The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY September 20, 2018
2018COA131
No. 15CA0210, People v. Aldridge — Criminal Law — Trials — Witnesses — Use of Closed Circuit Television
The People moved for child witnesses under the age of twelve
to testify, from another courtroom, outside the defendant’s presence
using closed-circuit television under section 16-10-402, C.R.S.
2017. Over the defendant’s objection, the trial court granted that
motion. At trial, rather than having the witnesses testify from
another room, the trial court permitted the children to testify in the
courtroom while the judge and the defendant watched from the
judge’s chambers. The jury could not see or hear the defendant
during the children’s testimony. A division of the court of appeals
concludes that the procedure violated the defendant’s due process
right to be present because the defendant was denied any
opportunity to exert a psychological influence on the jury. The division also addresses, to the extent the issues are likely
to arise on remand, the defendant’s claims that (1) the prosecutor
improperly bolstered the alleged victims’ credibility, (2) evidence was
improperly admitted, and (3) the trial court erred in ordering ten
consecutive sentences.
Accordingly, the division reverses the judgment of conviction
and sentence. COLORADO COURT OF APPEALS 2018COA131
Court of Appeals No. 15CA0210 Chaffee County District Court No. 13CR113 Honorable Charles M. Barton, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert Joseph Aldridge,
Defendant-Appellant.
JUDGMENT AND SENTENCE REVERSED AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE TAUBMAN Bernard and Welling, JJ., concur
Announced September 20, 2018
Cynthia H. Coffman, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 This case presents the issue of the intersection of two
constitutional rights ― a defendant’s right to confront the witnesses
against him or her and the defendant’s right to be present at all
critical stages of a trial. With adequate findings, the former right
may yield in a sexual assault case to allow child witnesses to testify
in a different room from the defendant, while the latter requires that
the defendant and the jury be located in the same room. Here, the
trial court implemented the exception to the right to confrontation
of defendant, Robert Joseph Aldridge, by separating him from the
alleged child victims. However, we hold that it did so at the expense
of Aldridge’s right to be present during their testimony, by requiring
that Aldridge be excluded from the courtroom and requiring him to
watch the children’s testimony from the judge’s chambers, along
with the judge, outside the presence of the jury. Accordingly, we
reverse Aldridge’s judgment of conviction and sentence, and remand
for a new trial.
I. Background
¶2 C.O. and L.A. spent about three weeks camping alone with
Aldridge, their maternal grandfather, during the summer of 2013.
At the time, C.O. was four years old and L.A. was nine years old.
1 ¶3 A few days after she was picked up from Aldridge’s campsite,
C.O. told her aunt that she had seen and touched Aldridge’s
“pecker.” The aunt later questioned L.A., who eventually confirmed
C.O.’s allegations. During separate forensic interviews, C.O. did not
report any sexual contact with her grandfather, but L.A. stated that
both girls had touched Aldridge’s penis during the camping trip and
that it got stiff. As a result of the allegations, the People charged
Aldridge with two counts of sexual assault on a child by one in a
position of trust as part of a pattern of abuse, two counts of sexual
assault on a child as part of a pattern of abuse, four counts of
sexual assault on a child by one in a position of trust—victim under
fifteen, four counts of sexual assault on a child, and two counts of
aggravated incest.
¶4 At trial, the defense argued that Aldridge was physically
incapable of obtaining an erection because he had undergone a
prostatectomy as part of his cancer treatment and that strained
family dynamics resulted in the alleged victims’ false accusations.
A jury found Aldridge guilty as charged. The trial court sentenced
him to 116 years to life in the custody of the Department of
Corrections.
2 ¶5 On appeal, Aldridge contends that the trial court erred by (1)
excluding him from the courtroom while C.O. and L.A. testified; (2)
permitting witnesses and the prosecutor to improperly bolster the
alleged victims’ credibility; (3) allowing a detective to give expert
testimony that children’s clothing found in Aldridge’s motor home
may have been an “erotic trigger”; and (4) imposing ten consecutive
sentences for four acts. We agree with his first contention and
reverse on that basis.
II. Exclusion From Courtroom
¶6 Aldridge contends that the trial court violated his right to be
present by excluding him from the courtroom when the alleged
victims testified, and that the error requires reversal. We agree.
A. Additional Facts
¶7 Before trial, the People moved for C.O. and L.A. to testify by
closed-circuit television (CCTV) under section 16-10-402, C.R.S.
2017. Specifically, the People asked that the children be permitted
“to testify outside the presence of the defendant, in a separate
courtroom.” The People further represented that CCTV capability
existed between the two courtrooms in the county courthouse.
3 ¶8 In a written objection, Aldridge argued that allowing the
children to testify outside of his presence violated his “due process
right to [be] present during critical stages of the proceedings.” He
argued that “[t]he right to be present isn’t satisfied by watching
your own trial on TV, even if you are watching it in the company of
the judge.”
¶9 During a motions hearing, the defense primarily argued that
the People had not proved that requiring the children to testify in
Aldridge’s presence would cause them serious emotional distress.
The defense also reiterated that it had constitutional concerns that
had been addressed in its objection. The trial court granted the
People’s motion. Neither the trial court nor the parties indicated at
the hearing that Aldridge, rather than the children, would be
removed from the courtroom.
¶ 10 At the close of the first day of trial and outside the presence of
the jury, the trial court explained that the judge, Aldridge, and an
investigator from the public defender’s office would watch the
children’s testimony from the judge’s chambers while the children
4 testified in the courtroom.1 The trial court instructed that, if
Aldridge needed to communicate with defense counsel during the
children’s testimony, the investigator would relay his comments via
an instant messaging system.
¶ 11 The following morning, the People requested that the
children’s mother be permitted to stay in the courtroom during their
testimony under section 16-10-402(2)(a)(V). Instead, the trial court
allowed the children’s aunt to stay. When asked for its position on
permitting the aunt to remain in the courtroom, the defense stated
that it was “objecting to the whole procedure.”
¶ 12 Before the children testified, the trial court and Aldridge tested
the CCTV setup outside the jury’s presence. Aldridge confirmed
that he was “seeing the picture,” but stated that it was “not like
1 The record does not reveal, and the parties do not explain, precisely when the trial court adopted this procedure. However, at a pretrial hearing less than a week before trial, the trial court represented that court staff had been exploring whether the closed- circuit “television advisement system might be configured to address the child witnesses.” The prosecutor suggested that, assuming the CCTV did not work, the “best [alternative] [she] had was to screen the defendant off . . . while the children testified in the same room.” At the close of that hearing, the trial court said that it would continue to work on the CCTV technology.
5 looking at a person. It [was] bouncy or . . . . It[ was] like something[
was] lagging.” After a break off the record, the court clerk reported,
“All of our testing is normal.” However, Aldridge then said that he
had had some trouble hearing his counsel and the prosecutor.
¶ 13 When the jury re-entered the courtroom, Aldridge was in the
judge’s chambers. The jury could not see or hear him. Before the
trial court judge left the courtroom, he explained:
The Court -- the way the next two witnesses, who are going to be the children, are going to testify is under the Provisions of the Statute. There is separation -- it calls for separation between the child and the Defendant.
In order to do that, the child -- or children, are going to testify from the witness stand here. Mr. Aldridge and I will be in my chambers. And we are going to be on a computer video system.
There’s a camera in this, this computer. And so, it’s, it’s one-way. It will show into chambers, the witness, and we will be able to hear.
The witness will be able to hear. Everyone in the courtroom, of course, and we will be able to hear everyone in the courtroom.
The witness won’t be able to see us in chambers. We’re hoping this works as well as it can. There may be some interruptions.
6 Our IT people from the [State Court] Administrator’s Office and a private vendor, we’ve worked on this for days. I think we’ve got it pretty well.
The judge also explained that he would be able to communicate into
the courtroom over a microphone.
¶ 14 C.O. testified first. In response to the prosecutor’s questions,
she initially testified that she did not know anyone named “Grandpa
Joe” or “Grandpoo” — her nicknames for Aldridge — and that her
mother’s dad was dead. The trial court called for a brief recess and,
once the jury had left, told defense counsel and the prosecutor that
Aldridge was “having an emotional meltdown” based on C.O.’s
testimony.
¶ 15 After a break, the trial court resumed C.O.’s testimony, during
which Aldridge and the judge remained in the judge’s chambers.
C.O. testified that she had touched Aldridge’s “pecker” and that it
was hard, but that L.A. had not touched Aldridge’s penis. L.A.
testified that Aldridge had made her sister “play with his private
spot,” but that L.A. had not touched his penis. At various points
during L.A.’s testimony, the trial court said that it was having
difficulty hearing her.
7 B. Preservation and Standard of Review
¶ 16 “Whether a trial court violated a defendant’s right to be
present is a constitutional question that is reviewed de novo.”
People v. Wingfield, 2014 COA 173, ¶ 13, 411 P.3d 869, 872.
¶ 17 The People urge us to consider the error unpreserved, and
therefore to review for plain error, because in their view (1)
Aldridge’s written objection contained only a “cursory” reference to
his right to be present and (2) the defense stood on its prior
objection when it became clear the trial court was envisioning
having the children testify in the courtroom while Aldridge observed
from chambers. We disagree on both counts.
¶ 18 First, we consider Aldridge’s argument based on his right to be
present in his objection sufficient to “put the trial court on notice of
his position” and give it an opportunity to avoid the error. People v.
Pahl, 169 P.3d 169, 183 (Colo. App. 2006). Moreover, Aldridge
continued to object to the trial court’s proposed procedure on
various grounds, and reiterated that he stood on his original
objection. We consider these actions sufficient to preserve this
contention. See People v. Pratt, 759 P.2d 676, 685 n.5 (Colo. 1988);
see also Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31
8 (Colo. 1986) (objections made in motion in limine constituted a
timely objection).
¶ 19 We review preserved constitutional errors for constitutional
harmless error, reversing if “there is a reasonable possibility that
the [error] might have contributed to the conviction.” Hagos v.
People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). The People bear the burden of
proving that the error was harmless beyond a reasonable doubt.
Id.; see also Luu v. People, 841 P.2d 271, 274-75 (Colo. 1992)
(characterizing deprivation of the right to be present as a trial
error).
C. Applicable Law
1. Right to Be Present
¶ 20 A defendant has a constitutional right to be present at his or
her criminal trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II,
§ 16; Luu, 841 P.2d at 275; People v. Ragusa, 220 P.3d 1002, 1009
(Colo. App. 2009); see also Crim. P. 43(a) (stating that a defendant
has the right, subject to limited exceptions, to be present “at every
stage of the trial”).
9 ¶ 21 The right to be present is rooted in part in the Confrontation
Clauses of the United States and Colorado Constitutions. U.S.
Const. amend. VI; Colo. Const. art. II, § 16 (“In criminal
prosecutions the accused shall have the right to . . . meet the
witnesses against him face to face . . . .”); see United States v.
Gagnon, 470 U.S. 522, 526 (1985). These clauses protect the
defendant’s “right to be present at trial to secure the opportunity for
full and effective cross-examination of witnesses.” Luu, 841 P.2d at
275.
¶ 22 The Due Process Clause, however, affords defendants the right
to be present in situations where the Confrontation Clause is not
implicated. See Gagnon, 470 U.S. at 526 (stating that the right to
be present is rooted in due process principles “in some situations
where the defendant is not actually confronting witnesses or
evidence against him”). “[D]ue process clearly requires that a
defendant be allowed to be present ‘to the extent that a fair and just
hearing would be thwarted by his absence.’” Kentucky v. Stincer,
482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291
U.S. 97, 108 (1934)). Thus, the Due Process Clause protects a
defendant’s right to be present at all “critical” stages of his or her
10 trial. Id. “A critical stage of criminal proceedings is one where there
exists more than a minimal risk that the absence of the defendant
might impair his or her right to a fair trial.” People v. Cardenas,
2015 COA 94M, ¶ 22, 411 P.3d 956, 963.
2. Section 16-10-402 and the Confrontation Clause
¶ 23 A Colorado statute provides a mechanism by which witnesses
under the age of twelve can testify “in a room other than the
courtroom and be televised by closed-circuit television [CCTV] in the
courtroom.” § 16-10-402(1)(a). Several conditions must be met
before a child witness can testify by CCTV under this statute,
including a determination by the trial court “that testimony by the
witness in the courtroom and in the presence of the defendant
would result in the witness suffering serious emotional distress or
trauma such that the witness would not be able to reasonably
communicate.” § 16-10-402(1)(a)(II).
¶ 24 Under section 16-10-402(2)(a), only specified people may be in
the room with the child witness when he or she testifies by CCTV ―
the prosecutor, defense counsel, the child’s guardian ad litem,
operators of the CCTV equipment, “[a] person whose presence, in
the opinion of the court, contributes to the welfare and well-being of
11 the witness,” and the jury. § 16-10-402(2)(a)(I)-(VI). “During the
witness’s testimony by closed-circuit television, the judge and the
defendant, if present, shall remain in the courtroom.” § 16-10-
402(2)(b); see also § 16-10-402(2)(c) (“The judge and the defendant
shall be allowed to communicate with the persons in the room
where the witness is testifying by an appropriate electronic
method.”). However, the statute does not “preclude the removal of
the defendant, rather than the witness, from the courtroom upon
the stipulation of both parties and the approval of the court.” § 16-
10-402(5) (emphasis added).
¶ 25 This provision provides a narrow statutory exception to the
requirements of the Confrontation Clauses. U.S. Const. amend. VI;
Colo. Const. art. II, § 16. In Maryland v. Craig, the Supreme Court
upheld a similar law, concluding,
where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face- to-face confrontation, ensures the reliability of the evidence.
12 497 U.S. 836, 857 (1990). Thus, the Court in Craig held that the
Confrontation Clause does not “categorically prohibit[] a child
witness . . . from testifying against a defendant at trial, outside the
defendant’s physical presence, by one-way closed circuit television.”
Id. at 840; see also People v. Phillips, 2012 COA 176, ¶¶ 51, 59, 315
P.3d 136, 150, 153 (concluding that there was no violation of
defendant’s federal or state confrontation rights when child testified
by CCTV from another room under section 16-10-402). However, in
Craig, the Maryland statute at issue provided for “the child witness,
prosecutor, and defense counsel [to] withdraw to a separate room;
the judge, jury, and defendant remain in the courtroom.” Craig,
497 U.S. at 841. Because the defendant along with the judge and
jury, remained in the courtroom in Craig, the Court had no need to
consider whether the procedure violated the defendant’s right to be
present. See id. at 842 (“Craig objected to the use of the procedure
on Confrontation Clause grounds . . . .”).
D. Analysis
¶ 26 Aldridge contends that the trial court erred in excluding him
from the courtroom during the alleged victims’ testimony. We
agree.
13 ¶ 27 At the outset, the People concede that the trial court “did not
strictly comply” with the procedure set forth in section 16-10-402.
Although the statute does not preclude the removal of the
defendant from the courtroom upon the stipulation of both parties
and the approval of the court, it is undisputed that Aldridge did not
stipulate to his removal in this case. Because the People initially
moved for the witnesses to testify from another courtroom by CCTV,
it is not clear whether the People stipulated to the procedure used.
Indeed, the record does not indicate when the trial court announced
the procedure it adopted, or the People’s response, especially given
their request to have the children testify in another courtroom, with
Aldridge remaining in the courtroom.2 Thus, we conclude that the
2 The record suggests that the trial court used the procedure here due to technological difficulties in having the children testify from another room and televising their testimony in the courtroom. To the extent the People suggested at oral argument that section 16- 10-402, C.R.S. 2017, permits a trial court to remove a defendant from the courtroom during a child’s in-court testimony if there are difficulties in setting up CCTV equipment (or no CCTV equipment at all), we disagree. One prerequisite to invoking the procedure in that statute is that “[c]losed-circuit television equipment is available for such use.” § 16-10-402(1)(a)(III). If that equipment is not available (or suitable to comply with the statute), neither party can move to
14 trial court’s decision to remove Aldridge from the courtroom rather
than permit the witnesses to testify by CCTV from another room ran
afoul of the statutory provision.3
¶ 28 Our determination is in accord with the division’s analysis in
People v. Rodriguez, 209 P.3d 1151 (Colo. App. 2008), aff’d by an
equally divided court, 238 P.3d 1283 (Colo. 2010). There, the
division concluded that the trial court erred by removing the
defendant during a child’s testimony without adhering to the
procedure set forth in section 16-10-402, though the division also
concluded that the error was harmless. Id. at 1158. In Rodriguez,
like here, “the parties did not stipulate to defendant’s, instead of
[the witness’s], removal from the courtroom.” Id. at 1157; see also
id. (concluding that the trial court also erred by “not providing an
have a child testify from outside the courtroom, and the trial court cannot order such a procedure on its own motion. 3 It is unclear from the record whether the trial court otherwise
complied with the requirements of section 16-10-402(2)(a) by allowing only those authorized by the statute to remain in the courtroom. Although the parties and the trial court discussed section 16-10-402(2)(a)(V), and the trial court ruled that the children’s aunt could remain in the courtroom when they testified, the record does not indicate whether the trial court excluded other spectators.
15 electronic method of communication between defendant and her
counsel”).
¶ 29 We further conclude that the procedure here violated
Aldridge’s constitutional right to be present under the Due Process
Clause. In other contexts, divisions of this court have concluded
that a defendant’s removal or absence from the courtroom during a
trial court’s communications with the jury violated the defendant’s
due process right to be present during a critical stage of trial. See,
e.g., People v. Payne, 2014 COA 81, ¶ 20, 361 P.3d 1040, 1044
(defendant’s absence when trial court read modified Allen jury
instruction violated right to be present). These cases have
acknowledged that the defendant’s in-court presence “can have a
psychological impact on the jury that may benefit the defendant.”
Id. at ¶ 12, 361 P.3d at 1043; see also Larson v. Tansy, 911 F.2d
392, 395-96 (10th Cir. 1990) (“[O]n the issue of defendant’s absence
from jury instructions, closing arguments, and the rendition of the
verdict, we hold that defendant was deprived of his due process
right to exert a psychological influence upon the jury . . . .”). Thus,
implicit in the defendant’s due process right to be present is the
defendant’s right to be present in the same room as the jury. Cf.
16 People v. Lujan, 2018 COA 95, ¶ 11, ___ P.3d ___, ___ (concluding
that the defendant’s right to a public trial was violated when the
trial court answered the jury’s questions during deliberation in the
absence of the parties, contrary to “proper court practices that
place the jury and parties together”).
¶ 30 Here, Aldridge was removed from the courtroom during a
particularly critical phase of the trial — namely, the alleged victims’
testimony. The jury could not see Aldridge when that testimony
was taken. Thus, the procedure violated not only the statutory
provision, but also Aldridge’s due process right to be present at his
own trial because he was denied any opportunity to exert
psychological influence on the jury.4
4 Section 16-10-402(2)(a)(VI) authorizes, but does not require, the jury to be in the room with the child witness when he or she testifies by CCTV. The statute therefore appears to permit a procedure in which the defendant remains in the courtroom with the judge, while the prosecutor, defense counsel, and the jury are in another room with the child witness. We note that such a procedure may well raise the same due process concerns we address here because in that scenario the defendant would similarly be denied the opportunity to exert any psychological influence on the jury. However, Aldridge did not challenge the constitutionality of section 16-10-402(2)(a)(VI) in the trial court or
17 ¶ 31 Nevertheless, the People maintain that the procedure used
here did not violate Aldridge’s constitutional rights because the
evidence was sufficiently reliable under Craig, 497 U.S. at 857. We
are not persuaded. In Craig, the Supreme Court addressed whether
allowing a child witness to testify by CCTV from outside the
courtroom violated a defendant’s right to confront the witness. See
generally id. at 856-58. Thus, Craig is distinguishable because
here, the defendant was removed from the courtroom and alleges
that the procedure offended his right to be present (not just his
right to confront the witnesses).
¶ 32 As Aldridge asserts, multiple courts have held that the removal
of the defendant from the courtroom during a child witness’s
testimony constitutes error. See, e.g., Price v. Commonwealth, 31
S.W.3d 885, 894 (Ky. 2000) (holding that defendant’s removal from
the courtroom to watch witness’s testimony over CCTV, without
means of continuous audio contact with defense counsel, violated
not only statute, but also defendant’s right to be present); People v.
on appeal, and we therefore express no opinion on the validity of that provision if implemented in such a fashion.
18 Krueger, 643 N.W.2d 223, 225-26 (Mich. 2002) (concluding
defendant’s removal violated state statute). We join that authority.
¶ 33 In sum, Aldridge’s exclusion from the courtroom during the
children’s testimony, in the absence of a stipulation, violated
section 16-10-402 and his due process right to be present.
E. Constitutional Harmless Error
¶ 34 We review for constitutional harmless error. Under that
standard, we conclude the error requires reversal because the
People have not demonstrated that it was harmless beyond a
reasonable doubt.
¶ 35 As noted, in Rodriguez, the division concluded that
defendant’s erroneous removal from the courtroom did not require
reversal. 209 P.3d at 1155. There, defense counsel generally
“expressed concern” about separating the defendant and the
witness during testimony, but “was noncommittal about whether, if
a closed-circuit television procedure were utilized, the witness or
defendant should remain in the courtroom.” Id. Thus, the division
considered it “not altogether evident” that the defendant had
preserved any objection to her removal. Id. at 1156.
19 ¶ 36 In any event, the Rodriguez division concluded that the error
there was harmless beyond a reasonable doubt for two reasons. Id.
at 1158. First, the child witness’s testimony in Rodriguez was
consistent with the defendant’s theory of the case — the defendant
did not contest her role in inflicting abuse on the child, but rather
argued that she acted under duress. Id. at 1159. Second, the
defendant did not demonstrate that the lack of ability to
communicate with her counsel impaired her defense. Id. at 1158-
59; see also id. at 1159 (noting that trial counsel “made no record
below regarding what additional facts he could have inquired about
if he had been permitted constant electronic contact with his
client”).
¶ 37 Here, the People do not contend that any error is rendered less
significant by virtue of Aldridge’s ability to communicate
electronically with his counsel during the children’s testimony.
¶ 38 More significantly, unlike in Rodriguez, the children’s
testimony here was crucial evidence against Aldridge and ran
directly contrary to his theory of the case. Especially because the
alleged victims offered shifting accounts of the assaults and there
was no physical evidence, there is at least a reasonable possibility
20 that the error here contributed to Aldridge’s convictions. Accord
People v. Relaford, 2016 COA 99, ¶ 44, 409 P.3d 490, 498 (noting
that evidentiary errors have been considered reversible in cases
where there was no physical evidence of, or third-party eyewitness
testimony to, alleged sexual assaults).
¶ 39 We also disagree with the People’s contention that there is no
authority that gives a criminal defendant the right to have the jury
observe his or her reaction to witnesses’ testimony. As discussed,
the division in Payne concluded that a defendant has a due process
right to be present in part “because of the psychological influence
his absence or presence may have on the jury.” ¶ 18, 361 P.3d at
1044. Here in particular, Aldridge’s absence during the children’s
testimony may well have been prejudicial because the jury was
prevented from observing the extent of his “emotional meltdown” in
reaction to C.O.’s testimony. Because the jury could not see
Aldridge, he was unable to “exert[] any psychological influence” on
it. Larson, 911 F.2d at 396.
¶ 40 Accordingly, we conclude that the judgment of conviction must
be reversed because Aldridge’s erroneous exclusion from the
21 courtroom during the children’s testimony was not harmless
beyond a reasonable doubt.
III. Other Contentions
¶ 41 We briefly address Aldridge’s remaining contentions to provide
guidance on remand.
A. Credibility Bolstering
¶ 42 Aldridge contends that the trial court erred in permitting
testimony and argument bolstering the alleged victims’ credibility.
¶ 43 Because the precise testimony and argument are unlikely to
arise in the same context on remand, we do not address each
alleged instance of improper bolstering. However, we note two
general principles relevant to Aldridge’s contention: (1) neither lay
nor expert witnesses may give opinion testimony that another
witness was telling the truth on a specific occasion; and (2) it is
impermissible for the prosecutor to express a personal opinion
about the veracity of a witness. See Liggett v. People, 135 P.3d 725,
732 (Colo. 2006) (“[A]sking a witness to opine on the veracity of
another witness is prejudicial, argumentative, and ultimately
invades the province of the fact-finder.”); Domingo-Gomez v. People,
125 P.3d 1043, 1050 (Colo. 2005) (“[P]rosecutorial remarks that
22 evidence personal opinion, personal knowledge, or inflame the
passions of the jury are improper.”). See generally People v.
Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (discussing case law on
testimony regarding child victim’s believability and credibility).
B. Detective’s Testimony
¶ 44 Aldridge contends that the trial court erred in allowing a
detective to offer expert testimony that girls’ underwear found in
Aldridge’s motor home could have been an “erotic trigger.” He
argues that the testimony had little or no probative value and was
highly prejudicial, and that he was deprived of an opportunity to
effectively cross-examine the detective because the People had not
disclosed the detective as an expert witness before trial. For their
part, the People contend that Aldridge opened the door to the
challenged testimony by asking the detective whether he had found
any pornography or “Viagra or anything like that” in the motor
home.
¶ 45 Because this precise issue is unlikely to arise in this context
on remand, we decline to address it. See People v. Weinreich, 98
P.3d 920, 924 (Colo. App. 2004) (declining to address evidentiary
23 issue unlikely to arise “in the same context” on retrial), aff’d, 119
P.3d 1073 (Colo. 2005).
C. Consecutive Sentences
¶ 46 Aldridge contends, the People concede, and we agree that the
trial court erred by imposing consecutive sentences for ten of the
convictions.
¶ 47 Generally, a trial court “has the discretion to impose either
concurrent or consecutive sentences.” Juhl v. People, 172 P.3d 896,
899 (Colo. 2007). However, under section 18-1-408(3), C.R.S. 2017,
“when the district attorney prosecutes two or more offenses based
on the same act or series of acts arising from the same criminal
episode and the defendant is found guilty of more than one count
on the basis of identical evidence, the sentences imposed must run
concurrently.” Juhl, 172 P.3d at 899.
¶ 48 Here, the prosecution alleged that C.O. and L.A. were both
subject to multiple sexual assaults during the charged timeframe,
but did not establish distinct acts of sexual assault. Rather, the
prosecution relied on identical evidence to establish the sexual
assault on a child, sexual assault on a child by one in a position of
trust, and aggravated incest charges as to each victim. Thus, the
24 trial court erred in imposing ten consecutive sentences based on
the evidence presented and the jury’s verdicts.
¶ 49 If the jury finds Aldridge guilty of more than one count per
victim on retrial, the trial court must impose sentences in
accordance with section 18-1-408(3), Juhl, 172 P.3d at 899, and
Quintano v. People, 105 P.3d 585, 589-92 (Colo. 2005).
IV. Conclusion
¶ 50 Accordingly, the judgment and sentence are reversed, and the
case is remanded for a new trial.
JUDGE BERNARD and JUDGE WELLING concur.