Peo v. Warmker

• Court: Colorado Court of Appeals
• Decided: February 26, 2026
• Docket: 23CA0394
• Status: Unpublished

Opinion

23CA0394 Peo v Warmker 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0394 El Paso County District Court No. 16CR1309 Honorable Erin Sokol, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gary Lynn Warmker,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE FOX Kuhn and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026

Philip J. Weiser, Attorney General, Trina A. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Gary Lynn Warmker, appeals his conviction for one

count of sexual assault on a child as part of a pattern of abuse. For

the following reasons, we affirm the judgment of conviction but

remand so the trial court may correct the mittimus.

I. Background

¶2 The charges in this case stem from T.W.’s report that

Warmker, an extended family member, sexually assaulted her from

2003 to 2006 when she was four to seven years old. The incidents

occurred around Christmas when T.W. visited her grandparents’

house in Colorado Springs. T.W. alleged that during these visits,

Warmker would place her on his lap, touch her chest, and reach

down her pants to touch her genitals outside and inside of her

underwear. T.W. recalled the abuse stopping when she was seven

because as she got older, she realized that “what’s happening [was]

not okay” and stayed close to her parents at holiday gatherings.

¶3 When T.W. was sixteen years old, she disclosed the abuse to a

teacher. After learning that the teacher had a duty to report the

abuse, T.W. also told her mother. T.W.’s mother then called T.W.’s

aunt, who became very upset and disclosed that Warmker had also

1 placed her on his lap and touched her inappropriately when she

was a child.

¶4 The prosecution charged Warmker with six counts of sexual

assault on a child - pattern of abuse, § 18-3-405(1), (2)(d), C.R.S.

2025. In People v. Warmker, (Colo. App. No. 17CA1267, Aug. 6,

2020) (not published pursuant to C.A.R. 35(e)), a division of this

court overturned Warmker’s first conviction on four counts and

remanded the case for retrial. The prosecution then dismissed two

counts during the second trial and tried the remaining two counts

to verdict. The jury convicted Warmker on one count for a 2003

incident but acquitted him on the other, and the court sentenced

him to ten years to life in the Department of Corrections’ custody.

On appeal, Warmker argues that the evidence was insufficient to

find a pattern of abuse and challenges the admissibility of a

detective’s testimony. He also asks that we correct the mittimus to

accurately reflect the jury’s verdict. We affirm, but we agree the

mittimus must be corrected.

2 II. Pattern of Abuse

A. Additional Background

¶5 T.W. claimed that the abuse occurred multiple times and

always in the same way: Warmker would place her on his right leg,

hold her hip tightly with his right hand, and touch her over and

beneath her underwear with his left hand. T.W.’s aunt testified that

Warmker abused her in a similar manner. Another relative also

testified that in 2007, she found Warmker sitting in the

grandparents’ basement with a three- or four-year-old girl on his

lap. According to this relative, Warmker was holding the girl

“awkwardly,” was flushed and breathing heavily, and pushed the

girl off his lap as if he had been caught doing something wrong.

¶6 T.W. admitted that her memories “blurred together” and she

did not remember much detail. She did recall one specific incident

when she was “around 6 or 7” years old and wearing a purple shirt

and jeans. While playing with a veterinary dog toy, Warmker

allegedly picked T.W. up, placed her on his lap, and touched her

inappropriately. A photo introduced at trial showed T.W. wearing a

purple shirt and jeans one year at Christmas, but evidence also

proved that Warmker did not attend the Christmas celebration

3 when T.W. was ages six and seven. The prosecution dismissed two

of the four counts during the second trial because of this evidence.

The jury then convicted Warmker on one count based on a 2003

incident but acquitted on the other based on a 2004 incident.

¶7 Warmker argues on appeal that the evidence was insufficient

to find a pattern of abuse and asks us to remand the case for

resentencing. He relies on the fact that the jury acquitted him on

one of only two remaining charges and argues this rendered finding

a pattern impossible because the jury concluded no act occurred in

2004. He also asserts that T.W.’s testimony was too vague to

support the jury’s conclusion. The People counter that they were

not required to prove a specific date of the second incident and that

the jury only needed to conclude beyond a reasonable doubt that a

second act occurred ten years before or any time after the predicate

act, and the evidence supports this finding. For slightly different

reasons, we agree with the People.

B. Standard of Review

¶8 “[S]ufficiency of the evidence claims may be raised for the first

time on appeal and are not subject to plain error review.” McCoy v.

People, 2019 CO 44, ¶ 27. Thus, we review unpreserved sufficiency

4 claims de novo to determine whether the evidence, “viewed as a

whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant is guilty of the charge beyond a reasonable

doubt.” People v. Harrison, 2020 CO 57, ¶ 32 (citation omitted).

However, we “may not serve as a thirteenth juror and consider

whether [we] might have reached a different conclusion than the

jury.” Id. at ¶ 33.

C. Applicable Law and Analysis

¶9 A defendant who “knowingly subjects another not his or her

spouse to any sexual contact commits sexual assault on a child if

the victim is less than fifteen years of age and the actor is at least

four years older than the victim.” § 18-3-405(1). Sexual assault on

a child becomes a class 3 felony if the defendant “commits the

offense as a part of a pattern of sexual abuse.” § 18-3-405(2)(d). A

pattern is evidenced by “two or more incidents of sexual contact

involving a child when such offenses are committed by an actor

upon the same victim,” § 18-3-401(2.5), C.R.S. 2025, but “[n]o

specific date or time must be alleged” to find the additional incident.

§ 18-3-405(2)(d). A pattern of sexual abuse is a sentence enhancer

5 that, like the underlying offense, the prosecution must prove

beyond a reasonable doubt. People v. Honeysette, 53 P.3d 714, 716

(Colo. App. 2002).

¶ 10 T.W. recalled only one specific memory of the abuse and

admitted that others blurred together. However, our supreme court

recognizes that “children often have difficulty recollecting,

reconstructing, and identifying the specific incidents and dates of

the alleged acts of sexual misconduct.” Erickson v. People, 951 P.2d

919, 922 (Colo. 1998). Despite her hazy memory, T.W. detailed how

Warmker abused her, provided a general timeframe, and stated that

multiple incidents occurred in the living room and basement. Other

family members’ testimony corroborated T.W.’s recollection. Based

on this evidence, the jury reasonably concluded that two or more

incidents of sexual contact occurred. See id. (“[I]t is unreasonable

to require exactitude from any victim, child or adult, in crimes

involving repeated instances of abuse occurring over a prolonged

period of time,” and there are “relaxed specificity requirements”

because of this). The evidence was sufficient for the jury to find

that Warmker engaged in a pattern of abuse, and we will not

disturb its finding.

6 III. Arrest Rate Testimony

¶ 11 Lieutenant Van’t Land testified at trial about his qualifications

and his role as the lead investigator in the case. Van’t Land

explained that he led or assisted on roughly 350 cases involving

crimes against children. The prosecutor then asked, “[F]or every

one of those cases that you were part of an investigation on, did

those always end up in arrest?” Van’t Land responded, “No.

Crimes against children can be very difficult cases. My arrest rate

was a little over 35 percent.”

¶ 12 A similar exchange occurred in the first trial. In Warmker, No.

17CA1267, slip op. at ¶ 83, a division of this court concluded that

Van’t Land’s testimony — that “not all investigations result in an

arrest” — served no purpose except to imply that Van’t Land

believed Warmker was guilty. The division deemed the testimony

inadmissible on retrial because a witness cannot opine on the

defendant’s guilt. Id. at ¶ 84; see People v. Penn, 2016 CO 32, ¶ 36.

Despite this, the prosecutor again elicited the testimony and Van’t

Land supplemented his answer with arrest rate information.

7 Defense counsel did not contemporaneously object to the

statement.

¶ 13 On appeal, Warmker asks that we follow our divisional

colleagues, Warmker, No. 17CA1267, and hold the testimony

inadmissible. The People, while acknowledging the law of the case

doctrine, invite us to reconsider the prior ruling because the

testimony arose under changed conditions. The People claim that

the testimony became relevant during the second trial because

defense counsel “began laying the groundwork” in voir dire for a

theory that the case was inadequately investigated. While we agree

with the prior division’s conclusion, we cannot say that any claimed

error undermined the fundamental fairness of the trial or cast

doubt on the reliability of the conviction. See People v. Conyac,

2014 COA 8M, ¶ 54.

¶ 14 Because defense counsel did not object at trial, the issue is

unpreserved. We review unpreserved issues for plain error. Id. at

¶ 53. Under this standard, the defendant bears the burden of

establishing that at the time the error arose, “it was so clear cut

and so obvious that a trial judge should have been able to avoid it

8 without the benefit of objection.” Id. at ¶ 54. The defendant must

also establish that the error “undermined the fundamental fairness

of the trial itself so as to cast serious doubt on the reliability of the

conviction.” Id.

¶ 15 Under the law of the case doctrine, “prior relevant rulings

made in the same case are to be followed unless such application

would result in error or unless the ruling is no longer sound due to

changed conditions.” People v. Dunlap, 975 P.2d 723, 758 (Colo.

1999). When applied to the court’s power to reconsider its own

prior rulings, the doctrine is a “discretionary rule of practice.” Id.

(citation omitted). However, trial courts have no discretion to

disregard appellate rulings. People v. George, 2017 COA 75, ¶ 32.

¶ 16 We are not persuaded by the People’s argument that

introducing a theory during voir dire amounts to a changed

condition at trial. See People v. Wilson, 2013 COA 75, ¶¶ 12-13

(voir dire is not intended as an opportunity to prime jurors to accept

the defendant’s theory of the case). Thus, we adopt the prior

division’s conclusion in Warmker, No. 17CA1267, that the

testimony was inadmissible.

9 ¶ 17 We acknowledge that different judges presided over the first

and second trial and it is impractical to expect the succeeding judge

to know each evidentiary ruling in the earlier trial.1 But here the

judge had the benefit of the prior division’s opinion deciding the

issue, so the error in admitting the testimony was obvious. People

v. Ujaama, 2012 COA 36, ¶ 42 (for purposes of the plain error rule,

an error may be obvious if the issue has been decided by a division

of the court of appeals). Even so, the testimony did not undermine

the fundamental fairness of the trial or cast doubt on the reliability

of the conviction. See Conyac, ¶ 54. The challenged testimony was

a single statement in a six-day trial. See Domingo-Gomez v. People,

125 P.3d 1043, 1053 (Colo. 2005) (comments that are “few in

number” or “momentary in length” do not warrant reversal under

the plain error standard (citation omitted)). Moreover, the jury

heard from T.W. and her aunt about the abuse they endured, as

well as testimony from the family member who saw Warmker

1 It is ultimately counsel’s responsibility to object to evidence it

knows to be improper. See People v. Acosta, 2014 COA 82, ¶ 136 (Berger, J., concurring in part and dissenting in part) (“It is the responsibility of . . . counsel . . . to make appropriate objections and to determine how to properly offer the evidence they wish to present.”).

10 awkwardly holding a young girl on his lap. See People v. Alengi,

114 P.3d 11, 17 (Colo. App. 2004) (concluding that improper

testimony did not undermine the fundamental fairness of the trial

or cast doubt on the reliability of the conviction in light of other

evidence of guilt), aff’d, 148 P.3d 154 (Colo. 2006). Finally, the jury

acquitted Warmker on one count, indicating that the jurors parsed

the evidence and were not unduly swayed by Van’t Land’s

statement. See People v. Quillen, 2023 COA 22M, ¶ 39; see also

People v. Larsen, 2017 CO 29, ¶ 16 (concluding that a split verdict

indicates that improper evidence did not influence the jury). Thus,

any claimed error does not warrant reversal.

IV. Calendar Testimony

¶ 18 Van’t Land testified about his process for uncovering evidence

that corroborates or disproves a child victim’s statements. Van’t

Land explained that because the alleged abuse occurred around

Christmas when T.W. visited her grandparents, he interviewed

T.W.’s grandmother. During one of their meetings, T.W.’s

grandmother brought her wall calendars dating back to the early

2000s. Van’t Land testified that on those calendars, she “had

11 written in when [Warmker] was going to be arriving from Kansas.

Usually a day or two or three before Christmas. Which helped

corroborate that [Warmker] was out there at the Christmases just

as [she] was saying, just as [T.W.] was remembering.” Defense

counsel did not object to the statement.

¶ 19 On appeal, Warmker argues that the trial court should have

excluded this testimony because Van’t Land’s use of the word

“corroborate” amounted to Van’t Land opining that T.W. was telling

the truth, and thus impermissibly bolstered her credibility. The

People counter that the testimony was relevant to Van’t Land’s

investigative process and Van’t Land did not imply that the

calendars corroborated T.W.’s allegations of sexual assault —

merely that Warmker was present or absent on certain

Christmases. We agree with the People.

¶ 20 We review unpreserved issues for plain error, applying the

same legal principles articulated in Part III.B. Conyac, ¶¶ 53-54.

¶ 21 Under CRE 608, after a witness’s character for truthfulness

has been attacked, the court may admit evidence tending to show

12 that the witness has a truthful character. People v. Relaford, 2016

COA 99, ¶ 26. However, a witness is prohibited from testifying

“that another witness is telling the truth on a particular occasion.”

Venalonzo v. People, 2017 CO 9, ¶ 32. Doing so amounts to

improper bolstering, which often arises in child sex assault cases

when there are no eyewitnesses. See People v. West, 2019 COA

131, ¶ 39. The prohibition on improper bolstering applies to direct

and indirect comments on a child victim’s truthfulness. Venalonzo,

¶ 32.

¶ 22 We fail to see how Van’t Land’s use of the word “corroborate”

amounts to him opining on the truthfulness of T.W.’s allegations. It

served the relevant purpose of helping the jury understand Van’t

Land’s investigation and merely tended to show that Warmker

attended certain Christmases. This is not the type of improper

bolstering our case law prohibits. Cf. id. at ¶ 35 (concluding that a

forensic interviewer’s testimony that the victims she interviewed

exhibited behaviors similar to other child sex assault victims was

improper); People v. Wittrein, 221 P.3d 1076, 1081-82 (Colo. 2009)

(deeming inadmissible a social worker’s testimony that, in her

opinion, children the victim’s age were not capable of fabricating

13 allegations of sexual abuse). Given this distinction, any error in

admitting the evidence was neither clear nor obvious. See Conyac,

¶ 54.

V. Mittimus Correction

¶ 23 Finally, Warmker argues — and the People concede — that we

should correct the mittimus. The mittimus reflects a conviction on

Count 2: sexual assault on a child as part of a pattern of abuse.

The jury, however, acquitted Warmker of this charge. We therefore

remand so the trial court may amend the mittimus to reflect the

judgment of conviction only as to Count 1. See Crim. P. 36; People

v. Wood, 2019 CO 7, ¶ 39 (the proper remedy for clerical errors in

the mittimus is to correct the error).

VI. Disposition

¶ 24 For the reasons stated, we affirm the judgment of conviction

but remand so the trial court may correct the mittimus.

JUDGE KUHN and JUDGE SULLIVAN concur.