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 October 10, 2024
2024COA110
No. 22CA0534, People v. Ramcharan — Crimes — Unlawful Sexual Behavior — Victim’s and Witness’s Prior History — Evidence of History of False Reporting — Offer of Proof of Relevancy and Materiality
Under Colorado’s rape shield statute, a party who seeks to
introduce evidence of a victim’s “history of false reporting of sexual
assaults” must file a written motion setting forth “an offer of proof
of the relevancy and materiality” of the evidence. § 18-3-407(2),
C.R.S. 2023. A division of the court of appeals considers the
sufficiency of an offer of proof consisting of a summary of
statements of witnesses, with whom defense counsel apparently
never spoke, that lacks any explanation of whether the statements
are admissible. The division holds that such an offer of proof is
insufficient because the proponent did not establish that the
witnesses’ statements were admissible. COLORADO COURT OF APPEALS 2024COA110
Court of Appeals No. 22CA0534 Jefferson County District Court No. 20CR1024 Honorable Jason Carrithers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Reynold Ramcharan,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE LIPINSKY Schutz and Martinez*, JJ. concur
Announced October 10, 2024
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 The General Assembly enacted Colorado’s rape shield statute,
section 18-3-407, C.R.S. 2023, to protect victims of sexual assault
from “humiliating and embarrassing public fishing expeditions into
their past sexual conduct.” People v. Weiss, 133 P.3d 1180, 1185
(Colo. 2006) (quoting People v. McKenna, 585 P.2d 275, 278 (Colo.
1978)).
¶2 To accomplish this goal, the statute limits the introduction of
“evidence of specific instances of the victim’s . . . prior or
subsequent sexual conduct, opinion evidence of the victim’s . . .
sexual conduct, and reputation evidence of the victim’s . . . sexual
conduct.” § 18-3-407(1), C.R.S. 2023. (We cite the version of the
rape shield statute in effect at the time of the trial in this case.)
Such evidence is presumed irrelevant, with only a few exceptions.
¶3 One of those exceptions is evidence that “the victim . . . has a
history of false reporting of sexual assaults.” § 18-3-407(2), C.R.S.
2023. But this type of evidence may only be admitted at trial if the
party seeking to introduce it follows the procedure specified in
section 18-3-407(2)(a)-(g), C.R.S. 2023.
¶4 As part of that procedure, the party seeking to introduce the
evidence must file a written motion setting forth an “offer of proof of
1 the relevancy and materiality of . . . evidence that the victim or
witness has a history of false reporting of sexual assaults that is
proposed to be presented.” § 18-3-407(2)(a), C.R.S. 2023. The
written motion “shall be accompanied by an affidavit in which the
offer of proof shall be stated.” § 18-3-407(2)(b), C.R.S. 2023.
¶5 In this appeal, we consider the sufficiency of an offer of proof
consisting of a summary of statements of witnesses, with whom
defense counsel apparently never spoke, that lacks any explanation
of whether the statements are admissible. We hold that such an
offer of proof fails because it does not establish that the witnesses’
statements were admissible.
¶6 Reynold Ramcharan appeals his judgment of conviction
entered on jury verdicts finding him guilty of sexual assault on a
child and contributing to the delinquency of a minor. We affirm.
I. Background
¶7 The evidence introduced at Ramcharan’s trial established the
following facts.
¶8 Ramcharan met A.M., a fourteen-year-old girl, at a public
location after she ran away from the Tennyson Center for Children.
After A.M. told Ramcharan she had nowhere to live, he said he
2 might have a place where she could stay, and they walked to his
apartment.
¶9 Once they reached Ramcharan’s apartment, A.M. lay down,
fully clothed, in a bedroom. A.M. testified that Ramcharan entered
the bedroom a few minutes later, got into bed with her, removed her
pants, held her down, and sexually assaulted her. She specified
that Ramacharan put his penis in her vagina.
¶ 10 A.M. further testified that, either before they entered the
apartment or while Ramcharan was holding her down, he told her
to smoke methamphetamine using a white pipe. When she refused,
he threatened to hurt her if she would not comply. A.M. smoked
from the pipe. She later reported that the pipe had a black residue.
¶ 11 She then “got enough strength to push [Ramcharan] off,”
walked out of the bedroom, told two women who were in the
apartment that she needed fresh air, left the apartment, and asked
people in neighboring houses to call 911.
¶ 12 A crimes against children detective, Kim Collins, later
interrogated Ramcharan. He denied assaulting A.M., saying that
“everything that happened here was completely consensual.”
Significantly, however, in response to Detective Collins’s question,
3 “Is [A.M.] telling the truth . . . that you had sex,” Ramcharan said,
“We started to and that’s when I asked” A.M. her age. He said,
“[T]hat’s when she got uncomfortable, so I stopped.”
¶ 13 In addition, Ramcharan “denied having a white pipe” and told
the detective that “he did not give [A.M.] meth to smoke.” But a
police officer later discovered a white pipe containing black residue,
as A.M. had described it, in the jacket Ramcharan had worn on the
day of the alleged sexual assault.
¶ 14 A DNA test of swabs from A.M.’s vagina, cervix, and external
genitalia did not detect semen, but it did contain a male Y-STR
profile that was consistent with Ramcharan’s genetic material. See
State v. Bander, 208 P.3d 1242, 1246 (Wash. Ct. App. 2009)
(“Based on PCR-YSTR typing, a forensic analyst may determine
whether a known source and all of his paternal relatives can be
excluded as possible contributors to an unknown DNA sample.”).
The prosecution’s expert witness on DNA analysis testified that,
“based on the results of a search of a current population database,
the expected frequency of [Ramcharan’s] Y-STR profile is
approximately 1 in 2,007.”
4 ¶ 15 Ramcharan was charged with sexual assault on a child with a
use of force enhancer, in violation of section 18-3-405(1), (2)(a),
C.R.S. 2024, and contributing to the delinquency of a minor, in
violation of section 18-6-701(1)(a), (2)(a), C.R.S. 2024. A jury found
Ramcharan guilty of both crimes, but without the use of force
sentence enhancer. Ramcharan appeals his judgment of
conviction.
II. Analysis
¶ 16 Ramcharan contends that the court reversibly erred by
(1) denying his request to introduce evidence of A.M.’s
alleged history of false reporting of sexual assaults;
(2) instructing the jury on the mens rea “knowingly” in a
manner that “deviated from the statutory definition”; and
(3) denying Ramcharan’s requests for substitution of
appointed counsel.
A. Prior False Reports of Sexual Assault
¶ 17 Ramcharan contends that the court reversibly erred by
denying his request to introduce “evidence of A.M.’s multiple prior
instances of false reports of being sexually assaulted.”
5 1. Additional Facts
¶ 18 Defense counsel filed a pretrial notice of intent to admit
evidence of “prior false reports of sexual assault.” In support of the
notice, defense counsel submitted a document entitled “affidavit”
bearing his signature.
¶ 19 In the “affidavit,” defense counsel asserted that he found, in
his review of discovery from the district attorney’s office, that A.M.
“has made previous false accusations of sexual assault.” Defense
counsel then summarized statements of witnesses that he found in
the discovery materials. (Nothing in the record suggests that
defense counsel ever spoke with any of the witnesses.) Those
statements purported to refer to instances in which A.M. allegedly
made false reports of sexual assault. In addition, defense counsel
stated in the “affidavit” that he found “two cases had been filed for
reporting a false crime,” although defense counsel did not say that
A.M. had been charged in those cases with falsely reporting a
sexual assault or that A.M. had been convicted in either case.
¶ 20 More importantly, defense counsel’s “affidavit” did not indicate
whether the witnesses’ statements were admissible. See Weiss, 133
P.3d at 1187. For example, defense counsel did not state whether
6 the witnesses possessed firsthand knowledge of A.M.’s alleged false
reports of sexual assault or whether their assertions were premised
on hearsay or on speculation.
¶ 21 At the initial hearing on the defense’s request to introduce
evidence of A.M.’s alleged prior false reports of sexual assault, the
court said it was unsure how the allegations in the “affidavit” fit “in
the exception of rape shield” and directed defense counsel to file an
addendum to the request. Defense counsel did not file such an
addendum.
¶ 22 At a status conference conducted one month later, the court
invited the prosecutor to respond to the defense’s notice. The
prosecutor challenged the notice for four reasons. First, he argued
that the supporting “affidavit” was insufficient because “it’s not a
signed record given under oath.” He noted that the “affidavit” was
not notarized and did not satisfy the statutory requirements for
unsworn declarations. Second, he contended that the witnesses
named in the affidavit “would be testifying to hearsay . . . and would
have no personal knowledge.” Third, he challenged whether the
“affidavit” referenced more than one incident of false reporting.
7 Fourth, he noted that the false reporting charges filed against A.M.
had been dismissed.
¶ 23 In response, defense counsel told the court he could “re-file
that with . . . having a notary sign it. I could fix that defect quite
easily.” Defense counsel further argued that the “affidavit”
described more than one occasion on which A.M. had falsely
reported that she had been sexually assaulted.
¶ 24 The court said it was “debatable” whether the document
satisfied the affidavit requirement but added that “an attorney’s
signature [may be] sufficient” under C.R.C.P. 11 and the prosecutor
was making a “form over substance sort of argument.”
¶ 25 Turning to the merits of the prosecutor’s argument, the court
concluded that the defense’s offer of proof was insufficient, saying
that, although defense counsel “assert[s] there’s two instances of
false reporting,” there is “only one regarding a sexual act.” The
court also concluded that the offer of proof improperly rested on
hearsay. Accordingly, the court denied, without prejudice, the
defense’s request for an evidentiary hearing to determine the
admissibility of evidence of A.M.’s alleged history of false reporting
8 of sexual assaults. Although the court said that defense counsel
could refile the request, the defense did not do so.
2. Standard of Review
¶ 26 We review the construction and interpretation of Colorado’s
rape shield statute de novo. See Weiss, 133 P.3d at 1184. “Our
objective is to effectuate the intent and purpose of the General
Assembly. We read the statute as a whole, giving sensible effect to
all of its parts whenever possible. If the statutory language is clear,
we apply the plain and ordinary meaning of the provision.” Id.
(citations omitted).
¶ 27 In addition, “[w]e review a trial court’s determination of the
admissibility of evidence under the rape shield statute for an abuse
of discretion.” People v. Buckner, 2022 COA 14, ¶ 63, 509 P.3d 452,
464. “A court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or is based on an erroneous view
of the law.” Id.
¶ 28 The parties disagree whether the court’s denial of the defense’s
request to introduce evidence of A.M.’s alleged prior false reports of
sexual assault could have violated Ramcharan’s constitutional
9 rights to confront the witnesses against him and to present a
complete defense.
¶ 29 “An erroneous evidentiary ruling may rise to the level of
constitutional error if it deprived the defendant of any meaningful
opportunity to present a complete defense.” People v. Conyac, 2014
COA 8M, ¶ 93, 361 P.3d 1005, 1024. But a defendant’s right to
present a defense is violated only when “the defendant was denied
virtually his only means of effectively testing significant prosecution
evidence.” Id.; see also Krutsinger v. People, 219 P.3d 1054, 1062
(Colo. 2009) (holding that an evidentiary ruling amounts to
constitutional error if it “effectively barred the defendant from
meaningfully testing evidence central to establishing his guilt”).
3. The Law
¶ 30 Under the rape shield statute, a party can introduce evidence
that the victim “has a history of false reporting of sexual assaults”
only by adhering to the procedure specified in section 18-3-407(2),
C.R.S. 2023:
(a) A written motion shall be made . . . to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of . . . evidence that the victim or witness has a history of false
10 reporting of sexual assaults that is proposed to be presented.
(b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
§ 18-3-407(2)(a)-(b), C.R.S. 2023.
¶ 31 Because section 18-3-407(2)(b), C.R.S. 2023, refers to “an
affidavit,” the document in which “the offer of proof shall be stated”
must satisfy the legal requirements for affidavits, see C.R.C.P. 108
(“An affidavit may be sworn to either within or without this state
before any officer authorized by law to take and certify the
acknowledgment of deeds conveying lands.”); Otani v. Dist. Ct., 662
P.2d 1088, 1090 (Colo. 1983) (“An affidavit is a signed, written
statement, made under oath before an authorized officer, in which
the affiant vouches that what is said is true.”). (We look to C.R.C.P.
108 for guidance in the absence of a Rule of Criminal Procedure
that addresses affidavits. See Crim. P. 57(b).) An unsworn
declaration that complies with section 13-27-106, C.R.S. 2024, can
be used in place of an affidavit. C.R.C.P. 108. Section 13-27-106
specifies that unsworn declarations must include the statement, “I
11 declare under penalty of perjury under the law of Colorado that the
foregoing is true and correct.”
¶ 32 If the court finds that the offer of proof is sufficient, it “shall
notify the other party of such.” § 18-3-407(2)(c), C.R.S. 2023. If the
prosecution disputes the facts described in the offer of proof, the
court shall set a pretrial in camera evidentiary hearing, at which
“the court may allow the questioning of the victim or witness
regarding the offer of proof made by the moving party or otherwise
allow a presentation of the offer of proof, including but not limited
to the presentation of witnesses.” Id. “Only if the prosecution
stipulates to the facts contained in the offer of proof” may the court
rule on the request to introduce evidence otherwise barred under
the rape shield statute without an evidentiary hearing. Weiss, 133
P.3d at 1187.
¶ 33 An offer of proof is a “preview of the evidence a party is
prepared to introduce at an evidentiary hearing” and “consists of
allegations that the party’s attorney represents would be proven if
the court granted the hearing.” People v. Marx, 2019 COA 138,
¶ 46, 467 P.3d 1196, 1206. An offer of proof “typically states:
(1) what the anticipated testimony of the witness would be if the
12 witness were permitted to testify concerning the matter at issue;
(2) the purpose and relevance of the testimony sought to be
introduced; and (3) all the facts necessary to establish the
testimony’s admissibility.” Weiss, 133 P.3d at 1186-87. “[T]he
affidavit accompanying the defendant’s offer of proof must articulate
facts which, if demonstrated at the evidentiary hearing by a
preponderance of the evidence, would show that the alleged victim
made multiple prior or subsequent reports of sexual assault that
were in fact false.” Id. at 1184.
4. Defense Counsel’s “Affidavit”
¶ 34 The division requested supplemental briefing on whether
defense counsel’s “affidavit” containing Ramcharan’s offer of proof
satisfied the legal requirements for affidavits or unsworn
declarations. The document was neither notarized nor did it
expressly say that it was made “under penalty of perjury under the
law of Colorado.” Although the prosecution argued before trial that,
for this reason, defense counsel’s submission did not satisfy section
18-3-407(2)(b), C.R.S. 2023, the court did not decide the issue but,
instead, concluded that defense counsel had failed to make a
sufficient offer of proof under section 18-3-407(2)(a), C.R.S. 2023.
13 The People did not challenge the form of the “affidavit” in their
answer brief.
¶ 35 We need not decide whether the document satisfied the
affidavit requirement set forth in section 18-3-407(2)(b), C.R.S.
2023, however, because, like the court, we hold that defense
counsel failed to make a sufficient offer of proof. See infra Part
II.A.5. Nonetheless, we are troubled by the deficiencies in the form
of defense counsel’s “affidavit.”
5. Ramcharan Did Not Make a Sufficient Offer of Proof Under Section 18-3-407(2)(a), C.R.S. 2023
¶ 36 Next, we hold that Ramcharan’s offer of proof was insufficient
under section 18-3-407(2)(a), C.R.S. 2023, because he did not
provide facts establishing that the witnesses’ statements referenced
in his “affidavit” were admissible.
¶ 37 As noted above, the “affidavit” consisted of witness statements
that defense counsel obtained from discovery materials, as well as
his review of two court files in which A.M. was charged with false
reporting. Defense counsel did not say he had spoken with any of
the witnesses named in the “affidavit.”
14 ¶ 38 Nothing in the “affidavit” indicated the basis for the witnesses’
alleged knowledge that A.M. had made false reports of sexual
assault or established that the witnesses’ statements were
admissible evidence. Specifically, the “affidavit” stated that Steve
Bailey, A.M.’s guardian ad litem, told Detective Collins that A.M.
“had a history of false reporting,” including an “instance where
[A.M.] had made allegations of sexual assault ‘that she said
happened in one place when it was known she was somewhere
else.’” Defense counsel did not indicate how Bailey became aware of
this incident, whether Bailey was merely repeating information he
obtained from others, or whether Bailey could provide admissible
testimony regarding the incident.
¶ 39 The “affidavit” also reported information that Mallory Scott, a
“social worker with Teller County DHS,” provided to Detective
Collins, a deputy district attorney, and an investigator with the
district attorney’s office. According to defense counsel, Scott said
that A.M. “had been charged in Teller County for false reporting of
sexual assault.” But the “affidavit” did not indicate how Scott
learned of the charge, whether she possessed any firsthand
knowledge of the facts supporting the charge, or whether A.M. was
15 convicted in the case. The “affidavit” quoted Scott as saying that
A.M. was sexually assaulted in 2018; “reported other incidents of
sexual assault allegations, including the incident in which she was
charged with ‘reporting a false crime’”; and “continued to make false
reports up until December 2019.” Notably, the “affidavit” did not
quote Scott as saying that A.M. falsely reported a sexual assault in
2018 or that the “continued . . . false reports” included false reports
of sexual assault. According to defense counsel, Scott said that
A.M. would “sometimes tell Ms. Scott that a particular assault
didn’t actually happen,” but the “affidavit” did not say that any
such “particular assault” was a sexual assault or how many times
A.M. allegedly told Scott that “a particular assault didn’t actually
happen.” More importantly, the “affidavit” did not indicate how
Scott knew that A.M. falsely reported any sexual assault.
¶ 40 The “affidavit” further said that Scott provided an example
where A.M. “went running down a trail near the police station and
reported to the first person she saw that she had been sexually
assaulted.” According to the “affidavit,” Scott said that officers
found a threatening note in A.M.’s backpack and that A.M.
“allegedly admitted that she was the one who wrote that note.” But
16 the “affidavit” did not say that A.M. falsely reported the sexual
assault or that Scott possessed personal knowledge of the incident.
¶ 41 Further, the “affidavit” said that, according to Scott, A.M.
made a report that “police were able to determine was false by
checking surveillance camera footage.” The “affidavit” did not
explain how Scott knew of the allegedly false report, however.
¶ 42 Finally, the reference to the two court cases in the “affidavit”
did not indicate whether either case arose from a false report of
sexual assault, whether the false reporting charges filed against
A.M. were meritorious, or how evidence of any false reports of
sexual assault underlying those cases could be admitted into
evidence.
¶ 43 The offer of proof specified in section 18-3-407(2)(a), C.R.S.
2023, requires more than mere allegations that the victim has a
history of false reporting of sexual assaults. See Weiss, 133 P.3d at
1184. Rather, the offer of proof and the hearing discussed in
section 18-3-407(2)(c), C.R.S. 2023, are intended to screen “the
evidence proposed to be offered regarding the sexual conduct of the
victim.” § 18-3-407(2)(e), C.R.S. 2023. The procedures set forth in
section 18-3-407(2)(a), (b), and (c), C.R.S. 2023, would be a futile
17 exercise if an offer of proof consisted of inadmissible evidence. For
this reason, the offer of proof must state “all the facts necessary to
establish the testimony’s admissibility.” Weiss, 133 P.3d at 1186-
87.
¶ 44 Defense counsel’s “offer of proof” fell far short of explaining
how any of the allegations of false reporting of sexual assault
contained in the “affidavit” were admissible. Although there is no
requirement that the affiant who executes the affidavit required
pursuant to section 18-3-407(2)(b), C.R.S. 2023, speak with the
witnesses whose statements appear in the affidavit, an affiant’s sole
reliance on third-party documents to obtain those statements
increases the likelihood that a court will determine that the offer of
proof fails to establish the statements’ admissibility.
¶ 45 The “affidavit” that Ramcharan’s counsel tendered to the court
does not state that the specified individuals have firsthand
knowledge of the allegations or, if not, the basis for their knowledge.
If the individuals were merely recounting hearsay — “a statement
other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted,” CRE 801(c) — the individuals’ statements regarding
18 A.M.’s alleged history of false reporting of sexual assaults would be
inadmissible. See CRE 802 (“Hearsay is not admissible except as
provided by these rules or by the civil and criminal procedural rules
applicable to the courts of Colorado or by any statutes of the State
of Colorado.”); see also CRE 804, 805, 807 (setting forth various
exceptions to the general bar against hearsay testimony).
¶ 46 Defense counsel was required to explain in his offer of proof
why the witnesses’ statements were admissible. Defense counsel’s
offer of proof failed absent such an explanation.
¶ 47 For these reasons, we conclude that the court did not abuse
its discretion by denying Ramcharan’s request to introduce
evidence of A.M.’s history of false reports of sexual assaults.
B. Instructional Error
¶ 48 Ramcharan contends that the court reversibly erred by
instructing the jury on the word “knowingly” in a way that
“substantially deviated from the statutory definition, was
misleading, inaccurately stated the law, and lowered the
prosecution’s burden to prove every element — including the mens
rea — of each offense beyond a reasonable doubt.”
19 1. Preservation and Standard of Review
¶ 49 The People contend that defense counsel only objected to the
inclusion of the word “well-being” in the instructions and therefore
did not preserve Ramcharan’s challenge to the court’s instruction
defining the word “knowingly.”
¶ 50 Objections must be “specific enough to draw the trial court’s
attention to the asserted error.” People v. Tallent, 2021 CO 68,
¶ 12, 495 P.3d 944, 948 (quoting Martinez v. People, 2015 CO 16,
¶ 14, 344 P.3d 862, 868). The record confirms that defense counsel
did not specifically draw attention to the asserted error in the
court’s definition of “knowingly” because he only objected to the
inclusion of “well-being” in the definition. In contrast to his
counsel’s objection at trial, on appeal Ramcharan contends that the
trial court’s definition of “knowingly” is inconsistent with the
statutory definition. § 18-1-501(6), C.R.S. 2024.
¶ 51 “We review de novo whether the jury instructions as a whole
accurately informed the jury of the governing law.” People v.
Manyik, 2016 COA 42, ¶ 65, 383 P.3d 77, 89. “However, we review
the trial court’s decision regarding whether to give a particular jury
instruction for an abuse of discretion.” Id. “A jury instruction
20 should substantially track the language of the statute describing
the crime; a material deviation from the statute can result in
reversible plain error, depending on the facts of the case.” People v.
Weinreich, 119 P.3d 1073, 1076 (Colo. 2005). We review not only
whether the jury instructions faithfully tracked the law but also
whether they were confusing or may have misled the jury. Garcia v.
People, 2022 CO 6, ¶ 16, 503 P.3d 135, 140 (citing People v. Janes,
982 P.2d 300, 303-04 (Colo. 1999)).
¶ 52 We review all unpreserved nonstructural errors, including
errors in jury instructions, for plain error. See Hagos v. People,
2012 CO 63, ¶ 14, 288 P.3d 116, 120. We reverse under the plain
error standard of review only if the error was obvious and
substantial, meaning it “so undermined the fundamental fairness of
the [proceeding] itself as to cast serious doubt on the reliability” of
the outcome. People v. Crabtree, 2024 CO 40M, ¶ 43, 550 P.3d
656, 667 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).
2. Ramcharan Did Not Waive His Challenge to the Instructional Error
¶ 53 As a threshold matter, the People argue that Ramcharan
waived his instructional error argument because defense counsel
21 “agreed to the ‘substance’ of the proposed instructions as a whole”
and “his objection was limited to a singular request that the word
‘well-being’ be removed.” We disagree that such actions constituted
a waiver.
¶ 54 Whether a party waived an argument is a question of law that
we review de novo. Richardson v. People, 2020 CO 46, ¶ 21, 481
P.3d 1, 5. Waiver is the “intentional relinquishment of a known
right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d
893, 902 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247
(Colo. 1984)).
¶ 55 As Ramcharan asserts, “there is no evidence in the record that
[counsel] intentionally relinquished his right to have the jury
correctly instructed on the definition of ‘knowingly,’” even if his
counsel did not specifically object to that definitional instruction.
The facts in this case are similar to those in Rediger, where defense
counsel not only did not specifically object to the challenged
instruction but confirmed he was “satisfied with the instructions,”
and the record did not indicate that “the court or the parties
discussed that instruction.” Rediger, ¶ 10, 416 P.3d at 898. The
supreme court held that, on such facts, there was “no evidence,
22 either express or implied, that Rediger intended to relinquish his
right.” Id. at ¶ 42, 416 P.3d at 902. “For example, the record
contains no evidence that Rediger considered objecting to the
erroneous instruction but then, ‘for some tactical or other reason,
rejected the idea.’” Id. (citation omitted). So, too, in this case.
¶ 56 Therefore, Ramcharan did not waive his instructional error
argument.
3. The Court Erred by Providing an Instruction with an Incorrect Definition of “Knowingly”
¶ 57 We agree with Ramcharan that the court’s instruction
incorrectly defined “knowingly.” (The People concede that the
instruction “did not wholly track the statutory definition of
‘knowingly’ or the pattern jury instruction.”)
¶ 58 To prove both sexual assault on a child and contributing to
the delinquency of a minor, a prosecutor must prove beyond a
reasonable doubt that the defendant acted knowingly. See
§ 18-3-405(1) (“Any actor who knowingly subjects another not his
or her spouse to any sexual contact commits sexual assault on a
child if the victim is less than fifteen years of age and the actor is at
least four years older than the victim.”) (emphasis added); see also
23 Gorman v. People, 19 P.3d 662, 665 (Colo. 2000) (“[T]he culpable
mental state of knowingly applies to the act of contributing to the
delinquency” of a minor.) (emphasis added).
¶ 59 Section 18-1-501(6) defines “knowingly” as when a person “is
aware that his conduct is of such nature or that such circumstance
exists . . . [and] when he is aware that his conduct is practically
certain to cause the result.” See also COLJI-Crim. F:195 (2023)
(pattern jury instruction F:195 defines “knowingly” as “when he
[she] is aware that his [her] conduct is of such nature or that such
a circumstance exists . . . [and] when he [she] is aware that his [her]
conduct is practically certain to cause the result”).
¶ 60 The court’s definition of “knowingly,” however, did not
“substantially track the language of the statute” or that of the
pattern instruction. Weinreich, 119 P.3d at 1076. While section
18-1-501(6) refers to “aware[ness] that [the defendant’s] conduct is
of such nature or that such circumstance exists,” the court’s
instruction said that “knowingly” referred to “the actor’s general
awareness of the nature of his conduct in relation to the child or his
awareness of the circumstances in which he commits an act against
the well-being of the child.” (Emphasis added.) The court added the
24 qualifier “general” before “awareness” and materially deviated from
the statutory definition by specifying that the subject conduct must
be in relation to the child or the defendant’s awareness of the
circumstances in which his act impacts the child’s well-being. See
People v. Mendez, 897 P.2d 868, 871 (Colo. App. 1995) (“The
modification, expansion, or clarification of the definition of a term
defined by statute is not recommended, especially when the
definitions have been approved by the supreme court for use in
criminal proceedings.”).
¶ 61 In addition, the court’s instruction lacked the statutory
language that the person is “aware that his conduct is practically
certain to cause the result.” § 18-1-501(6). This is a material —
and significant — omission from the language the General Assembly
chose to include in the definition.
¶ 62 For these reasons, the court erred by incorrectly defining
“knowingly” — the mens rea element for both of the charged
offenses.
4. The Instructional Error Was Obvious
¶ 63 An error is obvious if it is “so clear-cut” that “a trial judge
should be able to avoid it without benefit of objection.” Crabtree,
25 ¶ 42, 550 P.3d at 667 (quoting Romero v. People, 2017 CO 37, ¶ 6,
393 P.3d 973, 976). Consequently, an error is obvious if it
“contravene[d] a clear statutory command, a well-settled legal
principle, or established Colorado case law.” Id. We agree with
Ramcharan that the error here was obvious.
¶ 64 First, as described in Part II.B.3 above, the instruction
contravened the clear language of section 18-1-501(6).
¶ 65 Second, as the People note, “[i]t appears that the instruction’s
language derived from People v. Noble, 635 P.2d 203 (Colo. 1981), a
felony child abuse case applying a former version of the child abuse
statute.” But the General Assembly enacted material amendments
to the child abuse statutes after the supreme court decided Noble.
Compare § 18-6-401(1), C.R.S. 1978, with § 18-3-405(1), (2)(a),
C.R.S. 2024. Thus, the instructional error contravened a clear
statutory command and Colorado case law, and was therefore
obvious. See Crabtree, ¶ 42, 550 P.3d at 667.
5. The Instructional Error Was Not Substantial
¶ 66 An error is substantial if, as noted above, it “so undermined
the fundamental fairness of the trial itself as to cast serious doubt
26 on the reliability of the judgment of conviction.” Id. at ¶ 43, 550
P.3d at 667 (quoting Wilson, 743 P.2d at 420).
¶ 67 “[A]n erroneous jury instruction does not normally constitute
plain error . . . where the record contains overwhelming evidence of
the defendant’s guilt.” Thompson v. People, 2020 CO 72, ¶ 54, 471
P.3d 1045, 1057 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.
2005)); see also Espinoza v. People, 712 P.2d 476, 478-79 (Colo.
1985).
¶ 68 The People contend that the error was not substantial because
the evidence against Ramcharan was overwhelming. We agree.
¶ 69 Turning first to the charge of sexual assault on a child, no
evidence contradicted A.M.’s testimony that Ramacharan put his
penis in her vagina. Indeed, in his interview with Detective Collins,
Ramcharan admitted that he “started to” have sex with A.M. The
jury watched the video of Ramcharan’s interview with Detective
Collins and the prosecutor showed the jury a transcript of the
interview.
¶ 70 Furthermore, the nurse who examined A.M. following the
alleged sexual assault testified at trial that A.M.’s genitalia were
inflamed and torn, consistent with sexual activity. Although the
27 nurse agreed on cross-examination that such injuries could occur
through consensual sex, and Ramcharan told Detective Collins that
“everything that happened [with A.M.] was completely consensual,”
Ramcharan could not avoid conviction by arguing that A.M. — a
fourteen-year-old girl — consented to engage in sex with him. See
People v. Hodge, 2018 COA 155, ¶ 16, 488 P.3d 436, 439-40
(“[C]hild sexual assault . . . recognizes that a child cannot legally
consent to sexual contact or to any conduct that facilitates that
sexual contact.”).
¶ 71 Lastly, the male Y-STR profile was consistent with
Ramcharan’s genetic material, with an expected frequency of “1 in
2,007 individuals.” Cf. People v. Brown, 2014 COA 155M-2, ¶¶ 7,
13, 360 P.3d 167, 170-71 (holding there was no reversible error
when an “expert testified that certain Y-STR profiles obtained from
the crime scene matched defendant’s profile”).
¶ 72 Overwhelming evidence also supported Ramcharan’s
conviction for contributing to the delinquency of a minor premised
on his act of forcing A.M. to smoke methamphetamine. As noted
above, officers found in the jacket Ramcharan had been wearing on
the day of the sexual assault the white pipe that A.M. said
28 Ramcharan forced her to smoke, containing the very type of residue
that A.M. had described. At trial, the prosecutor introduced into
evidence a photograph of the pipe, containing residue, on top of the
jacket and next to Ramcharan’s driver’s license.
¶ 73 Ramcharan disagrees that the evidence against him was
overwhelming. He argues that his admission that he “started to”
have sex with A.M. was vague and could encompass conduct that
did not constitute sexual assault on a child. In addition, he
challenges the People’s contention that the DNA analysis “strongly
tied” Ramcharan to the crime because an expert witness who
testified for the prosecution opined that the analysis showed only
that Ramcharan “could not be excluded from” the profile.
¶ 74 But Ramcharan does not demonstrate how the erroneous
definition of “knowingly” undermined “the fundamental fairness” of
his trial, particularly as his theory of defense was a general denial
of the charges. Crabtree, ¶ 43, 550 P.3d at 667 (quoting Wilson,
743 P.2d at 420). Although Ramcharan contends that the
instructional error “relieved the prosecution of its burden of proving
each element of each offense beyond a reasonable doubt,” such
argument is conclusory and does not overcome the undisputed,
29 overwhelming evidence in the record. See People v. Wallin, 167 P.3d
183, 187 (Colo. App. 2007) (declining to address arguments
presented in a perfunctory or conclusory manner).
¶ 75 For these reasons, we hold that the court’s instructional error
was not plain and, therefore, does not warrant reversal.
C. Requests for Substitute Counsel
¶ 76 Ramcharan contends that the court reversibly erred by
denying his multiple requests for substitute counsel because he
and his counsel had an irreconcilable conflict. We disagree.
1. Additional Facts
¶ 77 A public defender initially represented Ramcharan; he was
later represented by alternate defense counsel. Ramcharan asked
the court twice to discharge his public defender and thrice to
discharge alternate defense counsel. The court conducted five ex
parte hearings across a two-year period, over which four judicial
officers presided, to consider Ramcharan’s requests. (A court must
conduct a hearing, at which both attorney and client may testify, to
adjudicate a defendant’s assertion that his appointed attorney
cannot or will not completely represent him. People v. Bergerud,
223 P.3d 686, 694-95 (Colo. 2010).)
30 ¶ 78 In his first motion for new counsel, Ramcharan complained
that his public defender was not communicative and that there was
a “lack of trust” between them. The public defender responded that
Ramcharan did not want her honest assessment of his case.
Ramcharan further asserted that he disagreed with the direction
she was taking in developing a defense strategy. Specifically, he
told the court he wanted to pursue defenses resting on his
ignorance of A.M.’s age, which he attributed, in part, to a recent eye
injury. The public defender had told him “several times” that his
assertions would not support a defense.
¶ 79 At a Bergerud hearing in November 2020, the court found that
these facts did not establish a breakdown in communication
between Ramcharan and his public defender. The court explained
to Ramcharan that, “whether or not you agree with the way [your
lawyer] is formulating this case . . . , she gets to make the decision.”
(Ramcharan later apparently wanted his lawyer to argue that the
eye injury rendered his statements to the officers involuntary.)
¶ 80 Two months later, Ramcharan filed a second motion for new
counsel that rehashed the arguments in his first motion. But
following the Bergerud hearing on the second motion, the court
31 found that there had been a breakdown in communication between
the public defender and Ramcharan, discharged the public
defender, and appointed alternate defense counsel for him.
¶ 81 Five months later, Ramcharan moved to dismiss his new
counsel. Ramcharan complained that his new lawyer, like his
former lawyer, was not pursuing a defense relating to his eye injury,
which he said demonstrated that he had “unknowingly” had sex
with a child. Ramcharan also told the court that his new counsel
did not believe he had a defense and “causes doubt” and trust
issues, and that, as a result, Ramcharan “didn’t want to speak to
him.” Counsel responded that, because Ramcharan was refusing to
speak to him, “his ability to communicate with Ramcharan had
deteriorated to the point that he couldn’t effectively represent him.”
Following another Bergerud hearing, the court found that “this is
largely a situation where there is a significant difference in . . .
defense strategy,” which is not grounds to appoint new counsel, and
denied Ramcharan’s request.
¶ 82 Less than two weeks later, Ramcharan again told the court
that he and his new counsel had a complete breakdown in
32 communication and that the court should appoint a new lawyer for
him. The court conducted a fourth Bergerud hearing.
¶ 83 At the hearing, counsel “conceded that he missed an
appointment he had scheduled with Ramcharan to get a release for
hospital records” relating to the eye injury. Ramcharan said he had
lost trust in the lawyer as a consequence. Nevertheless, the court
again denied Ramcharan’s request for new counsel. During the
hearing, the court advised Ramcharan of his right to represent
himself. Ramcharan said he did not want to do so.
¶ 84 In November 2021, the court held a fifth Bergerud hearing
after Ramcharan again requested new counsel. Ramcharan and his
counsel both told the court that their communications had broken
down. In addition, Ramcharan continued to emphasize his belief
that the eye injury was critical to his defense, as he claimed it
impacted the voluntariness of his statements to the officers.
Defense counsel told the court that he disagreed with Ramacharan
regarding the relevance of the eye injury and said that Ramcharan
would not accept his explanation that mistake as to the victim’s age
is not a defense to a sexual assault on a child charge. The court
observed that “[t]he problem for me is that no matter who tells him
33 that his defense is not viable, he’s not going to believe it.” The court
again denied Ramcharan’s request to appoint new counsel.
2. Standard of Review and the Law Governing a Defendant’s Request to Discharge Counsel
¶ 85 “A defendant’s motion to discharge an attorney is addressed to
the sound discretion of the trial court, and its ruling will not be
disturbed on review absent an abuse of discretion.” People v.
Bostic, 148 P.3d 250, 259 (Colo. App. 2006). “Before change of
counsel is warranted the trial court must verify that the defendant
has ‘some well founded reason for believing that the appointed
attorney cannot or will not completely represent him.’” People v.
Arguello, 772 P.2d 87, 94 (Colo. 1989) (quoting 2 Wayne R. LaFave
& Jerold H. Israel, Criminal Procedure 37 (1984)).
¶ 86 “When an indigent criminal defendant voices objections to
court-appointed counsel, the trial court must inquire into the
reasons for dissatisfaction. If the defendant establishes good cause,
such as a conflict of interest or a complete breakdown of
communication, the court must appoint substitute counsel.” People
v. Apodaca, 998 P.2d 25, 28 (Colo. App. 1999). “Conversely, if the
court has a reasonable basis for concluding that the attorney-client
34 relationship has not deteriorated to the point where counsel is
unable to give effective assistance, the court is justified in refusing
to appoint new counsel.” Id.
3. The Court Did Not Abuse Its Discretion by Denying Ramcharan’s Requests for New Counsel
¶ 87 The transcripts of the five Bergerud hearings demonstrate that
the court did not abuse its discretion by rejecting all but one of
Ramcharan’s requests to discharge his lawyer and appoint new
counsel for him. Rather, the record underscores that the court
correctly found that the difficulty in the communications between
Ramcharan and his lawyers primarily rested on their disagreements
regarding the relevance of Ramcharan’s eye injury. As the court
noted, case strategy is a matter left to counsel. Bergerud, 223 P.3d
at 693 (“On issues of trial strategy, defense counsel is ‘captain of
the ship.’” (quoting Arko v. People, 183 P.3d 555, 558 (Colo. 2008))).
¶ 88 Further, because a “source of limitations on an attorney’s
actions is that these decisions of trial strategy are held to a
standard of professional reasonableness,” id. at 694, the court
correctly found that Ramcharan’s lawyers did not pursue
35 Ramcharan’s desired strategy regarding the eye injury because
such strategy could not support a valid defense.
¶ 89 Because the purported conflict primarily arose from
Ramcharan’s mistaken belief that he could dictate the legal strategy
his lawyers pursued and his resulting refusal to cooperate with
them, there was no basis for appointment of new counsel. See
People v. Kelling, 151 P.3d 650, 653 (Colo. App. 2006)
(“Disagreements pertaining to matters of trial preparation, strategy,
and tactics do not establish good cause for substitution of
counsel.”); see also People v. Hodges, 134 P.3d 419, 425 (Colo. App.
2005) (“Neither the existence of animosity between defendant and
[the lawyer] nor [the lawyer’s] asserted disagreement with defendant
regarding the strength of defendant’s case constitutes an actual
conflict of interest requiring the appointment of substitute
counsel.”), aff’d on other grounds, 158 P.3d 922 (Colo. 2007).
¶ 90 For these reasons, we hold that the court did not abuse its
discretion by denying Ramcharan’s requests that the court
discharge his lawyers and appoint new counsel for him.
36 III. Disposition
¶ 91 The judgment of conviction is affirmed.
JUDGE SCHUTZ and JUSTICE MARTINEZ concur.