2
Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 23CA481
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Jaycey DeHoyos, Assistant Attorney General Denver, Colorado
3
Attorneys for Respondent: Fuller &Ahern, P.C. Brian M.
Close Parker, Colorado
4
JUSTICE BERKENKOTTER delivered the Opinion of the Court, in
which CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BLANCO joined.
5
OPINION
BERKENKOTTER, JUSTICE.
¶1
Donald Louis Gerle was charged with first and second degree
assault and false imprisonment. See §
18-3-202(1)(a), C.R.S. (2025); § 18-3-203(1)(g), C.R.S.
(2025); § 18-3-303(1), C.R.S. (2025). The People alleged
that he repeatedly beat the victim, his wife, between
November 12, 2021, and November 15, 2021; confined her in a
closet during the last fourteen hours of the assaults; and
caused her to suffer serious bodily injury and other
significant injuries, including two black eyes, two broken
ribs, plate-sized bruises on her body, and a collapsed lung.
¶2
At trial, Gerle sought to introduce texts that he and the
victim had exchanged on November 8, three days before the
charged incident began. The texts reflected that the two had
previously engaged in sexual bondage, discipline, dominance,
submission, sadism, and masochism ("BDSM")
role-playing. Gerle claimed that the texts were probative of
the consent element of his false imprisonment charge as well
as the intent element of all three charges. The People
objected, arguing that the texts should be excluded under
Colorado's rape shield statute, § 18-3-407, C.R.S.
(2025), and under CRE 401, 402, and 403.
¶3
The trial court sustained the objection, ruling that
discussion of sexual BDSM-related evidence violated the rape
shield statute and that the texts were not relevant because
they did not relate to the time during which the charged
conduct occurred. The court accordingly barred defense
counsel from mentioning BDSM
6
in their opening statement, limited counsel's questioning
of the victim regarding the text messages, and declined to
admit the texts as evidence.
¶4
Gerle was convicted at trial and appealed, arguing that the
trial court erroneously (1) applied the rape shield statute,
(2) denied his request for a mistrial, and (3) excluded
evidence during his cross-examination of the
victim—which cumulatively warranted reversal.
¶5
A division of the court of appeals concluded that the trial
court erred in applying the rape shield statute because Gerle
had not been charged with sexual assault. People v.
Gerle, No. 23CA481, ¶¶ 22, 25 (July 11, 2024).
It then determined that the trial court erred in excluding
the BDSM-related evidence because the texts showed the
"particular nature" of Gerle and the victim's
relationship and thus were relevant to consent and lack of
intent. Id. at ¶ 38 (quoting People v.
Garcia, 179 P.3d 250, 258 (Colo.App. 2007)). The
division reversed and remanded the case for a new trial.
Id. at ¶ 47.
¶6
We now reverse the division's judgment. We conclude that
the trial court did not abuse its discretion in excluding the
BDSM-related evidence as irrelevant. See CRE 401.
While a prior act may be relevant to charged conduct, the
prior act here involved a BDSM encounter that was explicitly
sexual in nature. No evidence indicated that Gerle and the
victim planned or were otherwise engaged in a consensual
sexual BDSM encounter during the charged incident. Therefore,
this
7
evidence was inadmissible to suggest that the victim
consented to Gerle confining her or to suggest that Gerle did
not intend to confine the victim against her will or to
assault her, but rather acted recklessly.[1] That is, the text
messages do not make it more probable that the victim
consented to being confined or less probable that Gerle
intended to confine and assault the victim.
¶7
We need not address the division's decision as to the
rape shield statute because the People concede the trial
court's error.
I.
Facts and Procedural History
¶8
Gerle and the victim began arguing on Thursday, November 11,
2021, when the victim, in response to a question from Gerle,
said she could not remember the name of her ex-boyfriend.
Gerle did not believe the victim, and what began as a verbal
argument escalated into physical abuse, which intensified
over the course of the next three days. On Thursday, Gerle
broke the victim's laptop and printer. On Friday, when
the argument about the ex-boyfriend resumed, Gerle used a
camera tripod like a bat and hit the victim with it until the
tripod's legs bent.
¶9
After the argument resumed on Saturday evening, Gerle
confined the victim to a walk-in closet for roughly fourteen
hours (into the early morning hours on
8
Sunday) and beat her with his hands and various objects
including hangers, a belt buckle, and steel-toe boots. Gerle
insisted, while he had the victim confined, that she write
down the name of her ex-boyfriend. While in the closet, the
victim lost consciousness.
¶10
When the victim regained consciousness and was eventually
able to get up, she drove herself to the hospital. There, she
was treated for two black eyes, a collapsed lung, a puncture
wound on her ankle, two broken ribs, and bruises all over her
body, including behind her ears. Gerle was charged with
assault in the first degree, assault in the second degree,
and false imprisonment.
¶11
At trial, Gerle's opening statement suggested that the
charged conduct was part of Gerle and the victim's
"ongoing and regular sexual fantasy role-playing."
The People objected, noting that the defense had not provided
notice of their intent to offer evidence of the victim's
past sexual conduct, as required under the rape shield
statute. See § 18-3-407(2)(a). The trial court
sustained the objection under the rape shield statute and
barred defense counsel from mentioning the sexual BDSM
role-playing during opening statement.
¶12
Gerle later sought to admit texts that he and the victim
exchanged on November 8. He argued that they were relevant to
disprove the consent element of the false imprisonment
charge, and the intent element of all the charges. The texts
included a screenshot of an erotic novel the victim had read,
Gerle's and the
9
victim's discussion of the novel, and descriptions of a
variety of their sexual fantasies. These fantasies included a
sexual BDSM role-playing scenario the two appeared to have
planned for that evening, which included Gerle using a soft
whip on the victim's back. The texts included the
following relevant exchanges:
Gerle: You still need to b[e] whipped on the back [sixteen]
times for your Disobedience—SIR[.]
Victim: Thank you SIR[,] PET deserves whatever SIR
delivers[.] .
...
Gerle: Those [three] rules will b[e] in our SUB / DOM
contract. W[ith] a list of punishments for rule breaking[.]
Victim: Yes, SIR[.]
....
Gerle: B[e] home in [ten] min[utes].... [Yo]u still have some
lashes coming.
Victim: I am looking forward to them SIR[.]
....
Victim: PET gets hot with anticipation of what's coming.
PET just realized she likes the soft whip[.]
....
Gerle: Nothing turns me on more than hearing [you] talk about
real or imagined sex stories[.]
¶13
The People objected to the admission of these texts based on
the rape shield statute and on the ground that they were not
relevant. The court deferred ruling, as Gerle's counsel
indicated that they would file a brief regarding the
admissibility
10
of the text messages that evening. Counsel did so, arguing
that the rape shield statute did not apply, that the messages
were relevant, and that the court's limitation on
Gerle's opening statement warranted a mistrial. The trial
court denied the motion.
¶14
The court ruled that Gerle could not use the text messages
unless defense counsel could connect the texts "to the
timeframe that's relevant to these charges," in
which case it would be "fair game to ask about it."
If, however, the victim denied any such connection, then
Gerle would be "stuck with that answer." The court
additionally allowed Gerle's counsel to cross-examine the
victim about whether the conduct on the charged dates was
consensual.
¶15
On cross-examination, the victim answered that she had not
consented to being whipped—"not like he did to
me"—on the dates of the incident. She explained
that she had previously consented to Gerle gently using a
soft "cat [o'] nine tails thing." But she
emphasized that "we weren't engaged in that during
[those four] days." The trial court did not allow any
follow-up questions and sustained the People's objection
to the admission of the text messages.
¶16
The jury found Gerle guilty on all counts, and the trial
court sentenced him to twenty-two years in prison. Gerle
appealed, arguing that the court abused its discretion by (1)
applying the rape shield statute to limit his opening
statement, (2) denying his request for a mistrial, and (3)
improperly excluding the
11
BDSM-related texts. He further asserted that the cumulative
effect of the errors warranted reversal.
¶17
A division of the court of appeals agreed. It concluded that
the trial court abused its discretion both by applying the
rape shield statute and by otherwise excluding the texts as
irrelevant. Gerle, ¶ ¶ 22-23, 27. First,
the division held that the rape shield statute was
inapplicable, as there was no allegation that the victim had
been sexually assaulted, and section 18-3-407(2)(a) limits
the statute's application to cases in which a witness is
a sexual assault victim or the crime charged is a sexual
offense. Gerle, ¶ 25.
¶18
Second, the division determined that the trial court erred in
declining to admit the BDSM-related texts under general
relevance principles. Id. at ¶ 29. It noted
that in Garcia, 179 P.3d at 255—a case that it
viewed as comparable—another division of the court of
appeals had concluded that a victim's past sexual
fantasies were relevant to issues of consent. Gerle,
¶ 31. Therefore, the division reasoned, the victim's
BDSM fantasies were similarly relevant to Gerle's false
imprisonment and assault charges. Id. at ¶ 32.
The victim's "potential consent to being locked in a
bedroom closet to engage in BDSM activities," the
division explained, spoke to the "lack of consent"
element of false imprisonment. Id. at ¶¶
30-33, 36 (citing Garcia, 179 P.3d at 254-58).
12
¶19
The division further determined that "if the incident
began as a consensual BDSM encounter," then Gerle may
have lacked the intent to confine the victim against her will
and may have injured the victim recklessly rather than with
intent. Id. at ¶¶ 33-35. The division
noted that evidence that the two had "previously
participated in BDSM role-playing encounters and had just
planned another such encounter makes it more probable that
the victim consented to at least some of the conduct and
makes it less likely that Gerle had the requisite intent for
the three charged crimes." Id. at ¶ 35
(citing Garcia, 179 P.3d at 256).
¶20
The division then concluded that the BDSM-related texts were
not unfairly prejudicial under Rule 403. Gerle,
¶ 38. Leaning again on Garcia, the division
determined that the probative value of showing "the
particular nature . . . of the relationship" far
outweighed any prejudice. Id. (alteration in
original) (quoting Garcia, 179 P.3d at 258). Having
decided that the trial court should have admitted the texts,
the division ultimately concluded that these cumulative
errors may have affected the fairness of the trial and
influenced the verdict. Id. at ¶ 47.
Accordingly, the division reversed and remanded the case to
the trial court for a new trial. Id.
¶21
The People petitioned for certiorari, and we granted their
petition.[2]
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II.
Analysis
¶22
We begin by setting forth the applicable standard of review
and relevant case law. Next, we briefly cover the
requirements of the rape shield statute, § 18-3-407.
Then, we discuss Rule 401 and 402. Finally, we consider the
facts of this case and assess whether the texts are relevant
to the issues of consent and intent. Ultimately, we reverse
the division's conclusion as to the relevance of the
BDSM-related texts and leave undisturbed its conclusion that
the rape shield statute did not apply here.
A.
Standard of Review
¶23
We review a trial court's evidentiary ruling for an abuse
of discretion. People v. Elmarr, 2015 CO 53, ¶
20, 351 P.3d 431, 437-38. "A trial court abuses its
discretion when its decision is 'manifestly arbitrary,
unreasonable, or unfair,' or based on a misapplication of
the law." People v. West, 2025 CO 61, ¶
13, 578 P.3d 832, 835 (quoting People v. Kent, 2020
CO 85, ¶ 28, 476 P.3d 762, 768).
B.
The Trial Court Abused Its Discretion by Improperly Applying
the Rape Shield Statute
¶24
In cases involving sexual assault, evidence of a victim's
or a witness's prior sexual history is generally presumed
irrelevant outside of specifically enumerated
14
exceptions. See § 18-3-407. The rape shield
statute was designed to protect victims and witnesses from
"humiliating 'public "fishing expeditions"
into their past sexual conduct.'" People v.
Gulyas, 2022 COA 34, ¶ 41, 512 P.3d 1049, 1057
(quoting People v. MacLeod, 176 P.3d 75, 79 (Colo.
2008)).
¶25
Here, the People concede that the procedure and notice
requirements in section 18-3-407 do not apply. The crimes
charged—false imprisonment and first and second degree
assault—are not sexual offenses, and there is no
allegation that the victim had been sexually assaulted.
Accordingly, we do not disturb the division's conclusion
that the trial court's rape shield ruling was erroneous
as a matter of law. Gerle, ¶ 25.
C.
The Trial Court Did Not Abuse Its Discretion by Excluding the
BDSM-Related Texts
¶26
That leaves the question of relevance. The People contend
that the trial court did not abuse its discretion in
excluding the BDSM-related text messages because the messages
were not relevant to the charged conduct. We agree.
¶27
Generally, evidence is relevant and presumptively admissible
when it has "any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable." CRE 401; see
also CRE 402 ("Evidence which is not relevant is
not admissible."). In criminal cases, evidence that
"makes it more or less probable that a criminal act
occurred" is relevant. People v. Clark, 2015
COA 44, ¶ 17, 370 P.3d 197, 204.
15
¶28
Conversely, evidence that is irrelevant is inadmissible at
trial. CRE 401; CRE 402. Evidence that is too remote in
logical relation to a matter in dispute should not be
admitted. Fletcher v. People, 179 P.3d 969, 974
(Colo. 2007); see also People v. Botham, 629 P.2d
589, 602 (Colo. 1981) ("[F]acts bearing so remotely upon
or collateral to the issue, that they afford only conjectural
inference, should not be admitted in evidence.").
¶29
Importantly here, Gerle is not charged with sexual assault;
he is charged with false imprisonment and first and second
degree assault. As we have explained, he sought to admit
evidence regarding the text messages during the victim's
cross-examination to contest the consent element of the false
imprisonment charge and the intent element of all three
charges. But the conduct described in the November 8 texts
bears no similarity to the charged conduct which began
three days later and took place over the span of
four days.
¶30
Most significantly, the texts, unlike the charged conduct,
are overtly sexual in nature. True, Gerle mentions whipping
the victim "on the back [sixteen] times for [her]
[d]isobedience" and still "hav[ing] some lashes
coming." And the texts also identify "a list of
punishments" for breaking certain role-playing rules.
But these messages are part of Gerle's and the
victim's sexually charged conversation. ¶31 Here,
context matters. The subject of whipping first arose when
Gerle directed the victim to provide details about an erotic
novel she had read. Later,
16
Gerle and the victim described a variety of their sexual
fantasies. Notably, Gerle repeatedly stated how aroused he
was. Throughout the texts, the two used graphic language,
discussing a range of sexual topics from what makes the
victim "hot," to sex toys, to a specific sex act
that the victim said she liked engaging in with Gerle.
¶32
To the extent that the text messages revealed a plan for a
sexual encounter, the encounter described was imminent, not
something planned to begin days later. When Gerle told the
victim that she had "some lashes coming," he also
told her that he would be home soon and that he was sexually
aroused from their earlier texts. The victim replied that she
was "looking forward to [it]" and that she would be
waiting for him. The texts did not suggest that they were
planning a consensual BDSM sexual encounter three to seven
days later.
¶33
What transpired during those four days was altogether
different. The charged conduct began as an argument about the
victim's ex-boyfriend. The victim claimed she did not
remember the ex's name, but Gerle did not believe her and
insisted that she did. Their argument continued as
Gerle's physical assaults intensified, including during
the fourteen hours during which Gerle confined the victim in
their bedroom closet. It was there, in the midst of beating
the victim, that he forced her to write down her
ex-boyfriend's name.
17
¶34
Nothing suggests that this conduct which began on Thursday
and escalated on Friday and Saturday and into the early
morning hours on Sunday had anything to do with sex. The
stark differences between the impending sexual encounter with
a soft whip described in the texts and Gerle's later
confinement and physical assault of the victim renders the
evidence regarding the text messages irrelevant and thus
inadmissible. In short, because there is no resemblance
between the two instances of conduct, the texts would
improperly invite the jury to speculate about consent and
intent. And while Gerle might have argued that this evidence
was conditionally relevant, see CRE
104(b),[3] the text messages did not connect to any
theory that Gerle and the victim planned to engage in or had
engaged in any sexual acts during the charged incident.
What's more, Gerle does not point to any evidence that
would support this missing condition.
¶35
But what about the division's conclusion, based on
Garcia, that the texts were relevant?
Gerle, ¶¶ 34-35, 48. To answer this
question, we turn to consider Garcia.
There, a division of the court of appeals considered
the admissibility of evidence in a sexual assault prosecution
regarding (1) the victim's rape fantasy and (2) prior
consensual sex between the defendant and the victim.
Garcia,
18
179 P.3d at 255-57. The trial court in Garcia
excluded the defendant's testimony that the victim
fantasized about being tied up with a rope and raped; that he
and the victim had acted her fantasy out several times; and
that before having sexual intercourse with the defendant on
the date charged, the victim said, "[I]f we could do it
the way I like to do it, my favorite fantasy."
Id. at 256.
¶36
The Garcia division determined that the trial court
erred in barring the defendant's testimony under the rape
shield statute. Id. at 255. It concluded that the
victim's alleged rape fantasy and prior acting out of the
fantasy were relevant to consent. Id. It reasoned
that the defendant's testimony in this regard could make
his admission that he tied her up and had sex with her at
knifepoint reconcilable with consent, rather than inherently
nonconsensual. Id. at 256.
¶37
In this case, the division's reliance on Garcia
is misplaced. In Garcia, the victim's fantasy
and the couple's acting out of the fantasy as described
by the defendant were almost identical to the sexual assault
with which the defendant was charged. Id. at 257.
¶38
But as we have already explained, the conduct with which
Gerle was charged is not at all similar to the encounter
described in the texts. That conduct arose out of the
argument between Gerle and the victim regarding her
ex-boyfriend. It had nothing to do with sex. Thus, the
division below erred by extending the logic of
Garcia to infer a connection between the
BDSM-related texts
19
and the charged conduct here without considering the very
different circumstances of the facts before it. Because the
conduct with which Gerle is charged had nothing to do with
sex, evidence regarding Gerle's and the victim's past
consensual sexual BDSM encounter is not relevant.
See CRE 401. The texts cannot support an inference
of reckless escalation of an otherwise consensual sexual BDSM
encounter.
¶39
Put differently, the evidence regarding Gerle's and the
victim's sexual BDSM encounter does not make it more
probable that the victim consented to being confined in the
closet or make it less probable that Gerle intended to
confine and assault the victim. See CRE 401. For
these reasons, the trial court did not abuse its discretion
in excluding the BDSM-related text messages and limiting
Gerle's opening statement and cross-examination of the
victim regarding the texts.
III.
Conclusion
¶40
We reverse the judgment of the court of appeals.
---------
Notes:
[1] We do not understand Gerle to argue
that the victim consented to the physical activity that
caused serious bodily injury. Consent is not a defense to
assault that causes serious bodily injury as a matter of law.
§ 18-1-505(2), C.R.S. (2025).
[2] We granted certiorari to review the
following issue:
Whether evidence of prior consensual sexual activity
between a victim and defendant is relevant to prove the
victim's consent and the defendant's lack of intent
for purposes of false imprisonment and assault
charges.
[3] Conditionally relevant evidence is
evidence whose relevance depends on the introduction of
subsequent evidence establishing its probative value. See
People v. Dunham, 2016 COA 73, ¶ 33, 381 P.3d 415,
422.