22CA0371 Peo v Whitehorn 03-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0371 City and County of Denver District Court No. 19CR116 Honorable Ericka F.H. Englert, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Byron L. Whitehorn,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE JOHNSON Lipinsky and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Byron L. Whitehorn (Whitehorn), appeals the
judgment of conviction entered on jury verdicts finding him guilty of
eight counts of sexual assault involving four victims. On appeal,
Whitehorn contends that the district court erred by (1) allowing the
prosecutor to engage in misconduct when she linked Whitehorn’s
right to remain silent with the jury asking itself why Whitehorn had
been in lower downtown Denver (LoDo) — the location of the
assaults — at night; (2) admitting his Uber driving records from two
years before he was charged; (3) permitting the victims to testify
about the impact of the assaults; and (4) allowing the initial
investigating officers to testify about their screening process for
sexual assault cases because that testimony suggested he was
guilty. He also alleges cumulative error. We discern no reversible
errors and, thus, affirm.
I. Background
¶2 Four women, who had never previously met Whitehorn or each
other, accused him of sexual assault in four separate incidents
between April 2017 and December 2018. All four victims — L.L.,
T.M., N.H., and P.D. — had been drinking with friends at bars
located in LoDo on the nights of the incidents. The victims had
1 become separated from their friends or wanted to return home early
and were waiting on the street for an Uber. The victims testified
that they were very intoxicated and a man picked them up and took
them to his car. They each passed out while in the car and had
memories of waking up while a man was sexually assaulting them.
The women underwent sexual assault examinations and DNA
samples were taken from all the victims.
¶3 Before P.D.’s assault, which was the last of the assaults with
which Whitehorn was charged, no suspect or suspects had been
identified in connection with the other three victims. During an
examination of P.D.’s phone, law enforcement located the name
“Byron” and a phone number that had been entered around the
time of P.D.’s sexual assault. P.D. did not recognize the name or
the number. The phone number was not associated with a cell
phone account, so the police left a voicemail. Eventually Whitehorn
called back from a different number and the police asked him to
come to the station to provide a saliva sample. Based on the caller
identification number associated with Whitehorn’s call, law
enforcement discovered that a car registered to Whitehorn matched
the four victims’ description of the vehicle that the person who
2 sexually assaulted them had driven. Whitehorn provided a saliva
sample that was later matched to the DNA samples taken during
the victims’ examinations.
¶4 The prosecution charged Whitehorn with eight counts of
sexual assault — for each victim, one count of sexual assault
(submission against will), § 18-3-402(1)(a), C.R.S. 2018,1 and one
count of sexual assault (victim incapable of appraising nature of
conduct), § 18-3-402(1)(b), both of which are class 4 felonies, § 18-
3-402(2). Whitehorn’s theory of defense was that he believed the
sexual intercourse with the four women was consensual, following
random encounters at bars in LoDo.
¶5 The jury convicted Whitehorn as charged. The district court
merged the four incapable of appraising conduct counts into the
four overcoming the victim’s will counts and sentenced him to four
consecutive sentences of six years to life in the custody of the
1 The definition of sexual assault in section 18-3-402(1)(a) was
amended in 2022. Ch. 41, sec. 1, § 18-3-402, 2022 Colo. Sess. Laws 214. The prior version of the statute was in effect at the time of the events at issue in this case; therefore, we apply the 2018 version of section 18-3-402 throughout this opinion.
3 Department of Corrections for a controlling sentence of twenty-four
years to life.
II. Prosecutorial Misconduct
¶6 Whitehorn contends that the prosecutor engaged in
misconduct when she asserted during rebuttal closing that the jury
could ask itself why Whitehorn was in LoDo even though he had
invoked his right to remain silent. We agree that the prosecutor’s
statement was improper. But we conclude that the statement was
harmless beyond a reasonable doubt.
A. Standard of Review
¶7 We engage in a two-step analysis when reviewing prosecutorial
misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo.
2010). “First, [we] determine whether the prosecutor’s questionable
conduct was improper based on the totality of the circumstances.”
Id. Second, we decide “whether such actions warrant reversal
according to the proper standard of review.” Id.
B. The Prosecutor Engaged in Misconduct
¶8 During rebuttal, the prosecutor said the following:
[W]hen you go back into that jury room you are instructed to take all of this evidence that
4 you’ve heard and consider it in light of your own experiences in life.
So let’s talk about that. Right. We as human beings understand certain patterns of behavior, certain experiences. What’s really critical about that is when you think about who this person is, this is a man who was fifty years old, nearly twice the age of each and every single one of these women, who is married, young kids, and while he has the absolute right to remain silent, that doesn’t mean that when you go back into that jury room, does that mean you can’t ask yourself what is he doing there?
(Emphasis added.) Whitehorn contends that the prosecutor’s
statement suggested that, without an explanation as to “what [he
was] doing there,” the jury could use his silence to infer he was
guilty. Defense counsel objected, arguing that the statement was
an inappropriate comment on Whitehorn’s constitutional right to
remain silent. Although the court cautioned the prosecutor, it
overruled defense counsel’s objection.
¶9 We conclude that the court erroneously allowed the prosecutor
to engage in misconduct by not striking the statement. It is
axiomatic that a prosecutor may not argue that a “defendant’s
silence implies that he or she is guilty.” People v. Gibson, 203 P.3d
571, 577 (Colo. App. 2008); see also Dunlap v. People, 173 P.3d
5 1054, 1080 (Colo. 2007) (the prosecution may not urge the jury to
use a defendant’s exercise of the right to remain silent to infer
guilt). Thus, we conclude the prosecutor’s comment is problematic
for four reasons.
¶ 10 First, the prosecutor’s comment told the jury that Whitehorn
was married with children, when there was no testimony before the
jury about Whitehorn having kids. There had been testimony that
Whitehorn’s wife owned the vehicle that Whitehorn drove on the
nights of certain of the assaults. But the only reference we see in
the record to Whitehorn having children is defense counsel’s offer of
proof, made outside the presence of the jury, that, if Whitehorn
were to testify, he would say one of the victims had not been upset
about having sex with him until she saw a picture of his children in
his home. See People v. Nardine, 2016 COA 85, ¶ 59 (a prosecutor
should not refer to facts not in evidence); see also People v. McMinn,
2013 COA 94, ¶ 62 (same).
¶ 11 Second, the prosecutor linked Whitehorn’s right to remain
silent with a lack of explanation for why he might have been “there”
— meaning she wanted the jury to use its common sense and ask
itself why a man who was married with young children was trolling
6 LoDo, where the assailant picked up the victims, instead of being at
home with his family. True, the prosecutor did not say that the jury
could use Whitehorn’s silence to convict him. But the statement
sought to equate his silence with an inference that he was guilty.
In other words, because he did not testify regarding the reason for
his presence in the area, the jury could — and should — infer the
worst. See Gibson, 203 P.3d at 577 (The test “for whether a
prosecutor’s argument constitutes a comment on the defendant’s
failure to testify is whether the comment directs the jury’s attention
to the defendant’s silence as a means of implying guilt.”).
¶ 12 Third, the comment was unnecessary. “[B]ecause arguments
delivered in the heat of trial are not always perfectly scripted,
reviewing courts accord prosecutors the benefit of the doubt when
their remarks are ambiguous or simply inartful.” People v. Samson,
2012 COA 167, ¶ 30. But in our view, this was not simply
misspeaking or inartful phrasing. A prosecutor has latitude to
present arguments based on facts in evidence, ask the jury to make
reasonable inferences drawn from those facts, and respond to the
defendant’s arguments. People v. Maloy, 2020 COA 71, ¶ 61. The
prosecutor could have made her point without referring at all to
7 Whitehorn’s right to remain silent. Specifically, the prosecutor
could have posed the questions: Why was Whitehorn in the area
when married? Should he not be at home with them?
¶ 13 Finally, this is not a situation in which defense counsel
opened the door in closing argument so that the prosecutor was
entitled to respond in kind during rebuttal closing. See People v.
Lovato, 2014 COA 113, ¶ 63 (“In considering whether prosecutorial
remarks are improper, the reviewing court must weigh the effect of
those remarks on the trial, and also take into account defense
counsel’s ‘opening salvo.’”) (citation omitted). We see nothing in
defense counsel’s closing argument as an “opening salvo” on
Whitehorn’s right to remain silent.
¶ 14 Nor was this a situation in which the prosecutor was referring
to questions that Whitehorn had refused to answer or had answered
by leaving out material information when talking with police. For
example, a prosecutor may comment that a defendant spoke at
length to police but did not discuss or disclose certain information.
See People v. Lewis, 2017 COA 147, ¶ 36; see also Berghuis v.
Thompkins, 560 U.S. 370, 388-89 (2010) (“[A] suspect who has
received and understood the Miranda warnings, and has not
8 invoked his Miranda rights, waives the right to remain silent by
making an uncoerced statement to the police.”); cf. People v.
Quintana, 665 P.2d 605, 611 n.7 (Colo. 1983) (“The failure to make
any statement should be distinguished from the situation where an
accused does make a statement to law enforcement officials but the
statement omits significant details which are later included in a
subsequent statement. In the latter situation the accused has not
elected to remain silent, but instead has waived that right and
made a statement.”).
C. The Error Was Harmless Beyond a Reasonable Doubt
¶ 15 Although we conclude the court allowed the prosecutor to
engage in misconduct, we conclude the error was harmless beyond
a reasonable doubt.
¶ 16 “Only those errors ‘that specifically and directly offend a
defendant’s constitutional rights are “constitutional” in nature.’”
People v. Flockhart, 2013 CO 42, ¶ 20 (quoting Wend, 235 P.3d at
1097); see People v. Payne, 2019 COA 167, ¶ 30. This includes an
“impermissible comment on a defendant’s exercise of a specific
constitutional right, such as his right not to testify, his right to be
9 tried by a jury, or his right to post-arrest silence.” Wend, 235 P.3d
at 1097 (quoting Crider v. People, 186 P.3d 39, 42 (Colo. 2008)).
¶ 17 Under constitutional harmless error review, the prosecution
bears the burden of proving that the error was harmless beyond a
reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11. “An error is
not harmless beyond a reasonable doubt ‘[i]f there is a reasonable
possibility that the defendant could have been prejudiced.’” People
v. Castro, 2022 COA 101, ¶ 39 (quoting People v. Stroud, 2014 COA
58, ¶ 6). In other words, the harmless error analysis focuses on
“‘whether the guilty verdict actually rendered in this trial was surely
unattributable to the error,’ and ‘not whether, in a trial that
occurred without the error, a guilty verdict would surely have been
rendered.’” People v. Phillips, 2012 COA 176, ¶ 93 (quoting People
v. Fry, 92 P.3d 970, 980 (Colo. 2004)).
¶ 18 In assessing whether we should reverse a conviction due to
prosecutorial misconduct, we look at “the language used, the
context of the statements, the strength of the evidence, whether the
prosecutor improperly appealed to the jurors’ sentiments, whether
the misconduct was repeated, and any other relevant factors.”
People v. Liebler, 2022 COA 21, ¶ 51.
10 ¶ 19 We conclude that the error was harmless beyond a reasonable
doubt for three reasons.
¶ 20 First, the comment was brief and not repeated. People v.
Cuellar, 2023 COA 20, ¶ 51 (the prosecutor’s improper statements
during closing argument were harmless due to the brief nature of
the argument and the fact that the prosecutor did not repeat those
improper statements); People v. Vialpando, 2022 CO 28, ¶ 41
(same).
¶ 21 Second, the jury was properly instructed on Whitehorn’s right
to remain silent and that such silence could not be used to infer his
guilt. And without evidence in the record to the contrary, we must
presume the jury followed the court’s instructions. See Galvan v.
People, 2020 CO 82, ¶ 29; People v. Snelling, 2022 COA 116M, ¶ 22.
¶ 22 Finally, the evidence against Whitehorn was overwhelming.
Whitehorn disagrees, contending that this case rests solely on
witness credibility. While it is true that the victims’ credibility was
at issue, as discussed next, his argument fails to consider the
pattern of how the victims came to be in Whitehorn’s car, the
victims’ similar testimony about the sexual assaults, the
corroborating testimony from the victims’ friends and family, the
11 physical evidence of nonconsensual sex, and the evidence
supporting Whitehorn’s consciousness of guilt.
1. The Pattern of Whitehorn Picking up the Victims
¶ 23 Whitehorn picked up all of the very intoxicated victims in
LoDo.
¶ 24 At trial, L.L. testified that in April 2017, she had gone to
brunch and a Rockies game with friends, drank throughout the day
and evening, and got separated from her friends at the end of the
evening. Her cell phone had died so she could not call a rideshare.
¶ 25 The second victim, T.M., testified that, in October 2017, she
was visiting a friend in Denver. They went out to bars in LoDo.
While at one bar, T.M. was separated from her friend, who went to
get them more drinks. Because T.M. could not find her friend, she
went outside. T.M.’s phone was dead, which prompted her to ask
strangers outside the bar for assistance. After speaking with some
strangers, a man approached her. Despite not remembering the
specifics, she walked with the man down the street alone.
¶ 26 The third victim, N.H., testified that in January 2018, she
drove with friends from Boulder to Denver to stay with a friend.
Before going out with her friends, she took shots of tequila and
12 consumed some cocaine. N.H. and her friends went drinking in
LoDo. At some point during the night, she went outside the bar to
call an Uber to take her home. Before calling the Uber, she video-
called a friend, when suddenly a man N.H. later identified as
Whitehorn approached her. She remembered that he offered her a
ride home and being inside his car.
¶ 27 And P.D. testified that in December 2018, she went out with
friends to bars in LoDo. At some point during the night, P.D.
decided she wanted to leave. Her friend wanted to stay at the bar,
so P.D. called an Uber to take her home. When P.D. went outside,
P.D. was approached by a man who offered to help her. He grabbed
her phone and cancelled the Uber. P.D. then walked with the man,
eventually passing out in his car.
2. The Similarity of the Victims’ Testimony
¶ 28 Once in the car, the victims also had similar testimony about
what occurred.
¶ 29 L.L. testified she was so intoxicated that her next memory
after wanting to go home was waking up in the back of a car in a
fetal position. She did not recognize the car or the man. The man
asked her to move to the front seat and told her he would take her
13 home. She gave him her address and moved up to the front seat.
She then remembered the man being on top of her, having sex with
her in the car.
¶ 30 After encountering her assailant, T.M. remembered entering
another bar and having a beer with him. She did not remember
where her friend’s house was and did not remember agreeing to go
to the man’s house, but they went to his house anyway. She
remembered vomiting in the man’s car while driving there. But
T.M. could not remember what happened after she went inside the
man’s house; she only faintly recalled the layout of the house and
the bedroom window, as well as vomiting again in the bathroom.
Her next memory was being on the man’s bed with her pants down
and the man on top of her having sex. She asked him to stop,
which he did. T.M. then got dressed, gave the man her friend’s
home address, and asked him to take her there.
¶ 31 While in the man’s car, N.H. remembered having a confusing
conversation in which he claimed to know her boyfriend. N.H.’s
next memory was the man on top of her, having sex with her, in the
passenger seat of the car. She did not recall consenting. Her next
memory was waking up in Boulder.
14 ¶ 32 Once in the car, P.D.’s next memory was the man being on top
of her, having sex with her, in the passenger seat. Her underwear
was torn. She recalled the sex being “really gross” and that she
“wanted it to stop.” She said that she waited for it to end.
3. Corroborating Testimony of Friends
¶ 33 Some of the victims’ friends testified that the victims told them
about the sexual assaults immediately after they occurred.
¶ 34 L.L. told a friend what she remembered about the night,
including that she thought she was raped but was not sure.
Encouraged by her friend, on that same night, she went to a
hospital and underwent a sexual assault nurse examiner (SANE)
exam.
¶ 35 After the man drove T.M. back to her friend’s house in Denver,
she went to bed. The next morning, T.M. told her friend her
recollection of the prior night, including that she believed she had
been raped. After urging T.M. to get checked out, her friend took
her to a hospital where she was examined by a SANE and recounted
her experience.
¶ 36 While N.H. was in the man’s car, her friends were looking for
her. They used a tracking app on N.H.’s cell phone, noticing she
15 was heading back to Boulder. One of her friends went to N.H.’s
house to wait for her. Her friend recalled a white car pulling up to
the home. N.H.’s friend opened the car door, saw N.H. texting on
her phone and get out of the passenger seat, and realized
something was off. The next morning, N.H.’s friends insisted she go
to a hospital. Although reluctant to do so, she went and was
examined.
4. Evidence of Nonconsensual Sex
¶ 37 L.L. remembered that, when she awoke to her assailant having
sex with her, she was disconcerted because she was menstruating
and was using a tampon. She told the man she was on her period
and asked him to get off her, which he did. Once L.L. realized they
were parked near her house, she asked the man to take her home.
He dropped her off and gave her his number.
¶ 38 During L.L.’s examination, the SANE noticed a genital tear but
did not find a tampon. The SANE also observed a bruise on L.L.’s
elbow. L.L. continued to experience pain in her genital area for an
extended period of time. She sought treatment approximately six
weeks later, when a doctor finally discovered the tampon, and it
was removed.
16 ¶ 39 During N.H.’s examination, the SANE observed discharge from
her nipple ring, multiple diffused bruises on her lower legs, a small
bruise on her back leg, and tenderness to her lower back and left
arm.
¶ 40 P.D. testified there was a tear on the underwear she wore on
the day of the sexual assault and that she would not have put on
torn underwear.
5. Evidence of Whitehorn’s Consciousness of Guilt
¶ 41 Detective Loretta Beauvais (Beauvais), who investigated P.D.’s
case, testified that she located in P.D.’s cell phone a phone number
under the name “Byron” that had been entered into P.D.’s phone
around the time of the assault. Beauvais recounted that, after she
called the number and no one answered, she left a voicemail to an
inbox identified as “Byron.” She further stated that the number in
P.D.’s phone was associated with a Voice Over Internet Protocol
number, which meant there was no subscriber information for
tracing purposes, and that such a service could be purchased for
any type of business.
¶ 42 Whitehorn returned Beauvais’s call from a different cell phone
number, which she testified was then traced back to him. After
17 Whitehorn returned the call to police and gave his saliva sample, he
deactivated his cell phone account that same day. The following
day, he got a new phone. See People v. Perry, 68 P.3d 472, 475
(Colo. App. 2002) (holding that evidence of a defendant’s flight
might be relevant to show consciousness of guilt, but only if the
defendant was aware that the police were searching for him).
¶ 43 Given the overwhelming evidence presented in this case
linking Whithorn to each victim’s assault, and the brevity of the
prosecutor’s comment in rebuttal about Whitehorn’s right to remain
silent, we conclude that the error was harmless beyond a
reasonable doubt.
III. Admission of Whitehorn’s Uber Records
¶ 44 Whitehorn contends that the district court erred by admitting
his Uber records from when he drove for the company in 2015, two
years before any charged conduct occurred. He argues that the
records created the inference that he (1) utilized his time as an Uber
driver to scheme the sexual assaults in this case and (2) had
sexually assaulted women before 2017. On appeal, Whitehorn
asserts the evidence was subject to the requirements of CRE 404(b),
18 and the court erred by failing to undertake an analysis required by
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). We disagree.
A. Additional Facts
¶ 45 At trial, Whitehorn’s defense counsel moved to exclude his
Uber driving records. These records included approximately eighty-
eight trip receipts, sixty-five percent of which were for trips in the
LoDo area.
¶ 46 Outside the presence of the jury, the prosecutor argued that
the records were relevant to establish Whitehorn had previously,
and frequently, been at locations near where the victims had been
picked up. The prosecutor further asserted that the records were
relevant to show that Whitehorn “had the opportunity to observe this
part of downtown and know exactly what’s going on down there, i.e.,
women who are alone and out on the streets.” (Emphasis added.)
Defense counsel objected to admission of the Uber records, arguing
they were irrelevant under CRE 401 and 403.
¶ 47 The district court allowed admission of the records:
Based on the offer of proof of the People and the arguments I’ve heard, the Court finds that the Uber records from 2015 that demonstrate that Mr. Whitehorn was in the area of these alleged incidents with some frequency,
19 possibly up to 65 percent of the total rides that he drove for Uber, the Court finds is relevant in this case to Mr. Whitehorn’s ability to observe the area, to have knowledge of the streets in the area, and possibly also to observe the – the manner in which people, women or otherwise, conducted themselves at the time – around the time that bars were let out is admissible in this case, and the motion in limine is denied.
(Emphasis added.)
B. Standard of Review and Applicable Law
¶ 48 The district court’s decision to admit evidence under CRE
404(b) is reviewed for an abuse of discretion. Yusem v. People, 210
P.3d 458, 463 (Colo. 2009). A court abuses its discretion in this
context when its ruling is manifestly arbitrary, unreasonable, or
unfair, or is based on a misunderstanding or misapplication of the
law. People v. Heredia-Cobos, 2017 COA 130, ¶ 6.
¶ 49 Evidence of a defendant’s other crimes, wrongs, or acts is not
admissible to prove the defendant’s bad character or propensity to
commit crimes. CRE 404(b). The rule, however, allows for
admission of such evidence for some other relevant purpose, such
as to prove common plan, scheme, or design. Yusem, 210 P.3d at
463; Adrian v. People, 770 P.2d 1243, 1244 (Colo. 1989). The
20 “prosecution must identify the specific purpose for which the
evidence will be used.” Yusem, 210 P.3d at 464.
¶ 50 Before admitting other act evidence, the district court must be
satisfied by a preponderance of the evidence that the other act
occurred and that the defendant committed it. CRE 104; People v.
Rath, 44 P.3d 1033, 1039 (Colo. 2002). Next, the district court
must find that (1) the proffered evidence relates to a material fact;
(2) the evidence is logically relevant; (3) the logical relevance is
independent of any inference that the defendant has a bad
character; and (4) the danger of unfair prejudice does not
substantially outweigh the probative value of the evidence. Spoto,
795 P.2d at 1318.
C. Analysis
¶ 51 We conclude for four reasons that the district court did not err
by admitting Whitehorn’s Uber driving records.
¶ 52 First, Whitehorn mistakenly asserts on appeal that, because
the Uber driving records are extrinsic evidence, a CRE 404(b)
analysis should have been undertaken by the court. Whitehorn
relies on Rojas v. People, 2022 CO 8, ¶¶ 36-41. In that case, our
supreme court abolished the doctrine of res gestate and held that
21 courts must analyze whether other act evidence is intrinsic or
extrinsic to the offense. Id. In other words, Whitehorn maintains
that, under Rojas, the drives documented in the Uber records did
not occur contemporaneously with the charged offenses and did not
facilitate the commission of the offenses, and, thus, the evidence is
extrinsic and subject to a Rule 404(b) analysis.
¶ 53 But as the Attorney General correctly asserts, while the driving
records are extrinsic to the charged offense, they do not implicate
character or a “bad act” because no charges or knowledge of bad
acts existed in 2015 when Whitehorn drove for Uber. We agree that
a Rule 404(b) analysis was not required. See Rojas, ¶ 52 (“[I]f
extrinsic evidence does not suggest bad character, Rule 404(b) does
not apply and admissibility is governed by Rules 401-403.”); see
also Burkins v. State, 219 N.E.3d 735, 749 (Ind. Ct. App. 2023) (a
person stating their feelings is not considered a bad act);
Commonwealth v. Dula, 262 A.3d 609, 632 (Pa. Super. Ct. 2021)
(holding that a defendant’s “odd work behavior” did not constitute a
bad act for purposes of Rule 404(b), so the question was whether
the evidence was relevant).
22 ¶ 54 Second, and related to the first reason, Whitehorn’s contention
that the court did not provide a limiting instruction is irrelevant.
The court’s admission of the records under CRE 401 and 403 did
not require such an instruction and Whitehorn did not ask for one.
See People v. Griffin, 224 P.3d 292, 298-99 (Colo. App. 2009)
(holding that defense counsel is charged with the task of deciding
whether a limiting instruction is desirable, and the court must give
a limiting instruction “upon request” (quoting CRE 105)); see People
v. Garcia, 981 P.2d 214, 217 (Colo. App. 1998) (there may be
strategic or tactical reasons for a defendant’s choice not to request a
limiting instruction, and the court is not required to provide one
sua sponte).
¶ 55 Third, even assuming that a Rule 404(b) analysis was
required, the records satisfy the four-part Spoto test. See People v.
Draper, 2021 COA 120, ¶ 85 n.10 (A district court’s “decision to
admit evidence may be defended by any ground supported by the
record, even if that ground was not considered by the trial court.”),
overruled by Garcia v. People, 2023 CO 30. The records relate to
material facts — they showed that Whitehorn had knowledge of
23 LoDo and an opportunity to observe which areas people frequented
and how women conducted themselves when bars were closing.
¶ 56 Although this prior knowledge of and familiarity with the area
where the victims were picked up are not directly related to proving
“motive, opportunity, intent, preparation, plan, . . . or absence of
mistake or accident,” they are material facts regarding the sexual
assaults because they are “intermediate or evidential facts [that are]
probative of ultimate facts.” Rath, 44 P.3d at 1039-40; see also
Vialpando v. People, 727 P.2d 1090, 1095 (Colo. 1986) (“[A] ‘fact of
consequence to the determination of the action’ also includes facts
bearing circumstantially upon the weight or probative value to be
given other evidence in the case.” (quoting Michael H. Graham,
Handbook of Federal Evidence § 401.1, at 151-52 (2d ed. 1986))).
The victims’ testimony established that the assaults occurred in a
similar manner: Whitehorn approached them outside bars while
they were intoxicated and alone in areas in which Whitehorn
previously often drove for Uber.
¶ 57 The Uber records were also logically relevant to establish
Whitehorn’s familiarity with the location and observation of people’s
activities. An investigator on the case testified that Whitehorn’s
24 experience as an Uber driver for approximately two years included
176 locations, 107 of which were in LoDo near the bars in question,
during late night hours.
¶ 58 The evidence was also independent of any inference that
Whitehorn had a bad character because there is nothing inherently
improper about being an Uber driver; rather, the location, timing,
and frequency of Whitehorn’s Uber trips were the relevant facts.
Thus, we conclude that Whitehorn’s Uber records satisfy the third
and fourth Spoto prongs.
¶ 59 Fourth and finally, we disagree with Whitehorn that the
probative value of the Uber records was outweighed by the
prejudice of their admission. At no time did the prosecution use the
evidence to suggest Whitehorn was “hatching” a plan to sexually
assault women during his tenure with Uber in 2015. Accordingly,
because the district court appropriately exercised its discretion to
determine relevancy, we will not disturb the court’s admission of
the records under CRE 401 and 403. See People v. Rodriguez, 209
P.3d 1151, 1160-61 (Colo. App. 2008).
¶ 60 Accordingly, we perceive no reversible error in the admission
of the Uber records.
25 IV. The Witnesses’ Victim Impact Testimony and the Evidence of Screening
¶ 61 Whitehorn next contends that the district court improperly (1)
allowed victim impact testimony and (2) permitted officers to testify
about their screening process to imply Whitehorn’s guilt. We
discern no error.
¶ 62 As noted above, we review a court’s evidentiary rulings for an
abuse of discretion.
B. Victim Impact Testimony
¶ 63 Whitehorn argues that the extensive testimony of the victims
and their friends about the psychological and emotional effects of
the assaults was irrelevant impact evidence and was unfairly
prejudicial because it improperly shifted the jury’s focus from
deciding whether Whitehorn committed the crime to imposing a
guilty verdict out of sympathy. We disagree.
1. Additional Facts
¶ 64 During direct examination, the prosecutor asked L.L. whether
she had moved following the sexual assault. She responded that
she had moved “three weeks later,” that it was not her original plan
to move at that time, and that she moved because of the incident
26 involving Whitehorn. On redirect, L.L. was asked how she felt “in
the days following” the incident relating to not wanting to cooperate
with the investigation, and she responded that she felt “very
anxious” and “scared,” and was worried that “someone would come
after me for doing something.”
¶ 65 During P.D.’s cross-examination, defense counsel asked her
“in those hours the next day after” the incident, “are you trying to
put the pieces back together to figure out how this happened?”
P.D. responded that she felt “numb.” Defense counsel then asked,
“Has this been a persistent part of your life since this occurred back
in 2018?” P.D. responded, “It has ruined my life.”
¶ 66 P.D.’s boyfriend at the time of her assault testified that P.D.
texted him the night of the incident that she had just been “sexually
assaulted.” He went to her apartment and described her as sobbing
and “very broken down.” He also testified that P.D. did not like
physical contact for one or two months after the incident.
¶ 67 P.D.’s friend H.C. also testified that she was at P.D.’s
apartment the night of the incident. H.C. described P.D. as “very
shaken” for several days and said she was very quiet and had
nightmares. H.C. said that it was an “intense couple of months”
27 when she and P.D. would just sit together. H.C. recounted that she
altered her work schedule so she could be home more so P.D. did
not have to be home alone, and that P.D. was tired and would
sometimes cry.
¶ 68 N.H.’s roommate, S.R., testified that in the days after the
assault N.H. was not in a “good place” and was withdrawn and
would not come out of her room.
¶ 69 In closing argument, the prosecutor mentioned some of this
testimony:
These are not women who simply regretted a one-night stand, you can see the way that this has impacted them from their demeanor on the stand, the fact that they sought therapy. They moved from their houses or had issues with relationships. This is not simply a regretting of one night. Each one of them, in the moment, realized they did not consent to this.
¶ 70 In rebuttal, the prosecutor also said:
When you look at these four women, when you think back to meeting each and every one of them on that witness stand, when you think about their testimony, when you think about the way his actions have impacted them and how visceral that was for each and every one of these women – [N.H.], she couldn’t even look over here. She was curled up, turned in that
28 direction. That’s what happened to these women as a result of this man’s intentional actions.
2. Analysis
¶ 71 Whitehorn contends that testimony of the victims and their
friends, as well as the prosecutor’s statements during rebuttal
closing, directed the jury to consider the victims’ trauma, resulting
in the jury convicting Whitehorn based on sympathy rather than on
a consideration of whether he committed the charged offenses.
Assuming, without deciding, that the testimony Whitehorn
challenges is victim impact evidence, it was relevant and not unduly
prejudicial. Therefore, we discern no error.
¶ 72 Victim impact evidence is evidence that relates to “the victim’s
personal characteristics and to the physical, emotional, or social
impact of a crime on its victim and the victim’s family.” People v.
Martinez, 2020 COA 141, ¶ 29 (quoting Schreibvogel v. State, 2010
WY 45, ¶ 22); see State v. Graham, 650 S.E.2d 639, 645 (N.C. Ct.
App. 2007) (explaining that victim impact evidence includes the
physical, psychological, emotional, and economic toll a crime takes
on the victim and the victim’s family).
29 ¶ 73 Whitehorn relies on Martinez, ¶¶ 2-3, 33, in which the division
held, under the facts of that case, that a mother’s testimony about
her daughter being depressed and suicidal was improper victim
impact testimony because it did not make it more probable that the
victim had been sexually assaulted. But Martinez is
distinguishable.
¶ 74 The defendant in Martinez was charged with sexual assault
(incapable of appraising nature of conduct), § 18-3-402(1)(b).
Martinez, ¶ 10. That offense involves a victim who cannot
understand what she is doing. People v. Lancaster, 2022 COA 82,
¶ 17. Therefore, the offense “focuses on the actor’s awareness of
the victim’s cognitive incapability of appraising the nature of his or
her own conduct.” People v. Platt, 170 P.3d 802, 805 (Colo. App.
2007), aff’d, 201 P.3d 545 (Colo. 2009). The focus of the analysis in
Martinez was whether the victim “was so heavily intoxicated that
she was incapable of apprising the nature of her conduct, and,
thus, she could not and did not consent to have sex” with the
defendant. Martinez, ¶¶ 5, 38.
¶ 75 The division concluded that the victim impact testimony was
not “relevant to any material fact,” such as the defendant’s state of
30 mind or why the victim could not remember certain events from the
night. Id. at ¶ 40. “[T]he evidence did not shed light on why the
victim could not remember anything between 9:00 p.m., when she
was still at the bar, and when she found herself lying on the ground
at a light-rail station hours later.” Id. In other words, whether the
victim was depressed or suicidal after the assault did not make it
more likely than not that she was intoxicated at the time of the
incident.
¶ 76 Whitehorn was charged with and convicted of sexual assault
under section 18-3-402(1)(b). But he was also charged with and
convicted of sexual assault under section 18-3-402(1)(a)
(submission against will). At the time of his conviction, section 18-
3-402(1)(a), C.R.S. 2018, stated that a person who knowingly
inflicts sexual intrusion or sexual penetration commits sexual
assault when the person “causes submission of the victim by means
of sufficient consequence reasonably calculated to cause
31 submission against the victim’s will.”2 In other words, the central
focus of this offense is whether the sexual act was against the
victim’s will, meaning she did not consent.
¶ 77 Victim impact testimony is generally irrelevant in the
guilt/innocence phase of a trial because “the effect of a crime on a
[victim or the] victim’s family often has no tendency to prove
whether a particular defendant committed a particular criminal act
against a particular victim.” Martinez, ¶ 33 (quoting Graham, 650
S.E.2d at 645). Thus, admissibility of victim impact evidence turns
on whether the evidence is relevant to determining whether the
defendant committed the charged offense. Id. (citing Schreibvogel,
¶ 22); see also CRE 402 (irrelevant evidence is inadmissible); People
v. Clark, 2015 COA 44, ¶ 17 (“In criminal cases, evidence is relevant
if the evidence makes it more or less probable that a criminal act
occurred, the defendant was the perpetrator, or the defendant acted
with the necessary criminal intent.”). In other words, victim impact
2 Effective July 1, 2022, section 18-3-402(1)(a) was amended to
provide that a person commits sexual assault by knowingly inflicting sexual intrusion or sexual penetration if “[t]he actor causes sexual intrusion or sexual penetration knowing the victim does not consent.” Ch. 41, sec. 1 § 18-3-402, 2022 Colo. Sess. Laws 214.
32 evidence is admissible only if it “tends to show the context or
circumstances of the crime itself.” Martinez, ¶ 34 (quoting Graham,
650 S.E.2d at 646).
¶ 78 In People v. Haymaker, 716 P.2d 110, 113-14 (Colo. 1986), the
supreme court held that testimony of the victim’s mother that the
victim was fearful and distraught for several months after she was
sexually assaulted was admissible under CRE 803(3) because the
statement went to the victim’s state of mind. The court reasoned
that the testimony was relevant because it went to the victim’s
credibility that she did not consent to the sexual encounter with the
defendant. Haymaker, 716 P.2d at 113; see also People v. Acosta,
2014 COA 82, ¶ 80 (affirming a district court’s admission under
CRE 803(3) of a father’s statement that his daughter, the victim,
said that when she thought of “it” — meaning when she thought of
being sexually assaulted — she was sick to her stomach).
¶ 79 Here, the description that the victims did not feel safe, sobbed,
moved from their homes, were afraid, did not want physical contact,
and stayed in their rooms — especially when the prosecutor
generally asked how the victims felt immediately after or within
days following the incidents — was relevant because it was evidence
33 that “tends to show the context or circumstances of the crime
itself.” People v. Mena, 2025 COA 14, ¶ 21 (quoting Martinez, ¶ 34);
see also State v. Cosey, 873 P.2d 1177, 1182 (Utah Ct. App. 1994)
(“Evidence of a drastic change in the victim’s behavior is relevant
circumstantial evidence that a traumatic experience such as rape
has occurred.”); State v. Dube, 598 A.2d 742, 746 (Me. 1991)
(“Evidence of changes in the victim’s personality and behavior
immediately after the time of the reported assault tends to prove
that something of a traumatic nature had in fact occurred and thus
was clearly relevant . . . .”); Simmons v. State, 504 N.E.2d 575, 581
(Ind. 1987) (testimony that the victim developed a fear of going
outside by herself and stayed at home more often was probative of
the fact that she had been raped).
¶ 80 Unlike in Martinez, the prosecution did not seek to introduce
the victim impact evidence to establish why the victims were
incapable of consenting. See Martinez at ¶¶ 5, 38. Instead, the
prosecutor’s use of the emotional and psychological testimony was
appropriate to rebut Whitehorn’s theory of defense that he had
consensual sex with each of the victims. The prosecutor did not
urge the jury to convict Whitehorn because the victims had
34 suffered. The prosecutor tied the victims’ emotional and
psychological testimony to their lack of consent. Specifically, the
prosecutor said in closing argument and rebuttal, “This is not
simply a regretting of one night. Each one of them, in the moment,
realized they did not consent to this.”
¶ 81 We also reject Whitehorn’s contention that the evidence was
unduly prejudicial under CRE 403. The victims’ emotional and
psychological “responses to the incident and its aftermath were
highly probative of [their] credibility, a central issue” in the case.
Mena, ¶ 27. Any unfair prejudice from the jury sympathizing with
the victims was not likely to substantially outweigh the evidence’s
relevance. Id.; see also People v. Gibbens, 905 P.2d 604, 607 (Colo.
1995) (Because “CRE 403 strongly favors admissibility of relevant
evidence,” we “afford the evidence the maximum probative value”
and “minimum unfair prejudice.”); People v. Brown, 2022 COA 19,
¶ 70 (“Unfair prejudice [in CRE 403] does not mean prejudice that
results from the legitimate probative force of the evidence.”).
¶ 82 Finally, we note that it was in response to defense counsel’s
question about P.D.’s reaction the day after the assault that P.D.
said she felt numb. Defense counsel thus opened the door to the
35 admission of this statement. People v. Lopez, 2024 COA 26, ¶ 5
(holding that the trial court did not err by admitting testimony
because defense counsel opened the door to the testimony by
questioning the officer about the same issue) (cert. granted Dec. 23,
2024). The victims’ testimony about their emotional and
psychological trauma following the sexual assaults was minimal in
comparison to their overall testimony, and it was a minor portion of
the prosecution’s case during a nine-day trial in which more than
twenty-five witnesses testified. See Martinez, ¶ 43 (admission of
victim impact testimony was harmless, in part, because it
constituted a minor portion of the trial).
¶ 83 Thus, under the circumstances of this case, where a defendant
is charged under section 18-3-402(1)(a), and the defendant’s theory
of defense was the victims consented to having sex with him, we
discern the court did not err by admitting testimony of the victims
and friends concerning the impacts the sexual assaults had on the
victims immediately after or in the days following the incidents.
C. Investigating Officer Testimony
¶ 84 Whitehorn contends that the prosecution elicited improper
screening testimony about how the officers referred cases for
36 further investigation because the testimony (1) suggested there was
additional evidence establishing his guilt and (2) revealed the
officers’ personal opinion that he was guilty. Under the
circumstances, we discern no error.
¶ 85 At trial, the prosecution introduced the testimony of four
investigators who met with the victims at the hospital, gathered
information, and took their statements.
¶ 86 Investigator Nicholas Sagan (Sagan), the initial investigator in
L.L.’s case, testified about what he does when investigating
allegations of sexual assault. He said,
We’re trying to find out, first of all, if a crime actually occurred, does it establish the elements of the crime of sexual assault. We’re looking for descriptions of suspects, you know, trying to locate a crime scene. So we want to know where it happened and if it happened in our jurisdiction. And if there is a crime scene that we need to find, we need to find the crime scene, lock it down, see if we can locate evidence at the crime scene. Perhaps get a warrant for a location, if it occurred inside of a house, an apartment, a car or something like that.
37 Sagan continued that he put the information he gathered from L.L.
“in the report that’s submitted to a sexual assault detective for further
investigation.” (Emphasis added.)
¶ 87 Investigator Brian Mudloff (Mudloff), the initial investigator in
T.M.’s case, similarly testified that the purpose of his investigation
is to “[t]o determine if a crime had been committed, where that crime
was committed, when it was committed.” (Emphasis added.)
¶ 88 Investigator Andrew Landon (Landon), the initial investigator
in P.D.’s case, testified that he “conduct[s] an initial interview with
[the victim], ask[s] her what happened that night. Kind of do[es] the
preliminary steps of the investigations. So that the case can be then
sent to our sex crimes division, and they can further investigate it.”
¶ 89 Finally, Investigator John Nelson (Nelson), the initial
investigator in N.H.’s case, testified,
You just want to get the information right away. You want to get — while it’s fresh in their mind you want to get any allegations, you want to collect evidence, you want to talk — touch base with another agency, if need be, to coordinate with them so they’re in coordination with our sexual assault detectives. Just to have a nice thorough investigation to find out the allegations, and if we can outsource
38 anything to them and if we need to do follow- up investigation by contacting a sex assault detective or anybody else.
¶ 90 Whitehorn contends that the investigators’ testimony
describing how they conduct their investigations was improper
because they implied that, through their pretrial screening process,
only guilty parties are charged with crimes. The Attorney General
asserts the investigators’ statements were proper because they
showed the “progress, sequence, and accuracy of the investigation.”
We disagree with Whitehorn for three reasons.
¶ 91 First, although we agree with Whitehorn that screening
testimony that suggests guilt is improper, the investigators’
statements here do not rise to that level. Domingo-Gomez v. People,
125 P.3d 1043, 1052 (Colo. 2005), and People v. Mullins, 104 P.3d
299 (Colo. App. 2004), held that, where probable cause to arrest or
search is not at issue, it is improper to present to the jury evidence
about obtaining an arrest or search warrant. Remarks of “personal
knowledge, combined with the power and prestige inexorably linked
with the [prosecutor’s] office may encourage a juror to rely on the
prosecution’s allegation that unadmitted evidence supports a
39 conviction.” Domingo-Gomez, 125 P.3d at 1052. But the
investigators’ testimony did not present evidence about how
Whitehorn was arrested or how they obtained search warrants.
Rather, the investigators’ statements referred generally to what they
did with the information they gathered from their preliminary
investigations before referring the investigation to other law
enforcement personnel. Thus, we conclude that the investigators’
statements were not admitted for an improper purpose.
¶ 92 Second, People v. Mendenhall, 2015 COA 107M — on which
Whitehorn relies — is distinguishable. In Mendenhall, a division of
this court held that an investigator’s testimony regarding how many
potential cases he received each year was irrelevant and thus
inadmissible. Id. at ¶ 63. Specifically, in that case, the investigator
testified that he received 250 to 500 case referrals per year and
described the process he undertook on each case. Id. at ¶ 55.
Significantly, the investigator testified that not all referrals led to
criminal charges but that about 35 to 50 cases a year were formally
filed. Id. The division reasoned that “[s]uch references to a
‘screening process’ are improper because they hint that additional
evidence supporting guilt exists that is unknown to the jury, and
40 also reveal the personal opinion of the witness as to the guilt of the
defendant.” Id. at ¶ 62. The division concluded that a reference to
how many of the investigators’ cases resulted in formal criminal
charges was irrelevant because it had no rational tendency to make
it more probable that the defendant committed the charged offense.
Id.
¶ 93 None of the investigators in this case testified to the number of
potential cases they investigated or referred for additional
investigation. And none of the investigators suggested that their
referrals for further investigation led to formal charges or
convictions. Landon and Sagan both emphasized that their goals in
their respective cases were to gather information as part of the
“preliminary steps of the investigations” and then to pass their
information along for further investigation by other law enforcement
personnel. And Landon, Mudloff, and Nelson did not testify that
they made any preliminary determinations as to whether
Whitehorn’s conduct constituted sexual assault. We acknowledge
that Sagan’s testimony that he was doing his job by moving the
case forward may have suggested a specific outcome. But his
testimony was not the equivalent of testimony regarding the
41 number of cases he refers for further investigation or that he is
good at his job because his cases result in criminal prosecutions
and convictions.
¶ 94 Third and finally, the investigators’ descriptions of their
investigations, the collection of evidence, and how they forwarded
information to detectives for further investigation were relevant to
establish the credibility and thoroughness of their investigations
into the sexual assaults. Because the sexual assaults were not a
single event but spanned more than a year and involved
unconnected victims and different investigators, the reliability of the
investigations was relevant. See People v. Marks, 2015 COA 173,
¶ 34 (evidence may be independently relevant to show that the
police conducted a thorough investigation).
¶ 95 Accordingly, we discern no reversible error.
V. Cumulative Error
¶ 96 We reverse for cumulative error in criminal cases where there
are numerous formal irregularities, but where none individually
warrants reversal. Howard-Walker v. People, 2019 CO 69, ¶ 24;
People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986). But numerous
errors must be committed; merely asserting numerous errors is
42 insufficient. People v. Shannon, 2024 COA 41, ¶ 34. Although we
concluded that the court erred by allowing the prosecutor to engage
in misconduct, we determined that such error was harmless beyond
a reasonable doubt. And because we have discerned no other
errors, Whitehorn’s cumulative error claim fails.
VI. Conclusion
¶ 97 The judgment is affirmed.
JUDGE LIPINSKY and JUDGE MOULTRIE concur.