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 February 27, 2020
2020COA33
No. 18CA1121, People v. Pratarelli — Crimes — First Degree Kidnapping — Elements — Forcibly Seize and Carry
A division of the court of appeals considers the meaning of the
“forcibly seizes and carries” element in the first degree kidnapping
statute, where the defendant was convicted of kidnapping his own
child. The division adopts the plain meaning of the words “force”
and “forcibly” and concludes that, in order to prove the “forcibly
seizes and carries” element of the offense, the prosecution needed to
prove that the defendant used (or threatened to use) power,
violence, or pressure against his daughter in order to seize and
carry her, and that he did so against opposition or resistance. The
division further concludes that, because no custody order restricted
the defendant’s right to the care, custody, and control of his child,
the evidence was insufficient to show that he forcibly seized and carried his daughter. Because the evidence did not show that the
defendant forcibly seized and carried his daughter, the division
vacates the first degree kidnapping conviction and sentence.
The division also considers and rejects the defendant’s claim
that the district court impaired his ability to investigate mental
condition evidence and thus violated his constitutional right to
present a defense. The division therefore affirms the remaining
convictions. COLORADO COURT OF APPEALS 2020COA33
Court of Appeals No. 18CA1121 Pueblo County District Court No. 16CR2182 Honorable Kimberly Jo Karn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Marcello Enrique Pratarelli,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Román and Casebolt*, JJ., concur
Announced February 27, 2020
Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney General, Daniel E. Rheiner, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Taylor Ivy, Lakewood, 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. 2019. ¶1 Defendant, Marcello Enrique Pratarelli, appeals his judgment
of conviction entered on jury verdicts finding him guilty of first
degree kidnapping, second degree kidnapping, use of a stun gun,
and third degree assault. Because insufficient evidence supports it,
we vacate the first degree kidnapping conviction. But we affirm the
remaining convictions.
I. Background and Procedural History
¶2 Mr. Pratarelli and his wife separated in September 2016. After
the separation, they agreed to jointly parent their three-year-old
daughter. But they didn’t obtain a parenting time (or custody)
order. Instead, they proceeded under an informal, flexible
parenting arrangement that varied from week to week, depending
on their respective schedules. Under this arrangement, on days
that Mr. Pratarelli parented their daughter, he usually kept her
overnight and returned her to daycare the next morning.
¶3 At trial, Mr. Pratarelli and his wife agreed that, consistent with
their parenting arrangement, Mr. Pratarelli picked their daughter
up from daycare on the afternoon of November 7, 2016. Mr.
Pratarelli testified that later that night he spoke with his wife on the
telephone and confronted her about text messages she had
1 exchanged with another man. After the call ended, Mr. Pratarelli
explained that he “packed [his daughter] up in the car,” believing a
drive would help her fall asleep. Once in the car, Mr. Pratarelli
decided to drive to his wife’s house to continue the confrontation
about the texts.
¶4 When he reached his wife’s house, he waited in his car with
his daughter asleep in the back seat. His wife testified that, when
she arrived home, Mr. Pratarelli opened her car door, pushed her
against the console, stunned her with a taser, grabbed her by the
hair, and dragged her down the driveway. Two neighbors testified
that they heard someone screaming, went outside, and saw Mr.
Pratarelli run to his car and drive away.
¶5 Back in the car with his still-sleeping daughter, Mr. Pratarelli
first decided to drive to El Paso, Texas (where he testified his sister
lived) but ultimately drove to Mexico. While there, Mr. Pratarelli
and his wife communicated via telephone and email. At trial, his
wife testified that she begged Mr. Pratarelli to return their daughter,
and she “assure[ed] him that [she] would drop all of the charges,
and he would have unsupervised visitation.” She testified she
offered these concessions to get her daughter back. She explained
2 that Mr. Pratarelli eventually said, “okay, we’ll get it in writing,” and
the two arranged to meet in Mexico. They did, and his wife then
returned to the United States with their daughter.
¶6 After Mr. Pratarelli returned to Colorado, he was arrested and
charged with second degree kidnapping, use of a stun gun, third
degree assault, and criminal mischief. These charges all related to
Mr. Pratarelli’s altercation with his wife.
¶7 Months later, the prosecution filed an amended complaint and
information charging Mr. Pratarelli with two counts related to his
daughter — first degree kidnapping and violation of custody. The
prosecution later dismissed the violation of custody charge.
¶8 The jury acquitted Mr. Pratarelli of criminal mischief, but
otherwise convicted him as charged. The district court then
sentenced Mr. Pratarelli to a total of nine years in prison for the
crimes related to his wife and, consecutive to that, eleven years for
first degree kidnapping.
II. Parental Rights
¶9 Every parent has a fundamental right to the care, custody,
and control of their child. Troxel v. Granville, 530 U.S. 57, 66
(2000); accord In re Parental Responsibilities Concerning B.J., 242
3 P.3d 1128, 1135 (Colo. 2010). “‘Legal custody’ may be taken from a
parent only by court action.” § 19-1-103(73)(a), C.R.S. 2019; see
also § 14-10-108, C.R.S. 2019 (authorizing a court to issue
temporary orders allocating parental responsibilities in a
dissolution of marriage case); 14-10-124, C.R.S. 2019 (requiring a
court to allocate parental responsibilities in a dissolution case). 1
Without such an order, parents share unrestricted custodial rights.
See Armendariz v. People, 711 P.2d 1268, 1270 (Colo. 1986). So,
absent a custody order, a parent generally may not be convicted of
kidnapping his own child. See Commonwealth v. Beals, 541 N.E.2d
1011, 1013 (Mass. 1989) (acknowledging the general rule that,
absent a custody order, neither parent “commits the crime of
kidnapping by taking exclusive possession of the child”); 1 Am. Jur.
2d Abduction and Kidnapping § 35, Westlaw (database updated Jan.
2020). While some states have legislated otherwise, see, e.g., Ariz.
1 Although we use the term “custody,” we recognize that in dissolution of marriage proceedings, the legislature replaced the term “custody” with “parental responsibilities.” § 14-10-103(4), C.R.S. 2019. Because this isn’t a dissolution of marriage case, and the new term doesn’t change “the legal rights of any custodial parent with respect to the child,” id., we use the word “custody” when referring to Mr. Pratarelli’s legal rights with respect to his daughter.
4 Rev. Stat. Ann. § 13-1302(A)(2) (2019), Colorado has only directly
addressed parental kidnapping in its violation of custody order
statute. See People v. Armendariz, 684 P.2d 252, 257-58 (Colo.
App. 1983) (Tursi, J., dissenting in part) (“[T]he General Assembly
has not chosen to criminalize the act of one parent taking a child
from the physical custody of another parent, absent a court order
granting custody to the other parent.”), aff’d in part and rev’d in
part, 711 P.2d 1268 (Colo. 1986); see also Legislative Council of the
Colo. Gen. Assembly, Preliminary Revision of Colorado Criminal
Laws, Research Pub. No. 98, at 20-22 (Nov. 1964) (recommending
the addition of the crime of violation of custody to address the gap
in law where one parent takes a child in violation of a custody
order); Ch. 121, sec. 1, § 40-3-304, 1971 Colo. Sess. Laws 422
(adding violation of custody crime to address parental kidnapping).
¶ 10 Consistent with this rule, our supreme court has concluded
that “[i]n the absence of a court order granting legal or physical
custody,” parents “share[] an equal right to the custody of the[ir]
child.” Armendariz, 711 P.2d at 1270. And because a parent with
legal custody of a child cannot ordinarily seize that child “without
. . . consent” (an element of second degree kidnapping), our
5 supreme court has held that a parent with legal custody cannot
commit second degree kidnapping. Id. (vacating father’s second
degree kidnapping conviction); cf. Lee v. People, 53 Colo. 507, 511,
127 P. 1023, 1025 (1912) (affirming kidnapping conviction where
father took his child in violation of a custody decree); People v.
Metcalf, 926 P.2d 133, 141 (Colo. App. 1996) (affirming second
degree kidnapping conviction where father seized child in violation
of a custody order).
¶ 11 Despite this constitutional overlay and the undisputed fact
that Mr. Pratarelli and his wife had no custody order, the interplay
between the first degree kidnapping charge and Mr. Pratarelli’s
unrestricted custodial rights was never considered at trial. Nor do
the parties do so here. Indeed, neither Mr. Pratarelli nor the People
address how Mr. Pratarelli could “take possession of” (that is seize)
his daughter when he already had the unrestricted legal right to her
care, custody, and control. See Metcalf, 926 P.2d at 137 (“seize”
means “to take possession of forcibly, to grasp, to snatch or to put
in possession” (quoting Black’s Law Dictionary 1219 (5th ed.
1979))); Webster’s Third New International Dictionary 2057 (2002)
(“seize” means “to take possession of”); see also § 19-1-103(73)(a).
6 ¶ 12 But because the parties don’t address whether a parent with
unrestricted physical and legal custody can seize his own child
under the first degree kidnapping statute, we turn to Mr. Pratarelli’s
sufficiency challenge.
III. Sufficiency of the Evidence
¶ 13 Mr. Pratarelli contends that the prosecution presented “no
evidence” that he “forcibly” seized and carried his daughter and,
thus, the first degree kidnapping conviction must be vacated.
Under the circumstances here, we agree.
A. Standard of Review
¶ 14 We review sufficiency claims de novo. People v. Rediger, 2018
CO 32, ¶ 55. In doing this, we consider whether the evidence, when
viewed in the light most favorable to the prosecution, was “both
substantial and sufficient to support the conclusion by a reasonable
mind that the defendant was guilty beyond a reasonable doubt.” Id.
A criminal verdict may not be based on guessing, speculation, or
conjecture. People v. Perez, 2016 CO 12, ¶ 25.
¶ 15 We also interpret statutes de novo. Id. at ¶ 8. In doing so, our
primary task is to give effect to the legislature’s intent. McCoy v.
People, 2019 CO 44, ¶ 37. To do that, we look first to the plain
7 language of the statute. Id. A commonly accepted meaning is
preferred over a strained or forced interpretation. People v. Voth,
2013 CO 61, ¶ 21. When determining the common meaning of
undefined statutory words, we may consider a recognized dictionary
definition. See id. at ¶ 23; People v. Hunter, 2013 CO 48, ¶ 10
(determining the plain meaning of the statutory term “stranger” by
consulting Webster’s New College Dictionary and Black’s Law
Dictionary).
B. First Degree Kidnapping
¶ 16 A person commits first degree kidnapping if, as relevant here,
he “[f]orcibly seizes and carries any person from one place to
another” “with the intent thereby to force the victim or any other
person to make any concession or give up anything of value in order
to secure a release of a person under the offender’s actual or
apparent control.” § 18-3-301(1)(a), C.R.S. 2019.2
¶ 17 The General Assembly didn’t define “forcibly” or “force” in the
first degree kidnapping statute. So we consider the dictionary
definitions to determine the meaning of these undefined, though
2 Unless otherwise indicated, references to the first degree kidnapping statute are to subsection 301(1)(a).
8 common, terms. The dictionary tells us that “forcible” means
“[e]ffected by force or threat of force against opposition or
resistance.” Black’s Law Dictionary 788 (11th ed. 2019); see also
Webster’s Third New International Dictionary at 888 (defining
“forcible” as “effected by force used against opposition or resistance:
obtained by compulsion or violence”). And “force” means “[p]ower,
violence, or pressure directed against a person or thing.” Black’s
Law Dictionary at 787.
¶ 18 Applying these definitions, the prosecution had to show that
Mr. Pratarelli used (or threatened to use) power, violence, or
pressure against his daughter to seize and carry her, and that he
did so against opposition or resistance. After reviewing the record,
we see no evidence that Mr. Pratarelli did. Specific to the “forcibly
seize and carry” element, the record here shows only that
• per the agreement with his wife, Mr. Pratarelli picked his
daughter up from daycare on Monday, November 7,
2016;
• she continued in his care all afternoon and evening;
• he later put her in his car to go for a drive;
• she fell asleep in the car;
9 • she remained sleeping in the car when he assaulted his
wife; and
• after the assault, he drove with his still-sleeping daughter
to Mexico.
¶ 19 Put simply, nothing in this evidence shows Mr. Pratarelli used
any force (or threat of force) to seize and carry his daughter. More
to the point, no evidence shows he used (or threatened to use)
power, violence, or pressure against his daughter to seize and carry
her against opposition or resistance.
¶ 20 This is perhaps unsurprising given that the focus of the
kidnapping charge at trial was not on the “forcibly seize and carry”
element, but on the concession element. See § 18-3-301 (The
forcible seizure and carrying must be “with the intent . . . to force
the victim or any other person to make any concession or give up
anything of value in order to secure a release of a person under the
offender’s actual or apparent control.”). To the extent the
prosecution addressed the “forcibly seize and carry” element at all,
it did so briefly. For instance, in his opening statement, the
prosecutor said that Mr. Pratarelli drove to Mexico “without [his
wife’s] permission.” But Armendariz teaches that because no
10 custody order limited his right to the care, custody, and control of
his daughter, Mr. Pratarelli didn’t need his wife’s permission or
consent to exercise control over his daughter. 711 P.2d at 1270;
see also § 19-1-103(73)(a).
¶ 21 Later, in closing argument, the prosecutor referenced the
“forcibly seize and carry” element just once, saying only that Mr.
Pratarelli’s daughter “can’t move herself. She can’t drive herself.
Her parent does that. He carries her, he moves her from one
location to the other . . . and that’s why he is guilty . . . .” But
again, that’s nothing more than a statement that Mr. Pratarelli
carried his daughter; the prosecution never clearly identified how
Mr. Pratarelli forcibly took possession of his daughter (assuming, as
already discussed, that a custodial parent can in fact “seize” his
own child). At most, the evidence showed that Mr. Pratarelli took
physical custody of his daughter at daycare under an agreed
parenting time arrangement. That’s the only evidence of any
“seizure” we see in the record. But the prosecution never argued
Mr. Pratarelli seized his daughter when he picked her up at
daycare, and once he picked her up, Mr. Pratarelli exercised
uninterrupted legal custody over his daughter.
11 ¶ 22 Despite all this, the People argue we should affirm the first
degree kidnapping conviction. To get there, the People first urge us
to read an illegal purpose or illegal intent element into the first
degree kidnapping statute. Since the General Assembly chose not
to include such elements in the statute, neither may we. See
Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (a court may not
add words to a statute).
¶ 23 The People next assert that Mr. Pratarelli’s exercise of parental
authority “to put his daughter in the car” and drive her to Mexico
shows he used “power” and that is sufficient to prove he forcibly
seized and carried his daughter. But because Mr. Pratarelli had
physical and legal custody of his daughter, the parental relationship
isn’t sufficient to show that Mr. Pratarelli directed power against his
daughter to seize and carry her over opposition or resistance. To
the extent the People suggest he took his daughter to Mexico over
his wife’s opposition, as already explained, he didn’t need his wife’s
permission to exercise control over their daughter. See Armendariz,
711 P.2d at 1270.
¶ 24 In their final salvo, the People argue that assuming the
prosecution presented no evidence that Mr. Pratarelli “expressly
12 used force either to seize or carry” his daughter, “there was still
sufficient evidence” to support the conviction because “there was
testimony” that Mr. Pratarelli’s daughter “was restrained from
leaving her father’s car.” But we see two problems with this
argument. First, the cited testimony doesn’t say that. Rather, the
testimony sets forth Mr. Pratarelli’s explanation for driving to Texas.
That testimony is not sufficient to prove that Mr. Pratarelli used
force to seize and carry his daughter over opposition or resistance.
Second, the argument appears to hinge on whether Mr. Pratarelli’s
daughter consented to go with her father. But because Mr.
Pratarelli had legal custody of his daughter, he could consent for
her. See id. (“[C]onsent must be given by those having legal custody
of the child.”).
¶ 25 All this said, we need not speculate as to whether some
circumstance might exist in which a custodial parent could “forcibly
seize and carry” his own child within the meaning of the first degree
kidnapping statute. If such a case exists, it’s not this one.
¶ 26 In the end, we conclude insufficient evidence supported Mr.
Pratarelli’s first degree kidnapping conviction. We therefore must
vacate that conviction and sentence.
13 C. Second Degree Kidnapping
¶ 27 Anticipating this outcome, the People argue that because
second degree kidnapping is a lesser included offense of first degree
kidnapping, we should remand the case with instructions to “enter
a conviction for second-degree kidnapping.” In so arguing, the
People disregard the supreme court’s Armendariz decision, which
held that a custodial parent may not be convicted of second degree
kidnapping. See 711 P.2d at 1270.
¶ 28 For this reason, we decline the People’s request to instruct the
district court to enter a second degree kidnapping conviction in
place of the vacated first degree kidnapping conviction related to
Mr. Pratarelli’s daughter.
IV. Bill of Particulars
¶ 29 Mr. Pratarelli next argues that the district court erred by
denying his motion for a bill of particulars on the first degree
kidnapping charge. Because we vacate the first degree kidnapping
conviction, we need not consider this contention.
V. Mental Health Concerns
¶ 30 Last, Mr. Pratarelli contends that the district court impaired
his ability to investigate “mental condition evidence” and thus
14 violated his constitutional right to present a defense. More
specifically, he argues the district court erred by (1) denying his
second requested continuance to investigate a mental health
defense; (2) not ordering a mental health examination; and (3)
restricting his testimony about his memory and cognition. We
perceive no reversible error.
A. Additional Facts
¶ 31 When Mr. Pratarelli was taken into custody, law enforcement
allegedly described him as “incoherent” and sent him to a hospital.
Either during or after his hospitalization, Mr. Pratarelli learned he
needed heart surgery. To accommodate the needed surgery and
recovery, the court delayed the case.
¶ 32 Several months after the surgery, the prosecution filed its
amended information and complaint. At the preliminary hearing on
the added first degree kidnapping charge, Mr. Pratarelli’s counsel
raised concerns that the prosecution didn’t disclose a journal Mr.
Pratarelli had kept while he was in Mexico.
¶ 33 After receiving the journal, Mr. Pratarelli’s counsel moved to
continue the trial, arguing the journal “rais[ed] some issues
concerning mental-health questions and that sort of thing.” And
15 counsel explained that he was “exploring” those issues “at the
present time.” The court granted the continuance and rescheduled
the trial four months later.
¶ 34 But less than a month before the rescheduled trial, Mr.
Pratarelli again moved to continue the trial. This time, he pointed
to a recent MRI that “confirmed cerebral small vessel disease,”
which “leads to cognitive decline and decrease in executive
functioning.” He argued the MRI raised “concerns regarding [Mr.
Pratarelli’s] ability” to form the requisite culpable mental state.
After a hearing, the court denied the motion, finding that (1) the
first continuance “was based on the same information”; (2) the
court had granted that continuance to allow defense counsel “to try
to look into those particular issues”; (3) defense counsel was “aware
from very early on” that Mr. Pratarelli presented to law enforcement
as confused or “having some sort of problems”; and (4) “there is no
evidence that [Mr. Pratarelli’s] current condition was in effect at the
time of the allegations, or that it’s relevant in any way.”
¶ 35 Undeterred, Mr. Pratarelli filed an amended motion to
continue, attaching a cardiologist’s letter stating that cerebral small
vessel disease “can lead to cognitive and executive impairment” and
16 “could lead to possible interference with his reactions to stress.”
The letter offered no opinions about Mr. Pratarelli’s current mental
condition or his condition two years earlier, when the charged
events occurred. The district court once again denied the request,
finding no evidence that Mr. Pratarelli “was suffering from [a
mental] condition” when the charged events took place.
¶ 36 Three days before trial, Mr. Pratarelli tried once more, filing a
second amended motion to continue trial. This motion largely
reiterated details that he had already presented.
¶ 37 At trial, the court denied the second amended motion for the
same reasons it denied the others.
B. The Continuance
¶ 38 Mr. Pratarelli first contends the court abused its discretion by
denying his “motions for a continuance to investigate his mental
condition and determine whether to pursue a mental condition
defense.” We disagree.
¶ 39 We will not disturb a district court’s denial of a continuance in
the absence of an abuse of discretion. People v. Ahuero, 2017 CO
90, ¶ 11. A court abuses its discretion only if the denial “was
arbitrary or unreasonable and materially prejudiced the defendant.”
17 People v. Brown, 2014 CO 25, ¶¶ 19-20 (citation omitted). A
defendant must demonstrate actual prejudice arising from the
denial of a continuance. People v. Cook, 2014 COA 33, ¶ 60.
¶ 40 The record shows that defense counsel had time to investigate
a mental condition defense. First, even before the journal was
disclosed, defense counsel knew that law enforcement had reported
that Mr. Pratarelli was “incoherent” when he crossed the border,
resulting in his hospitalization. Second, after reviewing the journal,
Mr. Pratarelli’s counsel asked for a continuance specifically because
the journal “rais[ed] some issues concerning mental-health
questions,” and counsel represented that he was “exploring” those
issues at that time. And the district court granted that
continuance, giving Mr. Pratarelli’s counsel an additional four
months to investigate Mr. Pratarelli’s mental condition before the
rescheduled trial date. Third, at most, the MRI showed possible
future cognitive decline. Even armed with that information, Mr.
Pratarelli presented nothing in his second (or later) requests for
continuances about any possible cognitive issues at the time of the
charged events. Nor did he present any medical opinion that
18 further testing might reveal such evidence or that additional
investigation might result in evidence beneficial to his defense.
¶ 41 Thus, Mr. Pratarelli had the opportunity to pursue and
develop evidence about his mental state. Given this, we can’t
conclude the district court abused its discretion by denying a
second continuance.
C. The Examination
¶ 42 Mr. Pratarelli next argues the district court “should have
ordered an examination of [Mr.] Pratarelli under section 16-8-106[,
C.R.S. 2019].” We disagree.
¶ 43 When a defendant’s mental condition is offered not to show
insanity, but instead to negate a culpable mental state, “expert
testimony concerning the mental condition can be admissible.”
People v. Wilburn, 2012 CO 21, ¶ 20; see also § 16-8-107(3)(b),
C.R.S. 2019. To introduce such evidence, the defendant must
notify the court and prosecution “at the time of arraignment,”
except that “for good cause shown” the court “shall permit” the
defendant to “inform the court and prosecution of the intent to
introduce such evidence” before trial. § 16-8-107(3)(b).
19 ¶ 44 But Mr. Pratarelli never notified the court (either at the
arraignment or in any of his serial motions to continue) that he
intended to introduce “expert opinion concerning his . . . mental
condition.” Id. Instead, Mr. Pratarelli asked for additional time —
beyond the four months he had already received — to continue to
investigate his “cerebral small vessel disease,” which, he argued,
“raise[d] concerns” about his “ability to form [the requisite] mental
state.”
¶ 45 And we are unaware of any authority — and Mr. Pratarelli
points us to none — requiring a court-ordered mental examination
to allow a defendant more time to investigate a mental condition
defense. Thus, the district court did not err by not ordering such
an examination.
D. Mr. Pratarelli’s Testimony
¶ 46 Without objection, the court admitted the journal into
evidence. During direct examination, Mr. Pratarelli’s counsel asked
Mr. Pratarelli why he kept the journal. Mr. Pratarelli responded
that he kept it because he had “been having a number of cognitive
and memory problems.” The court sustained the prosecutor’s
20 objection. Mr. Pratarelli contends the district court erred by
“restricting this testimony.”
¶ 47 But even if we assume the court erred, the jury had the
journal itself. And the journal repeatedly documented Mr.
Pratarelli’s perceived concerns with his memory and cognition. For
example, with respect to his memory of the charged events, the
journal included the following entries: “I have no recollection,” “I
don’t remember,” “I can’t remember,” “why don’t I remember,” “what
happened to my short term memory,” “so why can’t I remember,”
“no recollection again,” and “why all the blank memories.”
¶ 48 With respect to his cognition, Mr. Pratarelli journaled: “I don’t
even know which thoughts are safe [and] which are delusions,
intrusions, or fragments of grounded thinking. Why can’t I tell the
difference anymore?” And he asked, “why couldn’t I tell right from
wrong Monday night,” and “where was my mind and why can’t I get
it back?”
¶ 49 Thus, the jury knew Mr. Pratarelli’s concerns; indeed, it had
them documented in his own words. Mr. Pratarelli doesn’t say why
his cumulative testimony repeating these concerns would have
made any difference. Thus, to the extent the court erred by
21 restricting the testimony, the error did not substantially influence
the verdict or affect the fairness of the trial. See Hagos v. People,
2012 CO 63, ¶ 12.
VI. Conclusion
¶ 50 We vacate Mr. Pratarelli’s conviction and sentence for first
degree kidnapping and remand the case to the district court to
enter a judgment of acquittal on that count. We affirm the
judgment of conviction for second degree kidnapping (relating to Mr.
Pratarelli’s wife), use of a stun gun, and third degree assault.
JUDGE ROMÁN and JUDGE CASEBOLT concur.