Peo v. Wuthrich
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Opinion
21CA1200 Peo v Wuthrich 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1200 Adams County District Court No. 07CR687 Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Todd Wuthrich,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE FOX Harris and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Todd Wuthrich, appeals the postconviction court’s
order rejecting his Crim. P. 35(c) petition requesting a new trial on
charges that he sexually assaulted his then-four-year-old daughter,
L.W., and his four-year-old nieces, M.C. and C.C. He claims his
trial counsel provided unconstitutionally ineffective assistance. We
affirm the postconviction court’s order.
I. Background
¶2 In 2006, D.C., L.W.’s mother, separated from Wuthrich after
learning he lied about a court date relating to charges for soliciting
a minor; Wuthrich eventually pleaded guilty to solicitation of an
adult prostitute. The police report indicated that Wuthrich “had
asked a child to perform oral sex.”
¶3 D.C. told M.C.’s mother about these events, and M.C.’s mother
recalled that six months earlier M.C. told her, during a “safety talk,”
that L.W. had touched and “licked” her privates in a “puppy and kid
game.” M.C.’s mother also shared M.C.’s disclosures with C.C.’s
mother. C.C.’s mother then had safety talks with C.C., and C.C.
also disclosed that L.W. had touched her privates.
¶4 D.C. called the police, and all three children later disclosed
that Wuthrich had touched them inappropriately. After L.W. and
1 M.C. began therapy, in January 2007 L.W. disclosed to her
therapist, Susan Giragosian, that Wuthrich had touched her
“private parts.” C.C. later disclosed to her parents that Wuthrich
had touched her privates with his hands. C.C. began therapy after
a forensic interview. C.C. also later disclosed that Wuthrich’s
“private part touched her private part.” Finally, M.C. disclosed in
therapy, and in a September 2007 forensic interview, that Wuthrich
had touched her inappropriately. At trial — in December 2007 —
all three victims testified that Wuthrich had touched them
inappropriately, but each of them also recanted on cross-
examination.
¶5 The defense’s theory at trial was that the children had not
been assaulted and that the allegations resulted from suggestions
made by the children’s parents. The defense argued the parents
pushed the children to make allegations against Wuthrich and
influenced the children to remember events that never occurred
because the parents could accept no other explanation for the
children’s behavior after learning about Wuthrich’s solicitation case
and because D.C. had an “agenda.” As support for its theory, the
defense pointed to the long timeframe between the discovery of the
2 inappropriate touching and the later allegations against Wuthrich,
despite many therapy sessions and interviews in the interim where
the children denied that Wuthrich had touched them. The defense
also argued the allegations resulted from invasive sexual assault
examinations that traumatized the children.
¶6 The jury convicted Wuthrich for sexually assaulting all three
young victims in 2007. He was convicted on nine counts: three
counts of sexual assault on a child under the age of fifteen by one
in a position of trust (one for each victim); two counts of sexual
assault on a child by one in a position of trust — pattern of abuse;
three counts of sexual assault on a child; and one count of
aggravated incest. The separate charges for acts against each
victim merged, and Wuthrich received three concurrent sentences
of fifteen years to life in the custody of the Colorado Department of
Corrections plus one concurrent sentence of ten years to life with
lifetime parole for the aggravated incest charge.
¶7 Wuthrich filed a direct appeal, and a division of this court
affirmed his convictions in 2011. See People v. Wuthrich, (Colo.
App. No. 08CA0972, Feb. 17, 2011) (not published pursuant to
C.A.R. 35(f)). Wuthrich later sought a sentence reduction pursuant
3 to Crim. P. 35(b), which the postconviction court denied without a
hearing in April 2012.
¶8 Wuthrich then timely moved for postconviction relief under
Crim. P. 35(c) in November 2012. See People v. Metcalf, 979 P.2d
581, 583 (Colo. App. 1999) (“[T]he date of conviction for purposes of
[section] 16-5-402[, C.R.S. 1998,] is the date the appeal is
exhausted . . . .”); see also § 16-5-402(1), C.R.S. 2024. Wuthrich’s
Rule 35(c) petition raised numerous claims across hundreds of
pages but primarily challenged the effectiveness of his trial counsel,
Rowe Stayton. After multiple delays and continuances, a defense
expert, Eric Klein, “crystalized” the issues in Wuthrich’s petition
into sixteen claims in February 2019. Of these sixteen reframed
claims, the postconviction court found, in March 2020, that some
(part of claim five and claim fourteen)1 did not merit a hearing, but
it reviewed the remaining claims. The reframing of Wuthrich’s
claims and the exclusion of some are uncontested on appeal.
1 Part of claim five focused on the fee structure Stayton used to bill
Wuthrich as part of a claim that Stayton did not sufficiently prepare for trial. The fee structure is mentioned in Wuthrich’s opening brief as part of the facts, but it is not part of an argument on appeal. Claim fourteen related to contentions that Stayton called witnesses who hurt the defense’s case, including Wuthrich’s brother.
4 ¶9 The postconviction court held a four-day hearing in June
2021. Stayton testified that he “made mistakes or unsound
strategy decisions that contributed to a false conviction,” his
representation of Wuthrich was ineffective, and Wuthrich should
receive a new trial. Even so, the postconviction court rejected all of
Wuthrich’s ineffective counsel claims and denied his petition.
¶ 10 The court heard testimony on all of the crystallized claims,
which form the basis for Wuthrich’s nine claims on appeal. On
appeal Wuthrich combined some of the reframed claims into
categories, such as claims based on alleged failures to present
exculpatory evidence. For clarity we largely adhere to this framing.
Wuthrich’s appeal does not challenge some of the postconviction
court’s findings, including its rejection of claims related to alleged
failures to object to a detective’s testimony and to call Wuthrich to
testify in his own defense, so those are abandoned. See People v.
Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
II. Standard of Review and Applicable Law
¶ 11 “A claim of ineffective assistance of counsel presents a mixed
question of law and fact.” People v. Stovall, 2012 COA 7M, ¶ 18.
“We review de novo the postconviction court’s legal conclusions but
5 defer to its factual findings when they are supported by the record.”
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21CA1200 Peo v Wuthrich 05-29-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1200 Adams County District Court No. 07CR687 Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Todd Wuthrich,
Defendant-Appellant.
ORDER AFFIRMED
Division II Opinion by JUDGE FOX Harris and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Todd Wuthrich, appeals the postconviction court’s
order rejecting his Crim. P. 35(c) petition requesting a new trial on
charges that he sexually assaulted his then-four-year-old daughter,
L.W., and his four-year-old nieces, M.C. and C.C. He claims his
trial counsel provided unconstitutionally ineffective assistance. We
affirm the postconviction court’s order.
I. Background
¶2 In 2006, D.C., L.W.’s mother, separated from Wuthrich after
learning he lied about a court date relating to charges for soliciting
a minor; Wuthrich eventually pleaded guilty to solicitation of an
adult prostitute. The police report indicated that Wuthrich “had
asked a child to perform oral sex.”
¶3 D.C. told M.C.’s mother about these events, and M.C.’s mother
recalled that six months earlier M.C. told her, during a “safety talk,”
that L.W. had touched and “licked” her privates in a “puppy and kid
game.” M.C.’s mother also shared M.C.’s disclosures with C.C.’s
mother. C.C.’s mother then had safety talks with C.C., and C.C.
also disclosed that L.W. had touched her privates.
¶4 D.C. called the police, and all three children later disclosed
that Wuthrich had touched them inappropriately. After L.W. and
1 M.C. began therapy, in January 2007 L.W. disclosed to her
therapist, Susan Giragosian, that Wuthrich had touched her
“private parts.” C.C. later disclosed to her parents that Wuthrich
had touched her privates with his hands. C.C. began therapy after
a forensic interview. C.C. also later disclosed that Wuthrich’s
“private part touched her private part.” Finally, M.C. disclosed in
therapy, and in a September 2007 forensic interview, that Wuthrich
had touched her inappropriately. At trial — in December 2007 —
all three victims testified that Wuthrich had touched them
inappropriately, but each of them also recanted on cross-
examination.
¶5 The defense’s theory at trial was that the children had not
been assaulted and that the allegations resulted from suggestions
made by the children’s parents. The defense argued the parents
pushed the children to make allegations against Wuthrich and
influenced the children to remember events that never occurred
because the parents could accept no other explanation for the
children’s behavior after learning about Wuthrich’s solicitation case
and because D.C. had an “agenda.” As support for its theory, the
defense pointed to the long timeframe between the discovery of the
2 inappropriate touching and the later allegations against Wuthrich,
despite many therapy sessions and interviews in the interim where
the children denied that Wuthrich had touched them. The defense
also argued the allegations resulted from invasive sexual assault
examinations that traumatized the children.
¶6 The jury convicted Wuthrich for sexually assaulting all three
young victims in 2007. He was convicted on nine counts: three
counts of sexual assault on a child under the age of fifteen by one
in a position of trust (one for each victim); two counts of sexual
assault on a child by one in a position of trust — pattern of abuse;
three counts of sexual assault on a child; and one count of
aggravated incest. The separate charges for acts against each
victim merged, and Wuthrich received three concurrent sentences
of fifteen years to life in the custody of the Colorado Department of
Corrections plus one concurrent sentence of ten years to life with
lifetime parole for the aggravated incest charge.
¶7 Wuthrich filed a direct appeal, and a division of this court
affirmed his convictions in 2011. See People v. Wuthrich, (Colo.
App. No. 08CA0972, Feb. 17, 2011) (not published pursuant to
C.A.R. 35(f)). Wuthrich later sought a sentence reduction pursuant
3 to Crim. P. 35(b), which the postconviction court denied without a
hearing in April 2012.
¶8 Wuthrich then timely moved for postconviction relief under
Crim. P. 35(c) in November 2012. See People v. Metcalf, 979 P.2d
581, 583 (Colo. App. 1999) (“[T]he date of conviction for purposes of
[section] 16-5-402[, C.R.S. 1998,] is the date the appeal is
exhausted . . . .”); see also § 16-5-402(1), C.R.S. 2024. Wuthrich’s
Rule 35(c) petition raised numerous claims across hundreds of
pages but primarily challenged the effectiveness of his trial counsel,
Rowe Stayton. After multiple delays and continuances, a defense
expert, Eric Klein, “crystalized” the issues in Wuthrich’s petition
into sixteen claims in February 2019. Of these sixteen reframed
claims, the postconviction court found, in March 2020, that some
(part of claim five and claim fourteen)1 did not merit a hearing, but
it reviewed the remaining claims. The reframing of Wuthrich’s
claims and the exclusion of some are uncontested on appeal.
1 Part of claim five focused on the fee structure Stayton used to bill
Wuthrich as part of a claim that Stayton did not sufficiently prepare for trial. The fee structure is mentioned in Wuthrich’s opening brief as part of the facts, but it is not part of an argument on appeal. Claim fourteen related to contentions that Stayton called witnesses who hurt the defense’s case, including Wuthrich’s brother.
4 ¶9 The postconviction court held a four-day hearing in June
2021. Stayton testified that he “made mistakes or unsound
strategy decisions that contributed to a false conviction,” his
representation of Wuthrich was ineffective, and Wuthrich should
receive a new trial. Even so, the postconviction court rejected all of
Wuthrich’s ineffective counsel claims and denied his petition.
¶ 10 The court heard testimony on all of the crystallized claims,
which form the basis for Wuthrich’s nine claims on appeal. On
appeal Wuthrich combined some of the reframed claims into
categories, such as claims based on alleged failures to present
exculpatory evidence. For clarity we largely adhere to this framing.
Wuthrich’s appeal does not challenge some of the postconviction
court’s findings, including its rejection of claims related to alleged
failures to object to a detective’s testimony and to call Wuthrich to
testify in his own defense, so those are abandoned. See People v.
Osorio, 170 P.3d 796, 801 (Colo. App. 2007).
II. Standard of Review and Applicable Law
¶ 11 “A claim of ineffective assistance of counsel presents a mixed
question of law and fact.” People v. Stovall, 2012 COA 7M, ¶ 18.
“We review de novo the postconviction court’s legal conclusions but
5 defer to its factual findings when they are supported by the record.”
People v. Thompson, 2020 COA 117, ¶ 49.
¶ 12 “To prevail on a claim of ineffective assistance of counsel
under Rule 35(c), a defendant must show that (1) counsel’s
performance fell below an objective standard of reasonableness and
(2) counsel’s deficient performance prejudiced him.” People v.
Sharp, 2019 COA 133, ¶ 11 (citing Strickland v. Washington, 466
U.S. 668, 687-88 (1984)). A defendant’s ineffective assistance of
counsel claim will fail, and a court need not address both prongs, “if
the defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697.
¶ 13 For the “performance” prong, the “inquiry must be whether
counsel’s assistance was reasonable considering all the
circumstances.” Id. at 688. In reviewing counsel’s performance,
“[j]udicial scrutiny . . . must be highly deferential” as “[a] fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Id. at 689.
Thus, “[b]ecause of the difficulties inherent in making the
6 evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. Under this deferential standard,
“strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Id. at
690.
¶ 14 As for the “prejudice” prong, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment. . . . [A]ny deficiencies in counsel’s performance must be
prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.” Id. at 691-92. Therefore, “[t]he
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
And “[i]n making this determination, a court . . . must consider the
totality of the evidence before the judge or jury,” as some errors may
be more prejudicial than others. Id. at 695-96. For example, “a
verdict or conclusion only weakly supported by the record is more
7 likely to have been affected by errors than one with overwhelming
record support.” Id. at 696.
III. Postconviction Claims Appealed
A. Night Terrors
¶ 15 First, Wuthrich argues that Stayton was ineffective because he
failed to object to the admission of a video of L.W.’s “night terrors”
that D.C. had recorded. Additionally, he argues that Stayton was
ineffective because — after L.W.’s therapist characterized the night
terrors as a “symptom” of abuse — Stayton failed to research night
terrors and challenge or rebut the testimony with a defense expert.
1. Trial Testimony
¶ 16 The challenged video was introduced during D.C.’s direct
examination, where she described L.W.’s trouble with “night terrors”
and L.W.’s behavior with her cousins as the impetus for starting
L.W. in therapy. She described the night terrors as an “ongoing
problem” that occurred “several nights a week” for a “very long time”
and stated that the night terrors occurred before she and Wuthrich
separated and before L.W. started therapy. D.C. also testified that
L.W. “almost always” did not remember the incidents. The
prosecution introduced a recording of an episode of night terrors
8 from April 2007. Stayton stipulated to the video’s admissibility, and
it was shown to the jury.
¶ 17 On cross-examination Stayton asked why, if the night terrors
had occurred before the separation, D.C. had never told L.W.’s
pediatrician about them. Stayton also inquired about a sexual
assault examination L.W. underwent and the “positions” L.W. was
placed in for the exam, highlighting that D.C. also did not tell the
examiners about L.W.’s night terrors.
¶ 18 Next, Giragosian — an expert “therapist in victimization and
trauma issues” — testified that L.W. was referred to her and that
D.C. described various “symptoms.” These “symptoms” included
that L.W. was “sexually acting out quite a bit in sexual play,” she
was “secretive” about the sexual play, she had “temper tantrums,”
and she experienced night terrors. Although Giragosian repeatedly
referred to these behaviors as “symptoms,” she did not specifically
say that these were symptoms of a specific trauma. She also stated
that her role as a therapist was to “assist[] [L.W.] with her
symptoms.”
¶ 19 In closing arguments the prosecution mentioned the night
terrors when thanking the jury for its dedication in a difficult case,
9 stating, “certainly watching that video of the night terrors couldn’t
have been pleasant.” The prosecution also stated that part of
Giragosian’s job was to “figure out why this little girl wakes up
every night screaming[,] . . . not remembering what happened.”
¶ 20 Stayton also referenced the video in closing arguments, noting
that it was unusual that “[i]f your daughter is going through night
terrors, the first thing in your mind is, I want to prove this thing in
court.” Stayton reiterated the defense’s theory that the
examinations “traumatized” L.W., which caused the night terrors.
2. Postconviction Testimony and Findings
¶ 21 Stayton testified at the postconviction hearing that, based on
his experience, he believed the video would “probably be admitted.”
His strategy at trial was to allow the video to be played and concede
that L.W.’s night terrors were the result of trauma but to argue that
the trauma was, instead, connected to a sexual assault
examination. He conceded that “I felt we had an explanation for it.
In retrospect we didn’t.” Stayton also testified that he used the
video to cross-examine D.C. about the night terrors and why she
had not disclosed them to L.W.’s pediatrician.
10 ¶ 22 The postconviction court found that the video was introduced,
without objection, to explain why L.W. was in therapy. The court
also noted that Stayton elicited testimony from D.C. that she never
told L.W.’s pediatrician about the night terrors to challenge her
credibility. The court noted that Stayton elicited testimony on
cross-examination from Giragosian to support the defense’s theory.
¶ 23 The court also discussed the postconviction hearing testimony
provided by Dr. Pinar Polat, a defense expert in “child sleep
medicine and neurology.” Polat testified that the exact cause of
night terrors is unknown, though they can be triggered by “sleep
deprivation, certain medications, . . . sleep apnea, anxiety, stress,
[or] excitement,” but it “doesn’t have to be negative stress,” and that
“[e]ssentially anything that would wake someone up [could] trigger a
sleep terror.”
¶ 24 Polat also testified that the frequency of night terrors could
increase during times of stress, but stress would be an “indirect”
cause of night terrors. Polat added that there is no direct link
between trauma and terrors, and that night terrors are not a direct
symptom of sexual assault. On cross-examination Polat also
testified, however, that trauma could be a contributing factor and
11 that other “sleep disturbances” like insomnia (which can be
associated with trauma) could be linked to night terrors because of
the resulting sleep deprivation.
¶ 25 The postconviction court found that Stayton was not
ineffective by not objecting to the video’s admission or calling an
expert at trial to discuss night terrors. The court noted that the
video was introduced to suggest that the night terrors were “a
manifestation of something going on with L.W.” and that it “could
not find one quote in the transcript where someone said that [the
terrors were] the result of sexual trauma.” The court found that it
was the jury’s role to determine what weight to give the video
evidence and that Stayton made a strategic decision to “address
[the child’s] positioning in that video” during trial. The court added
that when “look[ing] at the totality of the evidence before the jury”
— particularly that there were two other victims — the night terror
video claim did not meet Strickland’s requirements, and it thus
rejected Wuthrich’s claim.
3. Analysis
¶ 26 Wuthrich now argues that a causal connection between night
terrors and sexual abuse is unsupported by scientific evidence and,
12 therefore, Stayton was deficient for failing to challenge the video’s
admission. Wuthrich argues he should have been granted a new
trial because there was a reasonable probability of a different
outcome without these errors. Wuthrich also argues that the
postconviction court misconstrued the law when it found that
Stayton made a strategic decision to argue that L.W.’s positioning in
the video was connected to the sexual assault exam.
¶ 27 We agree with the postconviction court that Stayton’s
performance was reasonable. See Strickland, 466 U.S. at 688-89.
The night terrors video explained why D.C. put L.W. in therapy and
could support Stayton’s theory that the night terrors resulted from
the sexual assault examination. See CRE 401. While the video was
described as hard to watch, it was not unfairly prejudicial given its
relevance to the prosecution’s and the defense’s theories. See CRE
403.
¶ 28 Stayton testified that he “was aware of what night terrors”
were at the time of trial and that they differed from nightmares.
Stayton anticipated the video would be admitted and opted to argue
there was an alternative explanation for L.W.’s night terrors.
Stayton made this decision in light of his experience — having
13 handled “hundreds” of cases over thirty years and tried
“probably . . . 30” cases involving sexual assault against children.
See People v. Newmiller, 2014 COA 84, ¶ 60 (reviewing courts are
even more reluctant to challenge the presumption of reasonable
performance when counsel is experienced with criminal trials).
¶ 29 Further, during cross-examination Stayton effectively
questioned D.C. about (1) when L.W. began experiencing night
terrors; (2) why she chose to film them; and (3) her failure to tell
L.W.’s pediatrician about them. Stayton also connected L.W.’s
positioning in the video to the sexual assault examination. As
experienced counsel, Stayton did not need to do additional research
or call a defense expert to make these points. See id. (“[T]rial
counsel need not introduce expert testimony on his [or her] client’s
behalf if he [or she] is able effectively to cross-examine prosecution
witnesses and elicit helpful testimony.” (quoting Reinert v. Larkins,
379 F.3d 76, 95 (3d Cir. 2004))) (alterations in original). The jury
ultimately had to decide the significance of the night terrors. See
People v. Randolph, 2023 COA 7, ¶ 33 (the jury weighs the
credibility of witnesses and resolves conflicting testimony) (cert.
granted Sept. 25, 2023).
14 ¶ 30 Further, even if we were to assume that Stayton was
ineffective for failing to research night terrors or call a defense
expert to challenge this testimony, Polat’s postconviction testimony
shows that Wuthrich suffered no prejudice because there is no
reasonable probability the result would have been different. See
Strickland, 466 U.S. at 694. Polat established that there is no
direct link between night terrors and sexual abuse, but she
acknowledged that they could be triggered by stress, trauma, or
insomnia, which could in turn be related to traumatic issues like
sexual abuse. The night terrors were triggered by something, but
their cause was unclear. The prosecution argued the night terrors
were linked to the abuse. Stayton argued the night terrors were
linked to the sexual assault examination.
¶ 31 Because Polat could not diagnose the cause of L.W.’s night
terrors, and indeed she could not rule out trauma related to sexual
abuse, her testimony did not definitively rebut the prosecution’s
theory. Therefore, counsel’s failure to introduce the testimony was
not prejudicial to Wuthrich’s defense. See People v. Chipman, 2015
COA 142, ¶¶ 47-51 (no prejudice from counsel’s failure to retain an
expert to test blood on the defendant’s clothing where expert’s
15 findings would not have substantially supported the defendant’s
theory of defense).
¶ 32 Finally, as the postconviction court noted, the night terrors
video was not the only evidence provided to the jury. We must
consider the impact of the video in light of the totality of the
evidence at trial, including the testimony of the children, mothers,
and experts. See Strickland, 466 U.S. at 689, 695-96.
¶ 33 Considering the night terrors video with the trial evidence and
the strong presumption of reasonableness afforded to counsel’s
performance, without the distortion of hindsight, Stayton was not
ineffective. See id. at 689. And Wuthrich was not prejudiced
regardless. See id. at 689, 695-96. The postconviction court did
not err.
B. Solicitation Case
¶ 34 Next, Wuthrich argues that Stayton was ineffective because he
failed to challenge the admission of evidence concerning Wuthrich’s
solicitation case, or to place the charges in a proper factual context.
1. Testimony at Trial
¶ 35 The prosecution filed a pretrial notice of intent to introduce
evidence about the solicitation case through CRE 404(b) and res
16 gestae.2 Stayton objected, arguing the evidence was improper
character evidence, overly prejudicial, and irrelevant. The court
admitted the evidence.
¶ 36 The solicitation case and an alleged “child prostitute” were
first mentioned during Stayton’s opening statements. D.C. then
testified on direct that Wuthrich was “arrested for soliciting a child
prostitute,” she later learned that Wuthrich lied about a court date
related to these charges, and he “had asked a child to perform oral
sex.” D.C. testified this was why she separated from Wuthrich.
¶ 37 Stayton objected to this testimony because it was “outside of
the 404(b)” notice, and the trial court initially sustained the
objection; but, after the court reviewed the notice, it permitted the
testimony. Stayton later renewed this objection outside the jury’s
presence and argued the prosecution agreed to only discuss that
Wuthrich “was charged with [soliciting a minor] and the age, 15.”
The court overruled the objection and declined to offer a limiting
instruction because it admitted the evidence as res gestae.
2 The Colorado Supreme Court abolished the res gestae doctrine in
Rojas v. People, 2022 CO 8, ¶ 41.
17 ¶ 38 On cross-examination Stayton asked D.C. to describe how she
learned about “the solicitation of a prostitute, a child prostitute.”
D.C. testified that she knew Wuthrich denied soliciting a child, he
contended that he solicited an adult, and Wuthrich pleaded guilty
to solicitation of an adult prostitute. Stayton also asked D.C. if
“soliciting this 15 year old” made her think that Wuthrich may have
sexually abused L.W. Stayton repeatedly referred to the solicited
individual as “a child.” Wuthrich’s brother also testified about the
charges and told the jury that “the final charge was attempt to
solicit a prostitute,” not a child prostitute.
¶ 39 Stayton’s closing argued that the prosecution was trying to
draw an analogy “between a 15-year-old and [Wuthrich’s] own
daughter.” According to Stayton, this did not make sense because
“rather than perpetrate on his kids, [Wuthrich] can get sexual
[gratification from] a prostitute” and “going to a prostitute does not
make people child molester[s].”
¶ 40 Stayton testified that he believed the solicitation case evidence
was going to be admitted at trial and used it to argue that it
explained why the victims’ parents sent them to therapy. Stayton
18 also testified that he wanted to reference the charge first to avoid
any surprises during cross-examination and that Wuthrich agreed
to this strategy.
¶ 41 The postconviction court found that the defense was “in a
position where this highly prejudicial evidence was coming into
court, and they had to address it in some way. They decided to
address it . . . by acknowledging it . . . .” The court also noted that
Stayton used the words “child prostitute” more than anyone else
(aside from D.C.). The court found that Stayton was not ineffective
for directly addressing the charges, but it was deficient to
characterize the individual as a “child prostitute” without a full
explanation.
¶ 42 Yet the court found that while Stayton’s performance was
unreasonable in this regard, the deficiency had not prejudiced
Wuthrich to the degree that a new trial was warranted. The court
noted that Stayton effectively cross-examined D.C. about her
potential bias and her state of mind after learning about the
charges. Further, the court found that the jury had a “complete
picture” of the solicitation case. As a result, the postconviction
court rejected the claim.
19 3. Analysis
¶ 43 According to Wuthrich, Stayton failed to challenge the
evidence of the solicitation case. Instead, Stayton conceded that
Wuthrich solicited a “teenage prostitute,” repeatedly emphasizing
this. And in closing, Wuthrich contends that Stayton “awkwardly”
argued that Wuthrich would not have committed the sexual assault
against the victims because a fifteen-year-old and the child victims
were inapposite. Wuthrich argues that Stayton’s performance was
therefore deficient, and he should have (1) objected to the
admission of the evidence; (2) minimized the damage associated
with its admission by requesting a limiting instruction; and
(3) stressed that Wuthrich never solicited a minor.
¶ 44 Wuthrich argues he was harmed by Stayton’s deficient
performance because the jury “drew negative inferences” about him
when it learned he solicited a prostitute. Wuthrich contends the
postconviction court misconstrued the law by failing to consider
how the outcome of trial might have differed absent Stayton’s
ineffectiveness.
¶ 45 We agree with the postconviction court that Stayton
reasonably discussed the solicitation case to avoid any later
20 surprise, particularly as he knew it was going to be admitted
through CRE 404(b). See Strickland, 466 U.S. at 688-89. Indeed,
the record belies Wuthrich’s contention that Stayton failed to object
to the admission of this testimony; he objected before and during
trial but was overruled, and the court rejected a limiting
instruction.
¶ 46 We also agree with the postconviction court that Wuthrich was
not prejudiced. Assuming without deciding that Stayton’s
performance was unreasonable in some respects, in the face of
prejudicial evidence Stayton knew would be admitted, he attempted
to use the evidence to support Wuthrich’s theory of the case. See
Sharp, ¶ 11; Strickland, 466 U.S. at 697-98. Further, the jury
received all of the information about the solicitation case needed to
make an informed decision.
¶ 47 Stayton’s theory at trial was that the solicitation case
motivated Wuthrich’s divorce and ultimately led to the sexual
assault allegations against him. Stayton also argued that soliciting
an adult prostitute does not equate to assaulting children. And
Stayton suggested that the solicitation case led D.C. to accuse
Wuthrich of assaulting L.W. Further, he elicited testimony
21 demonstrating that Wuthrich believed he solicited an adult
prostitute, the charges for soliciting a minor were dropped, and he
pleaded guilty to solicitating an adult.
¶ 48 As a result, any prejudice that may have resulted from
Stayton’s repeated reference to a child prostitute did not prejudice
Wuthrich because there is no reasonable probability that, but for
these mentions, the result of Wuthrich’s trial would have differed.
See Strickland, 466 U.S. at 694.
C. Prosecution Experts
¶ 49 Next, Wuthrich argues that Stayton was ineffective for failing
to investigate and challenge some of the prosecution’s expert
witnesses, request their reports, or interview them. Specifically,
Wuthrich argues that two witnesses, Giragosian and Terri James-
Banks, were admitted as experts, but Stayton failed to challenge or
prepare for their testimony.
1. Postconviction Testimony and Findings
¶ 50 At the postconviction hearing Stayton testified that he could
not recall if he interviewed these experts or if he requested their
reports, though it was his practice to interview experts. On cross-
examination he stated that, based on his experience, most expert
22 witnesses the prosecution sought to admit were qualified to testify
as experts.3
¶ 51 The postconviction court found that Stayton adequately
prepared for the prosecution’s experts, particularly given that he
was familiar with some of the experts and had prior experience with
similar cases. The court added that while Stayton could have done
additional diligence, he effectively cross-examined Giragosian and
James-Banks to highlight the defense’s theory of the case. And it
noted that after the children recanted on the stand, Stayton and his
co-counsel, Jennifer Henslee, “felt like everything went . . . the best
way it could have gone” and that “every indication was that it was
going well.” Therefore, the postconviction court concluded,
Stayton’s decision not to call additional defense expert witnesses or
do more with the prosecution’s witnesses was reasonable.
2. Analysis
¶ 52 Wuthrich argues that Stayton failed to object to Giragosian’s
and James-Banks’ testimony where that testimony was
3 In a motions hearing on September 21, 2007, the prosecution
represented it would provide the defense with an expert report for James-Banks if she prepared one by November 2; it is unclear if she prepared a report and if this was given to the defense.
23 unsupported by scientific evidence. Wuthrich also contends the
postconviction court misconstrued the law by finding that Stayton’s
cross-examination of the experts was sufficient without considering
whether the decision to forgo investigating the experts before trial
was deficient.
¶ 53 Wuthrich contends he was harmed by these deficiencies
because the expert testimony was “critical in shoring up” the
prosecution’s case by explaining the victims’ denials and
recantations of the abuse. He argues this evidence was especially
harmful because the case turned on the victims’ credibility and the
jury could have deferred to the expert testimony.
¶ 54 Wuthrich specifically highlights James-Banks’ testimony
concerning children who deny that abuse occurred and recant
allegations of abuse, arguing that Stayton should have challenged
her testimony as scientifically unsupported. Wuthrich points to her
testimony that around “85 percent” of children initially deny that
abuse occurred, and that children’s abuse disclosures and outcries
are a “process.”
¶ 55 Wuthrich highlights a 2005 study he argues contradicts
James-Banks’ testimony: Kamala London et al., Disclosure of Child
24 Sexual Abuse: What Does the Research Tell Us About the Ways that
Children Tell?, 11 Psych. Pub. Pol’y & L. 194, 217 (2005) (A meta-
analysis of multiple studies about child sexual abuse and children’s
disclosures concluded that “most children do disclose abuse within
the first or second” formal investigative interview and “[o]nly a small
minority of these children recant their abuse reports.”). Wuthrich
also points out that the New Jersey Supreme Court held — in 2018
(citing the same study and updated reports) — that evidence
concerning “Child Sexual Abuse Accommodation Syndrome” and its
“components” (secrecy, helplessness, accommodation, delayed
disclosure, retraction, and denial) are generally inadmissible at trial
because, except for delayed disclosures, there is no consensus
among experts for each component. State v. J.L.G., 190 A.3d 442,
458-65 (N.J. 2018), holding modified, State v. Olenowski, 289 A.3d
456, 468-69 (N.J. 2023) (explaining that while the court previously
relied on the standards in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923), for its determination in J.L.G., it was now adopting a
standard more akin to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), to determine the admissibility of expert
testimony in criminal cases).
25 ¶ 56 As for Giragosian, Wuthrich argues that her testimony that
abused children exhibit “symptomology” lacks scientific support.
But we have already addressed the night terrors concern and
Giragosian’s testimony.
¶ 57 Wuthrich argues that with proper investigation of the experts,
Stayton “could have challenged their opinions through pretrial
Shreck litigation” or by calling defense experts. See People v.
Shreck, 22 P.3d 68 (Colo. 2001). But Stayton, based on his
experience, reasonably predicted that these witnesses would be
permitted to testify as experts and effectively cross-examined them
to challenge their testimony and buttress the defense’s case theory.
His performance was not unreasonable. See Newmiller, ¶ 60;
Strickland, 466 U.S. at 688-89.
¶ 58 For example, Stayton cross-examined James-Banks about the
proper criteria for interviewing child abuse victims; concerns with
suggestibility, false allegations, and leading questions; and whether
her interviews conformed to these criteria. Stayton also challenged
James-Banks’ testimony that divorce has no impact on rates of
false allegations, testimony Wuthrich challenges on appeal, by
pointing out that forensic interview guidelines ask interviewers to
26 investigate further when only one parent believes abuse occurred.
Stayton also questioned whether the victims’ evolving allegations
against Wuthrich could signal confabulation.
¶ 59 Further, even if Stayton should have challenged the experts
via Shreck, there is no reasonable probability that the outcome
would have differed because the experts would likely have been
permitted to testify. See Strickland, 466 U.S. at 691-92, 694; see
also Shreck, 22 P.3d at 77 (CRE 702 does not demand that expert
testimony be unchallenged by the scientific community or reflect a
general consensus on the issue; CRE 702 is intended to be flexible);
People v. Cooper, 2021 CO 69, ¶ 53 (“While generalized expert
testimony must fit the case, the fit need not be perfect. In other
words, each aspect of such testimony need not match a factual
issue. . . . [T]he fit inquiry must be flexible.”).
¶ 60 The admission of scientific evidence is a “flexible, fact-specific”
inquiry that “contemplates a wide range of considerations that may
be pertinent to the evidence at issue.” Shreck, 22 P.3d at 77. Such
an inquiry may include “whether the technique has been generally
accepted” by the scientific community, but CRE 702 focuses on the
“reliability and relevance of the scientific evidence” and requires “a
27 determination as to (1) the reliability of the scientific principles;
(2) the qualifications of the witness; and (3) the usefulness of the
testimony to the jury.” Shreck, 22 P.3d at 77-79. And testimony
about the general characteristics of child sexual abuse victims has
long been admitted in Colorado courts, before and after Wuthrich’s
trial. See, e.g., People v. Gillispie, 767 P.2d 778, 780 (Colo. App.
1988) (“It is proper, for instance, to elicit an opinion as to whether
children, in general, have the sophistication to lie about having
experienced a sexual assault.”); People v. Gaffney, 769 P.2d 1081,
1086 (Colo. 1989) (collecting cases demonstrating where expert
testimony about general characteristics of child victims was
permitted); People in Interest of J.R., 2021 COA 81, ¶ 20 (“[A]n
expert in a child sexual assault case can testify about the general
characteristics and behavior of sexual abuse victims . . . .”).
¶ 61 As a result, Wuthrich suffered no prejudice. At most, based
on the record before us, James-Banks’ testimony and the study
Wuthrich highlights show there is disagreement in the field about
these issues. But this would not have made the evidence inherently
inadmissible. CRE 702’s flexibility and Colorado’s long acceptance
of such evidence, see Shreck, 22 P.3d at 77-79; see also J.R., ¶ 20,
28 supports the conclusion that Stayton’s decision not to challenge
this evidence before trial was reasonable. Thus, we discern no error
in the postconviction court’s findings.
D. Bolstering Testimony
¶ 62 Next, Wuthrich argues that Stayton was ineffective because he
failed to object to expert testimony that improperly bolstered the
victims’ credibility. Specifically, he argues that Celeste Gammelin,
a forensic interviewer, improperly testified on redirect that it was a
“good thing” M.C. responded with “I don’t know” to questions about
the alleged abuse because when children “are lying . . . about sex
abuse, which they don’t have the knowledge about, . . . they
often . . . wouldn’t say ‘I don’t know,’ they would make up another
lie to fill in that information for me.” Wuthrich also challenges
Giragosian’s testimony that she was not surprised L.W. said she
could not remember or denied that abuse had occurred in court
because court can be intimidating and James-Banks’ testimony
that “85 percent” of children initially deny abuse occurred.
¶ 63 Stayton testified at the postconviction hearing that he did not
object to these experts’ challenged testimony at trial but that he
29 should have. The postconviction court found that Stayton objected
to some testimony at trial, and “he may not have done it every time,
but he did use his discretion in making objections,” but his
objections were overruled. The court found that Stayton’s
performance was not deficient and rejected the claim.
¶ 64 The improper bolstering testimony that Wuthrich now
challenges in connection with his ineffective assistance claims was
addressed in his prior direct appeal from 2011. A division of this
court concluded that none of this testimony was improper because
it properly related to child victims’ general characteristics.
Wuthrich, No. 08CA0972, slip op. at 10-15, 18-22; see People v.
Relaford, 2016 COA 99, ¶ 28 (“‘[A]n expert may testify as to the
typical demeanor and behavioral traits displayed by a sexually
abused child.’ This type of testimony is generally admissible
because it assists the jury in understanding the victim’s behavior
after the incident — why the victim acted the way he or she did.”)
(citation omitted); see also Cooper, ¶¶ 67-74.
¶ 65 The current challenge is slightly different because Wuthrich
now contends that Stayton’s performance was unreasonable
30 because he failed to object. While conceding that experts may
testify about victim characteristics generally, Wuthrich argues he
was harmed by this error because the case hinged on the victims’
credibility.
¶ 66 We agree with the postconviction court, however, and conclude
that Stayton’s performance was reasonable. “Effective assistance of
counsel, as guaranteed by the sixth amendment, does not require
an attorney to object to every possible error.” People v. Bossert, 722
P.2d 998, 1010 (Colo. 1986). Indeed, as the postconviction court
noted, Stayton exercised discretion in objecting. For example, after
Giragosian’s challenged testimony Stayton objected for speculation
when the prosecution asked if a child might feel more comfortable
in court “if she got to know all of us fairly well and trust us over a
period of five months?” as a child would have in therapy. Stayton
also objected to a portion of Gammelin’s testimony when the
prosecution asked, “Is it your job to also try and determine if you’re
receiving truthful content?” Stayton objected, arguing that
Gammelin “cannot testify whether statements are truthful or not,”
and the court sustained the objection.
31 ¶ 67 That Stayton chose not to object to the specifically challenged
testimony, however, was not unreasonable. This is especially true
given that, as the prior division held in Wuthrich’s direct appeal
and Wuthrich concedes in this appeal, experts may generally testify
to the general characteristics of child sexual assault victims. See,
e.g., Relaford, ¶ 28; J.R., ¶ 20. Had Stayton objected to the specific
challenged testimony, there is not a reasonable probability that the
outcome of trial would have been different because the objections
would likely have been overruled.
¶ 68 Stayton was not ineffective for failing to object to the
challenged testimony. See Strickland, 466 U.S. at 688-89. This is
particularly true in light of the prior division’s conclusion that the
challenged testimony was proper. Wuthrich, No. 08CA0972, slip op.
at 10-15, 18-22; see also Relaford, ¶ 28. The postconviction court
did not err.
E. Child Hearsay
¶ 69 Next, Wuthrich contends Stayton was ineffective because he
failed to challenge the admission of child hearsay evidence.
32 1. Testimony at Trial
¶ 70 The prosecution filed pretrial notices of intent to introduce
child hearsay evidence, and the court held two hearings on the
issue.
¶ 71 In September 2007 the court held a hearing to admit child
hearsay statements, through C.C.’s and M.C.’s mothers, detailing
the disclosures the victims made to them. At the end of these
witnesses’ testimony Stayton stipulated to the admissibility of
M.C.’s hearsay testimony in a forensic interview with a detective.
He then stated in regard to M.C.’s and C.C.’s testimony: “Normally,
occasionally, I object to this kind of testimony; but candidly, we’d
like to introduce this testimony.” Stayton added that “I just want to
make a record, because we as defense lawyers are constantly
second-guessed, . . . I understand [section] 13-25-219[, C.R.S.
2007], and I’m making a conscious decision here that I want this
testimony in.” He also stated, “I’m not sure, frankly, it meets the
standard of [section] 13-25-129 because the multiple views,
suggestibility, et cetera, but we want it in.” Stayton stipulated to
the safeguards of reliability in section 13-25-129(1)(a), C.R.S. 2007.
33 ¶ 72 The trial court then found that the statements (1) were not
made with a specific concern about the defendant and were
“spontaneous” in that sense, “although we know some of them were
made in response to generalized safety conversations with all the
children and the parents”; (2) were not made while the children
were in pain from alleged abuse but while clearly upset given their
demeanor; (3) used appropriate language for young children;
(4) mostly were not the result of leading questions; and (5) were
made without indication of bias by the children against the
defendant. Thus, while the court noted that there were “a number
of events which occurred between the times of the alleged abuse
and the times of the statements,” ultimately it accepted the
stipulation because the circumstances provided “sufficient
safeguards of reliability.”
¶ 73 In November 2007, the trial court held another hearing
concerning the victims’ child hearsay to forensic interviewers and
therapists (Giragosian, Gammelin, and Jennifer Martin, a forensic
interviewer). Stayton again stipulated to the admissibility of these
statements, noting that “we would be calling these people ourselves
anyway.” He added that “we agree[] these meet 13-25-129
34 requirements,” but the defense did not believe they would be
“admissible at trial” on all bases and could become cumulative.
¶ 74 The court, after viewing recordings of the interviews, found
that the children’s statements (1) were not made spontaneously;
(2) used age-appropriate language; and (3) were overwhelmingly not
made in response to leading questions. As a result, the court found
that the children’s statements had “sufficient safeguards of
reliability” to be admitted at trial. As to L.W.’s statements in
therapy, it noted that the psychologist-patient privilege had been
waived for L.W.’s statements to Giragosian but that there was no
recording of these statements to independently review; therefore it
admitted the hearsay because Stayton had not objected.
¶ 75 In the postconviction hearing Stayton explained that he
stipulated to the hearsay statements’ admissibility because “[t]hey
were going to come in anyway” and he believed the statements met
the statutory requirements for reliability. On cross-examination,
Stayton agreed the hearsay statements would have come in as prior
inconsistent statements.
35 ¶ 76 The postconviction court found that, while an argument could
be made that this was a part of Stayton’s trial strategy, Stayton
should have moved to exclude the hearsay and that the failure to do
so was deficient. But the court also found that “looking at the
totality of the circumstances and considering that there are other
exceptions to the hearsay rule,” it could not “find that the defendant
was deprived of a fair trial because likely all [of] those statements
were coming in. They could come in under impeachment,
inconsistent statements, the residual hearsay exception, as well as
child hearsay.” Furthermore, the decision not to challenge the
children’s hearsay statements was part of the defense’s strategy “to
highlight the inconsistency in the statements.” As a result, the
¶ 77 Wuthrich argues that Stayton was ineffective for stipulating to
the admissibility of statements that (1) L.W. made in forensic
interviews and to Giragosian; (2) C.C. made in forensic interviews
and to her parents; and (3) M.C. made to her mother, police, and
Gammelin. Wuthrich argues that, while the court correctly found
Stayton’s performance was deficient, it misapplied the law by
36 finding that he was not deprived of a fair trial. Wuthrich argues
that he was harmed by the statements’ admission because their
exclusion would have undermined the prosecution’s case and made
his acquittal more likely.
¶ 78 We conclude that Stayton acted reasonably by stipulating to
the admissibility of these statements and therefore disagree with
the postconviction court’s conclusion that Stayton’s performance
was deficient because he did not attempt to exclude the statements.
But we agree with the postconviction court that, regardless,
Wuthrich was not prejudiced because the statements were likely
admissible, so there is not a reasonable probability the outcome of
the case would have differed.
¶ 79 Stayton testified at both motions hearings that he wanted to
probe the hearsay statements. At the September hearing he stated
explicitly that he wanted the testimony to be admitted and that this
was a conscious decision. And at the November hearing he stated
that the defense would have called the witnesses “anyway.” In both
hearings the trial court independently reviewed the challenged
testimony and found that it enjoyed sufficient safeguards of
37 reliability to allow admission, though it could not independently
review a recording of L.W.’s statements to Giragosian.
¶ 80 All the victims testified at trial, and the trial court simply
needed to find that “the time, content, and circumstances of the
statement[s] provide sufficient safeguards of reliability,” justifying
the application of the child hearsay exception. § 13-25-129(1)(a),
C.R.S. 2007; see also § 13-25-129(5)(a), C.R.S. 2024. To make this
determination the trial court looked to the factors provided in
People v. Trujillo, 923 P.2d 277, 282 (Colo. App. 1996), and while it
found that not all factors had been established, most supported
admission of the testimony. See People v. Rojas, 181 P.3d 1216,
1219 (Colo. App. 2008) (“Failure to establish all factors favoring
admission does not foreclose the admissibility of a statement.”).
The record supports the trial court’s determinations, and a “trial
court’s findings concerning reliability of a child-victims’ out-of-court
statements will not be disturbed on appeal if they are supported by
the record.” Trujillo, 923 P.2d at 282. This also applies to the
statements L.W. made to Giragosian, as Giragosian’s trial testimony
indicates that the hearsay testimony was supported by sufficient
safeguards of reliability. See Rojas, 181 P.3d at 1219 (while the
38 trial court should make specific findings on the statements at issue,
“its decision to admit the child’s hearsay statements will be affirmed
even absent such findings if the record shows an adequate factual
basis to support the trial court’s determination”).
¶ 81 In sum, Stayton reasonably predicted that the statements
would have been admissible at trial anyway and reasonably
concluded that the inconsistencies in the statements would aid the
defense; thus it was not unreasonable for Stayton to make a
strategic decision to stipulate to their admissibility. See Bossert,
722 P.2d at 1010; see also Sharp, ¶¶ 31-33 (where defendant
alleges counsel was ineffective for failing to file a motion, he “must
demonstrate actual Strickland prejudice by proving that the motion
would have been granted”). Indeed, Stayton needed these hearsay
statements to be admitted at trial to argue the defense’s theory of
the case. Without referencing when the victims did and did not
accuse Wuthrich of abuse, the defense would not have been able to
highlight the long period between the first discoveries of the victims’
inappropriate behavior and the disclosures of abuse, which the
defense used to argue that the allegations against Wuthrich were
false.
39 ¶ 82 Furthermore, the defense’s strategy would have allowed the
statements to be admitted as prior inconsistent and consistent
statements — by the prosecution to rehabilitate witness testimony
or by the defense for impeachment. See People v. Eppens, 979 P.2d
14, 22 (Colo. 1999) (the admission of a child sexual assault victim’s
“prior consistent statements was necessary to give the jury an
appropriately complete picture of her credibility as a witness” after
the defense sought to undermine the victim’s credibility by
highlighting inconsistencies); see also People v. Elie, 148 P.3d 359,
362 (Colo. App. 2006) (“A prior consistent statement is also
admissible for rehabilitation after a witness has been impeached by
a prior inconsistent statement.”); People v. Aldrich, 849 P.2d 821,
826 (Colo. App. 1992) (child sexual assault victim’s hearsay
statements were admissible as prior inconsistent statements where
the declarant was available to testify).
¶ 83 Collectively, because the victims’ hearsay statements were
likely admissible under section 13-25-129, C.R.S. 2007, and
contained prior consistent and inconsistent statements, it was
reasonable for Stayton to rely on his experience to stipulate to their
admissibility. See Bossert, 722 P.2d at 1010. And regardless,
40 Wuthrich suffered no prejudice where some of the statements
supported his defense. See Sharp, ¶¶ 31-33.
F. Victims’ Competency
¶ 84 Next Wuthrich argues that Stayton was deficient because he
failed to challenge the young victims’ competency to testify at trial.
¶ 85 The prosecution began each victim’s direct examination with a
brief competency examination using largely identical questioning.
For example, the prosecution asked L.W. if she knew her age, the
name of her father, the names of the other victims, and information
about her family. The prosecution then asked if L.W. recognized
and knew the colors of various markers, if L.W. knew the difference
between a truth and a lie, and what it meant to tell the truth. The
prosecution asked L.W. to demonstrate her understanding by
showing that she understood it would be a lie to agree that a red
marker is yellow, while it would be truthful to agree a yellow marker
was yellow. The prosecution also asked each victim to promise to
tell the truth before they began their substantive testimony. The
defense did not object to this questioning.
41 2. Postconviction Testimony and Findings
¶ 86 At the postconviction hearing Stayton testified that he chose
not to challenge the victims’ competency because, based on his
experience, he expected the children would be found competent to
testify.
¶ 87 The postconviction court found that while Stayton did not
request a competency hearing, the prosecution’s “short competency
hearing[s] prior to getting into anything substantive” at trial were
appropriate and “highlighted that they were competent to testify.”
The court further noted that Stayton made a strategic decision to
“meet the children in the courtroom for the first time at the time of
trial,” rather than allow the children to become familiar with him by
asking questions about their competency or the admissibility of
their statements.
¶ 88 Wuthrich argues that Stayton’s explanation for not challenging
the children’s competency was not based on investigation or
research. Wuthrich also argues the court improperly credited
Stayton’s strategy explanation.
42 ¶ 89 We agree with the postconviction court that Stayton’s decision
not to challenge the victims’ competency was a reasonable strategic
decision based on his experience. See Newmiller, ¶ 60. Further,
Wuthrich was not prejudiced; even if Stayton had demanded a
competency hearing, there is no reasonable probability that the
outcome of trial would have differed. Strickland, 466 U.S. at 691-
92. Stayton’s decision proved to be reasonable given that the
prosecution sufficiently demonstrated at the beginning of each
victim’s testimony that they could relay information about
themselves and their families, understood the difference between
truth and lies, and promised to tell the truth. See People v. Collins,
2021 COA 18, ¶ 30.
¶ 90 Stayton was experienced trial counsel who reasonably chose to
question the victims for the first time at trial. See Newmiller, ¶ 60,
Strickland, 466 U.S. at 688-89. And the trial court allowed the
victims to testify after they demonstrated their competence, so
Wuthrich suffered no prejudice. See Strickland, 466 U.S. at 691-
92.
43 G. Conflicted Representation
¶ 91 Next, Wuthrich argues that Stayton had a conflict of interest
because he was training with the National Guard before trial.
¶ 92 Stayton testified that when he worked on Wuthrich’s case he
was a National Guard staff sergeant and knew there was a
“possibility of being deployed” when he was hired in April 2007.
But he testified that he was permitted to maintain private
employment. He received “state” orders in September 2007, which
required him to begin active duty and attend in-person training in
Arkansas from October 1, 2007, until January 1, 2008. And
Stayton knew he could be deployed again under “federal” orders at
the beginning of January and was later deployed overseas in March
2008.
¶ 93 Stayton testified that his duties made him unavailable for two
weeks in October, requiring rescheduling of the trial, and another
two weeks at the end of November through early December. Trial
began on December 17. Stayton testified that his training in this
entire period was not “really substantial,” he had “a lot of down
time,” and training did not prevent him from preparing for trial.
44 ¶ 94 Stayton testified that he received leave “most” weekends to
return to Colorado, and during the week if needed, that he returned
to Colorado in October for one day and “several” times in November
and was “going home frequently,” and that he was able to work on
Wuthrich’s case in his downtime. Stayton also testified that
Wuthrich was aware of the deployment and agreed to Stayton
remaining on the case, even after Stayton offered to connect
Wuthrich with a different lawyer. However, Stayton never asked
Wuthrich to sign a written waiver. Stayton insisted that his
Arkansas deployment “did not interfere” with his representation of
Wuthrich and that he had “plenty of time” for his case.
¶ 95 As relevant to the allegations that Stayton failed to review and
familiarize himself with discovery and failed to obtain “necessary
documents,” the postconviction court found that the only times
Stayton’s military service could have conflicted with his
representation of Wuthrich was at the September 2007 motions
hearing where he failed to “put up a fight as to the child hearsay.”
Henslee testified that she thought Stayton did not cross-examine
witnesses at the hearing because he may have had a speaking
engagement to go to, though she added that “aside from that . . .
45 [h]e was totally engaged in this case.” Stayton rejected any
suggestion that he did not challenge the child hearsay issue
because of a lack of time.
¶ 96 The postconviction court found that Stayton had not acted
deficiently and that he properly obtained and reviewed documents
for trial. The court noted that it “was very clear to the Court . . .
how invested [Stayton] was in Mr. Wuthrich at the time of trial and
how invested he is in Mr. Wuthrich at [the postconviction hearing].”
As a result, it rejected the claim that Stayton’s military service
created a conflict.
¶ 97 Wuthrich contends that Stayton knew he could be called to
active duty. He says that while Stayton advised him of that
possibility, Wuthrich never signed a conflict waiver, and Stayton’s
duties in the National Guard prevented him from adequately
preparing for the case. Wuthrich argues that the conflict caused
Stayton to forgo reasonable alternative strategies and adversely
affected the representation.
¶ 98 We agree with the postconviction court. We have found no
evidence in the record demonstrating that Stayton acted under an
46 actual conflict of interest preventing him from adequately preparing
for — and representing Wuthrich at — trial. Stayton did mention in
the September 2007 hearing that he was concerned they would be
unable to finish in time as he had another hearing at 1:00pm that
could not be rescheduled because he had “to catch a plane at 4:00.”
But these limited comments do not establish that Stayton’s military
service created an actual conflict.
¶ 99 When reviewing allegations that defense counsel was
“burdened by an actual conflict of interest,” courts employ a limited
“presumption of prejudice” “if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an
actual conflict of interest adversely affected his lawyer’s
performance.’” Strickland, 466 U.S. at 692 (quoting Cuyler v.
Sullivan, 446 U.S. 335, 348, 350 (1980)). “[A]n actual conflict of
interest [is] one that is ‘real and substantial.’” People v. Harlan, 54
P.3d 871, 878 (Colo. 2002) (citation omitted). But “the possibility of
conflict is insufficient to impugn a criminal conviction.” Cuyler, 446
U.S. at 350.
¶ 100 Wuthrich has only demonstrated that there was, at best, a
possibility that Stayton might have been conflicted. And Wuthrich
47 essentially contends that Stayton was too busy to prepare for trial
instead of alleging that he operated under an actual conflict, and
even this allegation is tenuous. Wuthrich highlights many issues
he contends demonstrates that Stayton was conflicted, such as his
alleged failures to prepare for expert testimony or stipulating to the
admission of the child hearsay evidence. But these contentions are
conclusory and do not show that Stayton operated under an actual
conflict of interest that adversely affected his performance. See id.
at 348, 350. These issues are largely reasonable strategic trial
decisions that Wuthrich now challenges in hindsight.
¶ 101 Stayton was the first to state that he felt he could have been
more effective at trial, but he was adamant that his military service
had not affected his representation of Wuthrich. To the contrary,
he testified that his duties during training were not all that
substantial or physically exhausting, he had a great deal of
downtime that allowed him to work on Wuthrich’s case, he returned
to Colorado frequently during the week and on weekends, and he
kept the trial court and Wuthrich informed about his military
duties. The postconviction court did not err.
48 H. Failure to Present Exculpatory Evidence
¶ 102 Wuthrich next argues Stayton acted deficiently because he
failed to present certain evidence. Stayton testified that the
decision to not introduce additional evidence or witnesses was
mostly because of the children’s surprising recantations, and he
wanted to “get the case to the jury” quickly to avoid the prosecution
being able to “rehabilitate” its case by questioning additional
witnesses. Wuthrich contends that the postconviction court erred
by crediting Stayton’s unreasonable explanation for not introducing
this evidence at trial.
1. M.C.’s and C.C.’s Therapy Records and Interview Recordings
¶ 103 Wuthrich contends that Stayton should have introduced
therapy records for M.C. and C.C. Wuthrich further argues that
Stayton should have introduced video of other interviews where the
victims denied abuse occurred.
¶ 104 Stayton testified in the postconviction hearing that he was
unsure if he had therapy records for C.C. and M.C. Stayton also
testified that he was able to introduce evidence of L.W.’s therapy
sessions because Wuthrich, as L.W.’s father, signed a release for
49 these records. But M.C.’s and C.C.’s therapy records were
privileged.
¶ 105 Stayton also testified that — instead of admitting videos of
interviews where no disclosures occurred — he created an exhibit
that summarized all of L.W.’s therapy visits with Vicki Fly, L.W.’s
first therapist, and Giragosian and pointed out when the outcries
were made. Further, he felt admitting other videos without
disclosures “drags out the case,” especially as he had cross-
examined other witnesses about these interviews. Stayton also
testified that admitting video of the examinations could have
bolstered the prosecution’s case.
¶ 106 The postconviction court found that Wuthrich, as L.W.’s
father, could allow access to L.W.’s therapy records. But no such
possibility existed for M.C.’s and C.C.’s therapy records because he
could not waive their privilege, and thus it was reasonable not to
seek these records. We agree.
¶ 107 Wuthrich provides no theory under which Stayton could have
obtained M.C.’s and C.C.’s privileged therapy records, see § 13-90-
107(1)(g), C.R.S. 2024, other than those that formed the basis of a
child abuse report. See People v. Sisneros, 55 P.3d 797, 800 (Colo.
50 2002) (“[T]he psychologist-patient privilege protects testimonial
disclosures as well as pretrial discovery of files or records derived or
created in the course of the treatment. . . . Defendant bears the
burden of establishing a waiver of the privilege . . . .”); see also
§§ 19-3-311(1), -304(1)(a), (2)(p), C.R.S. 2024.
¶ 108 As for videos of interviews where the victims did not make
disclosures, it was reasonable for Stayton to strategically decide not
to admit these because they would have unnecessarily dragged out
the case and would have subjected witnesses to potentially
damaging examination without much benefit. See Strickland, 466
U.S. at 690 (“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable . . . .”); see also Dunlap v. People, 173 P.3d 1054,
1075 (Colo. 2007) (“If trial counsel had a reasonable basis for a
strategic decision, then the decision enjoys a strong presumption of
correctness and the inquiry is generally at an end.”).
¶ 109 Furthermore, Stayton elicited testimony from witnesses that
the victims did not make disclosures in earlier interviews and that
there was substantial time between when the victims initially began
therapy and were interviewed and when they made the allegations
51 against Wuthrich. Indeed, this was a major theme of the defense’s
case. And as Stayton pointed out, he specifically made exhibits
showing the jury that L.W. had been in therapy with Fly and
Giragosian for an extended period before she disclosed the abuse
and that in many sessions she did not make any such allegations.
Introducing other videos may well have been cumulative.
¶ 110 Collectively, Stayton acted reasonably and the postconviction
court did not err.
2. Spiegle’s Attendance at Trial
¶ 111 Wuthrich next contends that Stayton should have required Dr.
Richard Spiegle, the defense’s forensic interview expert, to sit
through additional testimony at trial, but because he did not,
Spiegle was later unable to adequately respond to the prosecution’s
expert’s testimony. Wuthrich alleges that Stayton made the
decision for personal financial reasons.
¶ 112 Stayton testified at the postconviction hearing that, to support
the defense’s theory of the case, he elicited testimony from Spiegle
about (1) concerns with the forensic interviews, including a
statement that a victim’s parent “helped” her remember;
52 (2) repeated therapy sessions in which adults pressed the children
for answers; and (3) whether the parents influenced the children.
¶ 113 The record supports that Stayton effectively elicited testimony
concerning problems Spiegle believed occurred in the victims’
forensic interviews. For example, Spiegle discussed the guidelines
for forensic interviews with children and stated that, in his opinion,
the forensic interviews he reviewed did not meet these criteria. He
testified that he believed the interviewers “mischaracterized” what
the victims said, improperly asked the same questions repeatedly,
and failed to follow up when the victims told interviewers they knew
about things because “people told” them. Spiegle also said it was a
“red flag” when only one parent believes abuse occurred and
repeatedly asks the child about the perceived abuse over long
periods of time because children are susceptible to suggestions.
¶ 114 Stayton testified at the postconviction hearing that he did not
further follow up on this questioning because, again, he wanted to
“get the stuff out” after the children recanted allegations of abuse.
Stayton also testified that he felt that the defense had already made
“great headway” through Spiegle’s testimony and Giragosian’s and
53 James-Banks’ cross-examinations and that he had successfully
advanced Wuthrich’s case.
¶ 115 The postconviction court found that it was part of Stayton’s
trial strategy to not have Spiegle sit through unnecessary
testimony, especially given his experience working with Spiegle and
his familiarity with the testimony he planned to elicit. We agree
with the postconviction court’s rejection of the claim.
¶ 116 In essence, Wuthrich’s claim on appeal is that Stayton should
have used Spiegle to elicit testimony on the studies and evidence
Wuthrich highlighted in Part III.C.2 (above). But Spiegle was
admitted as an expert for a particular purpose — to call out
perceived problems with the victims’ forensic interviews. And
Stayton effectively elicited testimony on this subject. That Spiegle
did not sit through all of trial to hear the testimony that Wuthrich,
in hindsight, now argues he should have been able to respond to
does not render Stayton’s performance ineffective. Nor was Stayton
ineffective for strategically choosing to move the case forward so the
jury could begin deliberations. At the time, Stayton believed that
the trial was going well — a decision he made in light of his
experience. See Newmiller, ¶ 60; Strickland, 466 U.S. at 688-89.
54 ¶ 117 Stayton’s decision to not have Spiegle sit through all of the
trial was a reasonable strategic decision, and the postconviction
3. Additional Potentially Helpful Witnesses
¶ 118 Wuthrich also contends Stayton should have called L.W.’s
pediatrician, Dr. Robert Bucknam, and Emily Griffis, a court-
appointed evaluator for visits between Wuthrich and L.W. during
Wuthrich’s divorce case, contending both would have offered helpful
testimony. Wuthrich also contends Stayton should have called Fly
to testify because he told the jury in opening statements that it
would hear from her.
¶ 119 Stayton testified that Griffis submitted a report during the
divorce stating that, in the time period in which the assaults
allegedly occurred, she had no concerns about Wuthrich and L.W.
Stayton could not recall why he did not call Griffis to testify. But he
testified that he did not call Bucknam because “[a]ll he could testify
to is that there was no physical findings” and Stayton did not think
this would be helpful.
¶ 120 Stayton also testified that he chose not to call Fly to testify, or
introduce videos of her therapy sessions with L.W., because he
55 wanted to get the case to the jury quickly and believed he had
enough information through other witness testimony. Additionally,
he had examined Fly before and believed she had “an agenda.”
¶ 121 The postconviction court found that the decision not to call
these witnesses was a deliberate decision given “what had
happened on the stand, what had been elicited, what had been
conceded,” especially after the victims recanted on the stand. Thus,
the court rejected the claim as one “based in hindsight” and found
there was no basis for a new trial. We agree.
¶ 122 “Whether to call a particular witness is a tactical decision,
and, thus, a matter of discretion for trial counsel.” Davis v. People,
871 P.2d 769, 773 (Colo. 1994); see also Strickland, 466 U.S. at
690. Stayton felt that trial was going well and wanted to get the
case to the jury without allowing the prosecution to rehabilitate its
case with Griffis’ and Bucknam’s testimony. This was a reasonable
strategic choice made in light of Stayton’s experience. See
Newmiller, ¶ 60; Strickland, 466 U.S. at 688-89.
¶ 123 This is true even with respect to Fly, who was named in
Stayton’s opening statement. After the defense detailed that L.W.
56 first began therapy after meeting with detectives in March 2006,
Stayton stated,
Who do they choose as a therapist? They choose Vicki Fly. You’ll hear from Vicki Fly. We’re going to bring her in. Vicki Fly used to be a forensic interviewer. Her job was to get children to discuss issues of abuse. . . . In July of ‘05 after 22 therapy sessions with Vicki Fly, a former forensic interviewer [L.W.] is still saying, [n]othing happened with dad. So what happens? Vicki Fly leaves that particular position. She refers [L.W.] to a Susan Giragosian.
¶ 124 Thus, Fly’s purpose would have primarily been to show that
L.W. had been in therapy well before L.W. made her first disclosures
in therapy with Giragosian. Even if failing to call a witness
mentioned in opening statements may prejudice a defendant,
Wuthrich points to no specific crucial testimony that was omitted.
See Dunlap, 173 P.3d at 1075-76 (“[F]ailing to produce evidence
promised in the opening statement can be an unreasonable and
prejudicial decision which denies a defendant the effective
assistance of counsel. Determining whether the failure to call a
promised witness is ineffective assistance of counsel is necessarily
fact-based.”) (citations omitted).
57 ¶ 125 Stayton strategically decided not to call Fly, believing she
could damage Wuthrich’s case without much benefit. The point he
sought to make — that L.W. had been in therapy with Fly for a long
time before L.W. first disclosed abuse — was admitted through the
defense’s exhibits and witness testimony concerning L.W.’s therapy
sessions. See id. at 1075 (“The course of a trial can affect and alter
an original defense strategy, and may lead to reasonable decisions
not to call witnesses who were mentioned in the opening
statement.”).
¶ 126 Finally, even assuming Stayton was ineffective for failing to
call these witnesses, Wuthrich points to no specific evidence
Stayton could have elicited that creates a reasonable probability
that the outcome of trial would have differed had they testified; thus
he was not prejudiced, and the postconviction court did not err.
4. D.C.’s Bias
¶ 127 Wuthrich next contends that Stayton told the jury it would
hear evidence concerning D.C.’s “agenda” but failed to cross-
examine her about her conduct during the divorce proceedings.
58 ¶ 128 Wuthrich points to the original postconviction petition for
factual support of D.C.’s bias. But in the postconviction hearing,
little testimony was elicited on the subject of D.C.’s bias and the
divorce. There were brief mentions of a “divorce binder” that
Wuthrich’s mother prepared, which Stayton said he had and which
showed, as the prosecution’s postconviction counsel put it, that
“the divorce was not precipitated because of the [solicitation]
conviction.” In fact, Wuthrich and D.C. “actually reconciled after
that conviction.”
¶ 129 Instead, it was “finding pornography that led to the divorce,”
and “the binder contained information about the type and volume of
pornography the defendant had.” Stayton testified that he did not
want to use the binder at trial “because he was concerned about
explaining the pornography,” and “about opening the door.” Klein,
Wuthrich’s legal expert at the postconviction hearing who
“crystallized” Wuthrich’s claims, testified that this binder may have
also contained a summary of Wuthrich’s “pornography habit” that
included mentions of oral sex, other “bad acts,” and the solicitation
case.
59 ¶ 130 The postconviction court found that Stayton used “sound trial
strategy and discretion as to what to cross-examine on, how long to
conduct the cross-examination, and what would be effective” when
examining D.C. given the totality of the circumstances and the
evidence already elicited. We agree.
¶ 131 “[D]ecisions concerning whether and how to conduct cross-
examination are strategic ones committed to counsel’s discretion.”
People v. Smith, 2022 COA 56, ¶ 31 (citing Arko v. People, 183 P.3d
555, 558 (Colo. 2008)), rev’d on other grounds, 2024 CO 3. Stayton
effectively cross-examined D.C. at trial about her reasons for
separating from Wuthrich, why she thought Wuthrich assaulted
L.W., and her decisions to put L.W. into therapy. For example,
Stayton cross-examined her about her motivations for filming the
night terrors video and whether she prepared it “with court in mind”
and her reasoning for not telling the pediatrician. Stayton also
cross-examined D.C. about her decision to send L.W. for further
sexual assault examinations when her pediatric exam was
“normal,” as were other examinations. Stayton also asked D.C.
whether she was “convinced” that Wuthrich assaulted L.W. because
of the allegations in the solicitation case.
60 ¶ 132 All of this is to say that Stayton’s decision not to cross-
examine D.C. about her potential biases based on issues in the
divorce case was a reasonable strategic decision. Id. That
Wuthrich now disagrees with this approach in hindsight does not
render Stayton ineffective. See Strickland, 466 U.S. at 688-90.
I. Cumulative Error
¶ 133 Finally, Wuthrich argues that collectively these alleged errors
— even if they do not merit reversal and a new trial in isolation —
constitute cumulative error that requires reversal because, together,
they undermined his defense and strengthened the prosecution’s
weak case.
¶ 134 The postconviction court looked to “two potential avenues for
cumulative” error: Stayton’s military service commitments and the
admission of certain prejudicial evidence. The court, again, rejected
the idea that Stayton was ineffective because of his military service
commitments, finding there was no basis for this claim and that
Stayton was dedicated to Wuthrich’s case. As for prejudicial
evidence, the court found that when looking without hindsight to
the totality of the evidence presented to the jury, both prejudicial
and corroborating, it could not “find that there was a reasonable
61 probability that but for counsels’ professional errors, . . . the result
of this proceeding would have been any different.” It noted that “[i]t
is not this Court’s job to undo a decision made by a jury absent of
finding a deficient performance.” Thus, the court rejected the claim
for cumulative error.
¶ 135 We conclude that none of Wuthrich’s claims for ineffective
assistance of counsel have merit because, with respect to each
allegation, we either conclude that Stayton acted reasonably or
Wuthrich suffered no prejudice. Therefore, we reject Wuthrich’s
claim that any of these errors, in isolation or cumulatively, warrant
reversal and a new trial. See Howard-Walker v. People, 2019 CO
69, ¶ 25 (“For reversal to occur based on cumulative error, a
reviewing court must identify multiple errors that collectively
prejudice the substantial rights of the defendant, even if any single
error does not. Stated simply, cumulative error involves cumulative
prejudice.”) (citation omitted).
IV. Disposition
¶ 136 We affirm the postconviction court’s order.
JUDGE HARRIS and JUDGE SCHUTZ concur.
Related
Cite This Page — Counsel Stack
Peo v. Wuthrich, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peo-v-wuthrich-coloctapp-2025.