the circumstances she described were similar

to K.M.’s statements.

¶ 48 On the seventh day of trial, the court granted the

prosecution’s motion to dismiss the J.Z. and R.M. counts because

the prosecution was concerned it would not have time to present

the evidence. The defense neither objected nor requested a mistrial.

The next day, the prosecution moved to dismiss the K.M. counts.

Defense counsel moved for a mistrial, arguing that no limiting

instruction could cure the prejudice from the jury hearing evidence

about the three dismissed victims.

¶ 49 The court ultimately denied the request after concluding that

(1) the prosecution had not acted in bad faith by presenting opening

statements and some evidence about the counts it later sought to

dismiss, and (2) there was no manifest prejudice to Van Eck. It also

declined to strike evidence relating to K.M. The court twice

instructed the jury not to consider references to the dismissed

27 counts or those victims, and it reiterated that voir dire and opening

statements were not evidence. It also instructed the jury to

consider each count separately.

B. Standard of Review and Applicable Law

¶ 50 As “the most drastic of remedies,” a mistrial “is warranted only

when the prejudice to the defendant is too substantial to be

remedied by other means.” People v. Owens, 2024 CO 10, ¶ 125

(citation omitted). “Because the trial court is in a better position to

evaluate any adverse effect of improper statements or testimony on

a jury, it has considerable discretion to determine whether a

mistrial is warranted.” People v. Williams, 2012 COA 165, ¶ 13

(citation omitted). We will not disturb the trial court’s decision

“absent a gross abuse of discretion and prejudice to the defendant.”

Owens, ¶ 125. A trial court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair. Williams, ¶ 13.

¶ 51 Generally, the erroneous admission of evidence “may be cured

by withdrawing the evidence from the jury’s consideration and

instructing the jury to disregard it.” Owens, ¶ 127 (citation

omitted). Absent evidence to the contrary, we presume that the jury

followed a court’s curative instructions. Id. at ¶ 128.

28 ¶ 52 We also review a trial court’s decision not to strike evidence for

an abuse of discretion. People v. Rodriguez-Morelos, 2022 COA

107M, ¶ 37, aff’d, 2025 CO 2.

¶ 53 We review nonconstitutional preserved errors for harmless

error. Hagos v. People, 2012 CO 63, ¶ 12. Under this standard, we

reverse if an error affected the defendant’s substantial rights,

meaning that it “substantially influenced the verdict or affected the

fairness of the trial proceedings.” Id. (citation omitted). We review

unpreserved errors for plain error. Id. at ¶ 14. Plain error must be

obvious, and “[w]e reverse under plain error review only if the error

‘so undermined the fundamental fairness of the trial itself so as to

cast serious doubt on the reliability of the judgment of conviction.’”

Id. (citation omitted).

C. The Mistrial Ruling

¶ 54 Van Eck first contends that the trial court applied the wrong

legal standard to determine whether a mistrial was warranted.9 We

9 We agree with the People that Van Eck did not preserve his

argument that the trial court applied the wrong legal standard. Although he stated the correct standard, he never objected to the court’s determination under the bad faith and manifest prejudice standard. However, we reject the People’s argument that this constituted invited error.

29 conclude that — even if the court erred — any error was not plain

because the standard the court applied overlapped with the correct

legal standard. See id.

¶ 55 The court’s decision not to grant a mistrial appears to have

been based on the principle that prosecutors must limit their

opening statements to facts they later intend to prove at trial, and

“[r]emarks later proved to be unsupported by the evidence will

ordinarily constitute reversible error if there has been an affirmative

showing of bad faith and manifest prejudice.” People v. Lovato,

2014 COA 113, ¶ 61 (citation omitted). Here, it is not that the

references to K.M., J.Z., and R.M. were unsupported, they were

simply no longer appropriate for the jury’s consideration once the

counts related to these victims were dismissed. And this standard

applies only to opening statements, not to the evidence presented

about K.M.

¶ 56 However, the standard the court used and the appropriate

mistrial framework both consider whether the defendant was

prejudiced by the remarks or the evidence. See Owens, ¶ 125. And

the court fully addressed and rejected Van Eck’s argument

30 regarding the potential prejudice. Therefore, any error did not rise

to the level of plain error.

¶ 57 Next, Van Eck contends that a mistrial was warranted because

the prejudice could not be remedied by a curative instruction. See

id. We disagree. As to the remarks during opening statements and

voir dire about the seven victims and the later dismissed charges,

the jury was repeatedly instructed that opening statements and voir

dire were not evidence. Because there was no evidence to the

contrary, we presume that it followed these instructions. See id. at

¶ 128. And after the counts for the three victims were dismissed,

four victims remained. It is not as if the jury heard about seven

alleged victims and the counts for all but one or two were

dismissed. As such, we cannot say that there was a significant

difference in the prejudicial nature of four versus seven victims.

¶ 58 We also reject Van Eck’s argument that the difference between

the circumstances of the dismissed allegations and those of the

other four victims increased any prejudice. Although R.M.’s and

J.Z.’s allegations concerned events that occurred years prior and in

the context of a relationship with Van Eck, the jury heard no

testimony about them. And the prosecutor referenced the specific

31 allegations only briefly in opening statements. See People v. Salas,

2017 COA 63, ¶ 12 (reasoning that brief references are less

prejudicial).

¶ 59 With respect to K.M., the trial court specifically limited the

officer’s testimony to his investigatory steps and told the jury to

consider K.M.’s allegations in this context and not for their truth.

Although Van Eck highlights the fact that K.M.’s allegations were

different from those of the remaining victims because her case did

not involve an alleged sexual assault, this minimized, rather than

increased, any potential prejudice. Cf. People v. Brown, 2014 COA

130M, ¶ 22 (inadmissible evidence about uncharged misconduct

was prejudicial because it was “more severe[] and more

inflammatory than the evidence concerning the charged offenses”).

And the fact that the jury hung on several charges suggests that it

followed the court’s instructions and was not swayed by prejudice.

See People v. Larsen, 2017 CO 29, ¶ 16 (noting that “a split verdict

is an indication that prejudice did not affect the jury’s verdict”

(citing Martin v. People, 738 P.2d 789, 795-96 (Colo. 1987))).

¶ 60 Finally, there was significant evidence of Van Eck’s guilt.

Even absent the three dismissed victims, the jury heard evidence

32 from four victims recounting a nearly identical pattern of assaults.

Van Eck argues that the case was close because it rested on the

victims’ credibility, but the number of victims and consistency

between their accounts undermine this argument.

¶ 61 Overall, we cannot conclude that the prejudice was so

substantial that it could not be remedied by the court’s limiting

instruction such that a mistrial was warranted. See Owens, ¶ 125.

D. Refusal to Strike Testimony and Evidence

¶ 62 Finally, Van Eck contends that the trial court reversibly erred

by refusing to strike the testimony and evidence regarding K.M. We

conclude that, even if the court erred, any error was harmless. The

evidence about K.M. that the jury heard largely related to the

location of the incident, the officers’ attempts to locate and identify

Van Eck, and their attempts to corroborate K.M.’s presence at the

scene. An officer briefly mentioned that he responded to a

kidnapping and assault, but the court contemporaneously

instructed the jury not to consider that evidence for its truth. The

court also instructed the jury not to consider voir dire, opening

statements, “or references to other charges or alleged victims,” and

33 it reminded the jury to consider each charge separately. (Emphasis

added.)

¶ 63 Given the court’s curative instructions and the admissible

evidence relating to the four remaining victims, we cannot conclude

that the testimony about K.M. substantially influenced the jury’s

verdict. See Hagos, ¶ 12; see also Zapata v. People, 2018 CO 82,

¶ 67 (concluding that an error was harmless where there was

strong evidence of guilt).

IV. Cross-Examination About Prostitution

¶ 64 Van Eck next argues that the trial court erred by refusing to

allow him to cross-examine the victims about whether they engaged

in consensual prostitution with him. He asserts that this violated

his constitutional right to present a defense and to cross-examine

witnesses. He also contends that the court’s ruling violated his

right to remain silent by forcing him to testify. We conclude that

the court either did not err or did not reversibly err.

¶ 65 Before trial, Van Eck moved to admit certain evidence under

the rape shield statute. See § 18-3-407, C.R.S. 2025. As relevant

here, he sought to admit the fact that the alleged victims were sex

34 workers as “necessary context for jurors.” In an attached affidavit,

he contended that, pursuant to discovery, the complaint, and the

prosecutor’s pretrial arguments, five of the seven original victims

“were all self-employed as sex workers on the date of the offense.”

At a pretrial hearing, the prosecutor had referred to the women as

“prostitutes” or “single mothers” or being “in a [vulnerable] position

where [Van Eck] [was] threatening to deport them.”

¶ 66 At a hearing on the motion, defense counsel said that one

victim “would fully self-identify as being a sex worker,” but the

others were not as explicit. When the court asked for evidence that

the victims engaged in prostitution with Van Eck, defense counsel

said that sex workers typically use vague terms such as “working”

and are hesitant to admit the fact to law enforcement, so the

inference comes from “the location [and] the people who they are

working with.” For example, defense counsel asserted that S.A. was

staying with a “working girl.” At a later hearing, defense counsel

said B.H. told police she was a sex worker, and the prosecutor

acknowledged that B.H. said this in body camera footage and that

her criminal record had “entries for prostitution.” The court found

35 that defense counsel had not made a sufficient offer of proof under

the rape shield statute to ask if the victims were sex workers.

¶ 67 At trial, S.A. testified three times that she told Van Eck she

was not a sex worker. After S.A. testified, the prosecutor asked the

court to revisit its prior ruling precluding inquiry into whether the

victims were sex workers, and the court reiterated that there was

not a sufficient offer of proof and no good faith basis to ask those

questions. Defense counsel offered to discuss its good faith basis

with the court ex parte.

¶ 68 Defense counsel then filed a written objection to the court’s

limitation on the proposed cross-examination. The court denied

Van Eck’s request to make a midtrial, ex parte offer of proof. The

court also explained that it was not necessarily operating under the

rape shield statute but was requiring at least a good faith basis and

offer of proof.

¶ 69 The court later reiterated that it needed a good faith basis and

an offer of proof before it would allow the proffered questions.

Defense counsel argued that an offer of proof was not required

because the questions went directly to Van Eck’s defense and the

victims’ biases or motives. Counsel also asked to limit the inquiry

36 to “the night of” the incidents, not the victims’ history of sex work.

Again, the court asked for a good faith basis, and defense counsel

said B.H. had admitted she was a sex worker in New Mexico and

Colorado, and Van Eck visited an ATM the night of one of the

assaults. Again, the court found this offer insufficient.

¶ 70 Ultimately, Van Eck decided to testify. Defense counsel

asserted that his decision was based on the court’s ruling

precluding cross-examination about whether the victims “were

actively engaged in prostitution on the night of these events.” Van

Eck testified that the victims engaged in consensual prostitution

with him.

¶ 71 “The scope and limits of cross-examination are matters within

the sound discretion of the trial court.” People v. Conyac, 2014

COA 8M, ¶ 91. Generally, we review a trial court’s ruling on cross-

examination for an abuse of discretion. Id. However, “it is

constitutional error to limit excessively a defendant’s cross-

examination.” Id. at ¶ 92. “If cross-examination is erroneously and

excessively limited,” we review for constitutional harmless error and

reverse unless the error is harmless beyond a reasonable doubt. Id.

37 “An erroneous evidentiary ruling may rise to the level of

constitutional error if it deprived the defendant of any meaningful

opportunity to present a complete defense.” Id. at ¶ 93. But this

occurs only “where the defendant was denied virtually his only

means of effectively testing significant prosecution evidence.” Id. If

the defendant was not so deprived, we review only for

nonconstitutional harmless error. Id. at ¶ 94.

¶ 72 Under the rape shield statute, a witness’s or victim’s “prior or

subsequent sexual conduct” is presumed irrelevant except under

limited circumstances not applicable here. § 18-3-407(1). To

overcome this presumption of irrelevance, the party seeking to

introduce evidence of prior or subsequent sexual conduct must

follow specific procedures, including filing a written motion with an

affidavit stating the offer of proof and participating in an in camera

hearing. § 18-3-407(2)(a)-(e).

¶ 73 However, even absent the rape shield statute’s mandates,

“[q]uestions directed toward impeaching a witness must be asked in

good faith.” People v. Pratt, 759 P.2d 676, 684 (Colo. 1988); see

also People v. Vialpando, 804 P.2d 219, 223 (Colo. App. 1990)

(“Defense counsel may not properly propound to a witness

38 questions which can cause a doubt in the jury’s mind as to the

witness’ credibility when there is no reasonable basis in fact for that

interrogation.”); People v. McFee, 2016 COA 97, ¶ 64 (no abuse of

discretion in precluding questions where the defendant “did not

present a good faith basis to ask the question”). Finally, under CRE

103(a)(2), we will not find error from a ruling that excludes evidence

unless — as relevant here — “the substance of the evidence was

made known to the court by offer or was apparent from the context

within which questions were asked.”

C. Analysis

¶ 74 First, we conclude that the trial court erred to the extent that

it precluded the challenged cross-examination under the rape shield

statute. On appeal, Van Eck challenges only the precluded

examination about whether the victims engaged in prostitution with

him during the alleged assaults. The rape shield statute applies to

“prior or subsequent sexual conduct,” not to sexual conduct that

was part of (or led to) the charged offense. § 18-3-407(1); see also

State v. Jones, 230 P.3d 576, 581 (Wash. 2010) (precluding

evidence of sexual conduct on the night of the alleged incident

would “effectively read[] the word ‘past’ out of the [rape shield]

39 statute”). The trial court’s reliance on People v. Bray, 879 P.2d 410

(Colo. App. 1993), was misplaced. There, the defendant sought to

introduce evidence of the victim’s subsequent acts of prostitution

with someone other than the defendant. Id. at 415-16. Here, by

contrast, Van Eck sought to elicit that the victims engaged in

consensual prostitution with him at the time of the alleged

incidents. Thus, the rape shield statute did not apply.

¶ 75 However, because the court indicated that its ruling was not

necessarily (or solely) predicated on the rape shield statute, we

consider whether the challenged testimony was otherwise

inadmissible with respect to each victim. We do not consider the

admissibility of the evidence related to M.P. because we have

already reversed all Van Eck’s convictions pertaining to her.

¶ 76 As to S.A., she testified multiple times that she told Van Eck

she was “not a hooker” and said, “If he would have asked me if I

was a working girl, I would have said hell no. I never would have

got into his truck.” Van Eck does not point to what additional

evidence he was precluded from eliciting. And because she denied

being a sex worker, there was no reason to explicitly ask if she

40 engaged in prostitution with Van Eck on the night in question.

Therefore, we perceive no error.

¶ 77 Next, as to D.F., Van Eck offered no evidence that she was a

sex worker at any point, including on the night of the assault. On

appeal, Van Eck emphasizes that the women got into his truck

voluntarily late at night, they did not work regular jobs or were

unemployed, and they were unhoused. He also argues that D.F.

called him her “date,” which he asserts is a common term for

prostitution. But not only was this not part of his offer of proof, the

trial court asked D.F. what she meant by a “date,” and she said,

“When you go with somebody and you go out to eat, you know, you

go and you just get to know them and you[] just go on a date.”

¶ 78 Even if an offer of proof was not required under the rape shield

statute, defense counsel needed a good faith basis to ask the

challenged questions. See Vialpando, 804 P.2d at 223; McFee, ¶ 64.

Here, there was no good faith basis to believe that D.F. was a sex

worker in general or was engaged in sex work on the night in

question. The mere fact that she was walking late at night in an

area known for prostitution and lacked stable housing or a steady

income was insufficient. Therefore, Van Eck failed to show that he

41 had a good faith basis to cross-examine D.F. about whether she

engaged in prostitution with him, and the court did not err by

precluding this inquiry.

¶ 79 We also reject Van Eck’s contention that the court should have

allowed him to make an ex parte offer of proof. He cites no

controlling authority for the proposition that he was entitled to an

ex parte hearing or that the court erred by prohibiting one. And the

case he cites in support of his argument is distinguishable. In

People v. Kilgore, 2020 CO 6, ¶¶ 28-29, the court held that a trial

court erred by compelling the defendant to disclose his exhibits

before trial. The supreme court reasoned that Crim. P. 16 did not

require the disclosure. Kilgore, ¶ 26. Thus, while it concluded that

the disclosure order improperly compelled the defendant to share

his trial strategy and defense, its reasoning was also predicated on

the absence of a rule requiring such disclosure. Id. at ¶ 29.

¶ 80 Conversely, ex parte communications are explicitly prohibited.

“[T]rial judges must take great care to avoid ex parte

communications with a party, attorney, or individual affiliated with

a party concerning pending judicial proceedings.” Wilkerson v. Dist.

Ct., 925 P.2d 1373, 1377 (Colo. 1996); see also C.J.C. 2.9(A)

42 (prohibiting judges from having ex parte communications except

under limited circumstances or with the parties’ consent). Because

the prosecution did not consent and none of the exceptions to the

prohibition on ex parte communications applied, the court did not

err by denying Van Eck’s request.

¶ 81 Finally, we turn to B.H. Both parties told the court that B.H.

admitted to engaging in sex work. The trial court concluded that

this did not provide a good faith basis to ask whether she was

engaged in sex work with or offered sex work to Van Eck. We

disagree. We do not think that Van Eck had to establish that B.H.

was engaged in sex work on the night in question to ask whether

she engaged in sex work with Van Eck. This would impose a much

higher burden than a good faith basis demands. The recorded

admission that she was a sex worker constituted a sufficient good

faith basis to ask if she engaged in sex work with Van Eck on the

night in question. To conclude otherwise would require parties to

have near definitive proof of the answer to every question before

asking it. A good faith basis is not such a high bar.

¶ 82 However, we reject Van Eck’s contention that this error denied

him an opportunity to present a complete defense or to effectively

43 cross-examine the witness. First, he testified that the women

consented to the sexual contact and were sex workers whom he

solicited for prostitution, and the jury was instructed on his

consent defense. See People v. Lanari, 926 P.2d 116, 122 (Colo.

App. 1996) (the defendant was not precluded from presenting a

defense when he testified in support of his defense, and the jury

was instructed on the defense). And Van Eck’s failure to make a

sufficient offer of proof to elicit the precluded testimony was not an

error attributable to the court. See Vialpando, 804 P.2d at 222 (the

defendant was not denied a fair trial when he failed to make

adequate offers of proof).

¶ 83 But even assuming that the error in restricting B.H.’s cross-

examination is reviewable for constitutional harmless error, we

conclude that the error was harmless beyond a reasonable doubt.

We have already reversed Van Eck’s sexual assault conviction

related to B.H., and the jury did not receive a kidnapping count for

her. Therefore, the only relevant convictions are the conviction for

theft and the conviction for soliciting prostitution. Whether B.H.

and Van Eck’s encounter began as consensual prostitution was

irrelevant to his theft conviction. As to the solicitation conviction,

44 even if Van Eck had not testified, the defense theory from opening

statements through closing argument was always that Van Eck’s

encounter with all the women was consensual prostitution. In light

of this consistent theme, it is very unlikely that cross-examining

B.H. about whether she engaged in prostitution with Van Eck

would have changed the result.

¶ 84 For similar reasons, we conclude that Van Eck was not forced

to choose between exercising his right not to testify and his rights to

cross-examination and to present a complete defense. We already

addressed his insufficient offer of proof, which he was not entitled

to make ex parte. He made a strategic decision to testify rather

than making his offer of proof in front of the prosecution, but that

resulted from his choices, not the court’s error. And although he

made a sufficient offer of proof regarding B.H., we cannot conclude

that the court’s evidentiary ruling unconstitutionally compelled his

testimony. See United States v. Caira, 737 F.3d 455, 460-61 (7th

Cir. 2013) (rejecting a nearly identical argument “because the

defendant retains the option of standing on his right not to testify

and seeking appellate correction of the evidentiary ruling”); State v.

45 Rivera, 2014 WI App 110, ¶ 30 (“‘[A] defendant is not compelled to

testify in the face of an evidentiary error.”).

V. Cumulative Error

¶ 85 Finally, we do not review Van Eck’s contention that cumulative

error requires reversal. In two sentences, he states the standard of

review and asserts that “[a] new trial is required because the

aggregate impact of numerous errors . . . deprived [him] of a fair

trial.” Because this argument is underdeveloped, we do not

consider it. See People v. Simpson, 93 P.3d 551, 555 (Colo. App.

2003).

VI. Remaining Issues on Appeal

¶ 86 We do not address Van Eck’s challenge to his sexual assault

sentences because we reverse the underlying convictions. We also

do not address the People’s cross-appeal, which relates to the video

of M.P. that is inadmissible on retrial.

VII. Disposition

¶ 87 We reverse Van Eck’s sexual assault convictions (counts 1, 4,

and 11), his kidnapping and solicitation convictions related to M.P.

(counts 12 and 13), and his convictions for attempted sexual

assault and unlawful sexual contact as to D.F. (counts 8 and 9).

46 We affirm his remaining convictions. We remand the case for a new

trial consistent with this opinion.

JUDGE J. JONES and JUDGE DUNN concur.