People v. Relaford

COLORADO COURT OF APPEALS 2016COA99

Court of Appeals No. 15CA0124

Mesa County District Court No. 11CR1108

Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David A. Relaford,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division V

Opinion by JUDGE BERGER

Román and Plank*, JJ., concur

Announced June 30, 2016

Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough,

Deputy State Public Defender, Denver, 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. 2015.

¶1 A jury convicted defendant, David A. Relaford, of twenty-seven

offenses related to sexual assaults against two child victims, and

the trial court sentenced him to an aggregate indeterminate term of

204 years to life under the Colorado Sex Offender Lifetime

Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S.

2015. Relaford appeals the judgment of conviction and the

sentence imposed.

¶2 Relaford argues that the trial court reversibly erred in

admitting (1) expert testimony about the credibility of child victims

of sexual assault and (2) numerous sex toys and pornography found

at his home. He also argues that SOLSA is unconstitutional. We

address and reject these contentions and affirm.

I. Facts and Procedural History

¶3 In the summer of 2011, seven-year-old O.S. and his adoptive

mother lived with Relaford at his house. Several weeks after O.S.

and his mother moved out, O.S. told his mother that Relaford had

sexually assaulted him. His mother called the police, and a police

detective conducted a forensic interview with O.S.

¶4 During the interview, O.S. described multiple incidents in

which Relaford sexually assaulted him. O.S. said that Relaford

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sometimes used sex toys during the assaults and they had watched

a pornographic movie and looked at pornographic magazines

together. O.S. also told the detective that he had witnessed

Relaford sexually assault another child, M.D., an eight-year-old girl

who lived nearby and was friends with O.S.

¶5 The detective conducted a forensic interview with M.D. M.D.

initially denied that anything had happened with Relaford. About

twenty-five minutes into the interview, the detective began to ask

more focused questions about M.D.’s relationship and experiences

with O.S. and Relaford. The detective told M.D. that O.S. said that

he had seen something happen to M.D. when M.D. was at his

house. About fifteen minutes later, the detective told M.D. that she

(the detective) knew what had happened but that “it need[ed] to

come from M.D.” M.D. responded, “Dave [Relaford] has actually

done it to me.”

¶6 Like O.S., M.D. detailed several instances of sexual assault by

Relaford, including at least one instance in which he used a sex toy.

M.D. also described watching pornographic movies with Relaford

and looking at pornographic magazines at his house.

2

¶7 The People charged Relaford with five incidents of sexual

assault against O.S. and six incidents against M.D., differentiated

by the location where each incident occurred. For each incident,

Relaford was charged with one count of sexual assault on a child

and one count of sexual assault on a child by one in a position of

trust. He was also charged with four counts of committing sexual

assault on a child as part of a pattern of abuse and one count of

second degree kidnapping (based on M.D.’s statement that during

one assault, Relaford took her from the living room of his home into

his bedroom).

¶8 Both victims testified at trial, and video recordings of their

forensic interviews were admitted and played for the jury. The

interviewing detective also testified regarding the interviews and the

investigation of Relaford, including the search of his home (under a

warrant) and his police interview.

¶9 The detective testified that the police had found numerous sex

toys and pornographic videos and magazines at Relaford’s house

and property. Many of the places where the sex toys and

pornography were found were consistent with the victims’

descriptions of those locations. Both victims also said that Relaford

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used Vaseline during the assaults, and O.S. testified that Relaford

got the Vaseline from the bathroom. Vaseline was found in

Relaford’s bathroom. Additionally, O.S.’s description of several of

the sex toys Relaford used during the assaults matched the

appearance of some of the toys found. A sex toy that M.D. gave to

her mother after her forensic interview was also admitted into

evidence. Her mother testified that M.D. had told her that Relaford

had given M.D. the toy with instructions to use it on herself.

¶ 10 The sex toys were submitted for DNA testing. The

prosecution’s DNA expert testified that DNA samples from one of

the sex toys O.S. had identified matched O.S.’s and Relaford’s DNA.

DNA samples from the sex toy M.D. said Relaford had given her

matched M.D.’s DNA.

¶ 11 The prosecution also presented testimony from the nurses who

had examined the victims. The nurse who examined O.S. testified

that the findings she made during her examination of his anus were

consistent with the disclosures he had made to her about the

sexual assaults by Relaford. The nurse who examined M.D.

testified that she did not observe any injuries attributable to the

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disclosures M.D. had made to her about the sexual assaults, but

that did not mean M.D. had not been sexually assaulted.

¶ 12 Another part of the prosecution’s case-in-chief was evidence of

statements Relaford made during the investigation. The detective

testified that during her interview of Relaford, he had initially told

her that he had been alone with both children, that the children

had never been in his bedroom, and that his pornography was

locked up where the children could not access it. However, after

the detective told Relaford that items had been collected for DNA

tests, he said the children could have gotten into his bedroom and

“snooped,” and that he had never been alone with the children.

¶ 13 The detective also testified about a letter Relaford had written

to his girlfriend after his arrest, which she had given to the police.

In the letter, Relaford said that he had once masturbated in their

tent when he was alone, and then he had “cleaned up” with soap

and water. He said that when he went camping with O.S., O.S.

vomited in almost the same spot. The prosecution argued that

these statements were significant because O.S. alleged that Relaford

had sexually assaulted him when they were camping, and before

Relaford wrote the letter, the detective had told him essentially that

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if the police found his DNA and the kids’ DNA mixed together, it

would be very bad for him.

¶ 14 Relaford’s defense at trial was primarily that the victims’

testimony was not believable. Among other things, defense counsel

emphasized that (1) O.S. and M.D. testified to certain details that

they had omitted in their forensic interviews; (2) M.D. initially

denied that Relaford had sexually assaulted her; and (3) O.S.’s

description in his interview regarding some of Relaford’s physical

characteristics was inaccurate.

¶ 15 The jury convicted Relaford on all charges. The trial court

sentenced Relaford to twenty-four years’ imprisonment for

kidnapping, to be served consecutively to fifteen consecutive

sentences of twelve years to life that were concurrent to eleven

sentences of six years to life for the sexual assault convictions.

II. Expert Testimony

A. Additional Facts

¶ 16 During trial, the prosecution presented testimony from a

marriage and family therapist who was qualified as an expert in

“child sexual assault and abuse, specifically patterns of disclosure,

outcry statements, Victim-Offender relationship dynamics, the

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process of memory, and suggestibility and fabrications.” Defense

counsel did not object to the therapist’s qualifications as an expert

in these areas. The therapist testified that she did not review any of

the police reports in the case or watch the forensic interviews, but

the prosecutor had provided her with some basic information about

the ages of the children, the relationships of the parties, and where

the events occurred.

¶ 17 The therapist then described the process of memory in general

and in children who have been sexually assaulted. She testified

that with multiple incidents of sexual assault occurring in similar

locations, children might mix up the details of each episode, and

inconsistent statements about what happened when were not

unusual. Additionally, she testified that younger children were

much more likely to omit an accurate detail about an event in one

interview that they included in a later interview than they were to

agree with suggestive or coercive questioning about something that

did not occur. Defense counsel did not object to any of this

testimony, and Relaford does not challenge it on appeal.

¶ 18 The prosecutor next asked the therapist a series of questions

about “fabrication.” The therapist testified that children do lie. She

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said that preschool-age children lie when they are playing games

like hide-and-go-seek, and older children lie to avoid the

consequences of their actions and the blame, disappointment, or

disapproval of adults. However, she testified that research showed

that it is “pretty unusual, even kind of rare” for children to lie about

an adult. She testified that the few times they do so is because they

have mental health issues and (or alternatively) they are telling lies

in “the school environment” about teachers, family members, or

daycare providers.

¶ 19 After this testimony, the prosecutor asked the therapist about

her experiences with children fabricating allegations of sexual

assault. She testified that there were two areas in which

practitioners had encountered such fabrication. One was with

“system-savvy adolescents” who have “been in lots of different sorts

of institutional settings” and might fabricate an allegation against a

caregiver to force a placement change or to “get even.” The other

was in “very, very disturbed, high-conflict custody cases” in which

one parent convinced the child to say the other parent was sexually

abusing him or her. The therapist added that she had also

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encountered situations in which adults misunderstood an innocent

statement by a preschooler as an allegation of sexual assault.

¶ 20 The prosecutor then asked the therapist, “Okay, what about,

of course, in our situation we’re talking about a seven- and eight-

year-old, a little bit beyond preschool? So, I mean, have you ever

experienced a situation where somebody in that age, seven or eight

— ,” at which point defense counsel objected. At the bench, defense

counsel explained that the prosecutor was trying to impermissibly

“get [the therapist] to say that these kids were not lying.” The trial

court sustained the objection but told the prosecutor he could ask

another question. The following colloquy between the prosecutor

and the therapist then occurred:

Q. [Prosecutor:] Okay, in your personal

experience and practice, have you ever come

across a false allegation of sexual abuse for —

in any other circumstance, other than what

you’ve already mentioned: severe mental

health, system-savvy adolescent regarding

placement, or high-conflict custody?

A. [Therapist:] The — those are the only ones

that I can think of that I have professionally

seen in 30 years, or in the people I’ve

supervised.

Defense counsel did not object to this testimony.

9

¶ 21 The therapist proceeded to testify about other topics, such as

the dynamics between sexual abuse victims and perpetrators,

including why a child might deny that abuse occurred or delay in

disclosing a sexual assault; the typical demeanor of children during

forensic interviews and when a child might make a “fantastic

statement” about something that cannot be true; and the

“grooming” of children for sexual assault, including the use of

pornography and sex toys. No objections were lodged to this

testimony, and none of it is challenged on appeal.

¶ 22 At the close of evidence, the trial court gave the jury a

standard credibility of witnesses instruction and instructed the jury

that it was not bound by the testimony of experts and expert

testimony was to be weighed as that of any other witness.

¶ 23 During rebuttal closing argument, the prosecutor relied on the

therapist’s testimony on fabrication to argue that none of the

circumstances in which the therapist testified children lie about

sexual assault were present here, thus implying that the victims

were telling the truth.

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B. Law and Application

¶ 24 Relaford argues that the therapist’s testimony regarding the

circumstances in which a child might fabricate claims of sexual

assault and her statement that she had never encountered sexual

assault fabrications in any other circumstances constituted

impermissible opinion testimony that the victims in this case were

not lying. We agree, but we conclude that the admission of this

evidence did not constitute plain error.

1. Admissibility of the Testimony

¶ 25 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). A trial

court abuses its discretion if its ruling was manifestly arbitrary,

unreasonable, or unfair, id., or if it misconstrued or misapplied the

law, People v. Glover, 2015 COA 16, ¶ 10.

¶ 26 CRE 402 provides that relevant evidence is generally

admissible. However, specific evidentiary rules limit the

admissibility of certain types of evidence. CRE 404(a) prohibits

“[e]vidence of a person’s character or a trait of his character” if

admitted “for the purpose of proving that he acted in conformity

therewith on a particular occasion.” CRE 608(a) provides a limited

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exception to the general rule of CRE 404(a) and allows a party,

under the prescribed conditions, to present opinion or reputation

evidence of a witness’s character for truthfulness. People v. Serra,

2015 COA 130, ¶ 62.

¶ 27 “CRE 608 evidence is not permitted to establish whether a

witness testified truthfully on the witness stand or whether he or

she was truthful on a particular occasion.” Liggett v. People, 135

P.3d 725, 731 (Colo. 2006). “[E]xperts may not offer their direct

opinion on a child victim’s truthfulness or their opinion on whether

children tend to fabricate sexual abuse allegations.” People v.

Wittrein, 221 P.3d 1076, 1081 (Colo. 2009). The supreme court has

held that expert testimony that children tend not to fabricate stories

of sexual abuse is “tantamount to [an expert] testifying that [a] child

victim was telling the truth about her allegations.” Id. at 1082

(citing People v. Snook, 745 P.2d 647, 648 (Colo. 1987)).1

1 In People v. Snook, 745 P.2d 647, 648-49 (Colo. 1987), the

supreme court concluded that the expert’s testimony that children

tend not to fabricate stories of sexual abuse was improper under

CRE 608(a) also because the testimony “necessarily refer[ed] to [the

victim’s] character for truthfulness,” and the victim’s character for

truthfulness had not been attacked at the time the expert opinion

was offered. Although the supreme court did not explicitly state

12

¶ 28 On the other hand, expert testimony is admissible under CRE

702 “if the expert’s specialized knowledge will assist the jury in

understanding the evidence or in determining a fact in issue.”

People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007). Along these

lines, “[a]n expert may testify as to the typical demeanor and

behavioral traits displayed by a sexually abused child.” Id. This

type of testimony is generally admissible because it assists the jury

in understanding the victim’s behavior after the incident — why the

victim acted the way he or she did. See, e.g., People v. Fasy, 829

P.2d 1314, 1317-18 (Colo. 1992); People v. Morrison, 985 P.2d 1, 3-

6 (Colo. App. 1999), aff’d, 19 P.3d 668 (Colo. 2000); People v. Koon,

724 P.2d 1367, 1369-70 (Colo. App. 1986). “Background data

providing a relevant insight into the puzzling aspects of the child’s

conduct and demeanor which the jury could not otherwise bring to

its evaluation . . . is helpful and appropriate in cases of sexual

abuse of children . . . .” People v. Whitman, 205 P.3d 371, 383

(Colo. App. 2007) (citation omitted).

that the testimony was improper both for this reason and because

the expert opinion referred to the victim’s truthfulness on a specific

occasion, a careful reading of the decision shows that this is the

case.

13

¶ 29 For example, in Koon, 724 P.2d at 1369, a division of this

court held admissible expert “testimony by [a] police psychologist

about behavioral patterns of child incest victims, and the

supporting testimony by [a] social worker that the [child victim] fit

these patterns.” The division explained that the testimony was

admissible to show that the reaction of the victim was “uniquely

similar to the reaction of most victims of familial child abuse.” Id.

at 1369-70.

¶ 30 While such “testimony may incidentally give rise to an

inference that a victim is or is not telling the truth about the

specific incident,” “this fact alone is insufficient to deny admission

of the evidence, because expert testimony generally tends to bolster

or attack the credibility of another witness.” Id. at 1370; see also

Morrison, 985 P.2d at 5-6 (Although this type of testimony

“necessarily carrie[s] with it the implication that the child’s report of

sexual abuse was true,” it is proper expert testimony because it

“aid[s] the jury in understanding the typicality of reactions by

[children] who have been subjected to sexual abuse that might,

under other circumstances, be considered bizarre.”); People v.

14

Aldrich, 849 P.2d 821, 829 (Colo. App. 1992); People v. Deninger,

772 P.2d 674, 676 (Colo. App. 1989).

¶ 31 However, Koon and similar cases “do not stand for the

proposition that testimony of general characteristics of any type is

admissible to attack or support a witness’s credibility.” People v.

Cernazanu, 2015 COA 122, ¶ 20. Rather, they “deal with the

admissibility of general characteristics evidence which (1) relates to

an issue apart from credibility and (2) only incidentally tends to

corroborate a witness’s testimony.” Id.

¶ 32 The therapist’s testimony here, that she had not encountered

any circumstances in her thirty-year career in which children had

lied about sexual abuse other than those she had described, did not

relate to an issue apart from credibility. The testimony was not an

explanation of the typical demeanor and behavioral traits displayed

by a sexually abused child for the purpose of allowing the jury to

compare the victims’ behavior with the typical behavior of child

sexual abuse victims and aid it in understanding the victims’

actions. Cf. Morrison, 985 P.2d at 6 (“[S]ubstantially all of th[e]

expert’s testimony was properly received under CRE 702 to aid the

15

jury in understanding the typicality of reactions by young boys who

have been subjected to sexual abuse.”).

¶ 33 The other testimony by the therapist, describing in general

terms the process of memory, common reactions of child victims of

sexual abuse, and the typical relationship between victims and

perpetrators, served this purpose. That testimony could have

assisted the jury in understanding, for example, O.S.’s delay in

disclosing the sexual assaults to his mother; the inconsistencies

between each victim’s statements, including why the victim

mentioned certain details in one statement that he or she had

omitted in a prior statement; M.D.’s initial denial that Relaford had

sexually assaulted her; and O.S.’s inaccurate description of

Relaford’s physical appearance. Thus, the therapist’s testimony

regarding the general behavior of child sexual assault victims could

have aided the jurors in deciding the case by providing them a

context in which to understand specific evidence, but it did not tell

them what result to reach.

¶ 34 In contrast, the therapist’s testimony about children

fabricating sexual assault allegations did not serve any purpose

other than to attempt to influence the jurors’ credibility

16

determinations. See id.; see also Snook, 745 P.2d at 649 (“[T]he

jury’s only conceivable use of [the] testimony would be as support

for the [victims’] truthful character[s].”). Because the therapist

testified that she had not encountered any circumstances other

than those she had described in which children lied about being

sexually assaulted, and those circumstances were not present in

this case, the testimony necessarily constituted an impermissible

expert opinion that the victims were “almost certainly telling the

truth.” Snook, 745 P.2d at 649.

¶ 35 Accordingly, this evidence should not have been presented to

the jury.

2. Plain Error

¶ 36 Although defense counsel objected to one question that the

prosecutor asked the therapist and the objection was sustained,

defense counsel did not object to the testimony that we have

concluded was inadmissible. We thus review for plain error. See

Wittrein, 221 P.3d at 1082.

¶ 37 “To constitute plain error, the trial court’s error must be

obvious and substantial and so undermine the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

17

of the judgment of conviction.” People v. Weinreich, 119 P.3d 1073,

1078 (Colo. 2005).

¶ 38 An error may be obvious “if the issue has been decided by a

division of this court or the Colorado Supreme Court.” People v.

Ujaama, 2012 COA 36, ¶ 42.

¶ 39 For two reasons, the admission of the therapist’s testimony on

fabrication was not plain error.

¶ 40 First, the error was not “obvious.” Miller, 113 P.3d at 750.

The therapist did not directly testify that the child victims were

telling the truth, which would have been obviously impermissible.

Conversely, under the existing case law, it is not always clear (or

even consistent among cases) where to draw the line between expert

testimony on the typical characteristics of sexual assault victims

that is permissible and that which is impermissible because it is

tantamount to an opinion that the victim was telling the truth.

¶ 41 Cernazanu, ¶ 20, explicitly states the rule that general

characteristics evidence is permissible when the evidence “relates to

an issue apart from credibility and . . . [it] only incidentally tends to

corroborate a witness’s testimony.” But at issue in Cernazanu,

¶ 21, was testimony regarding “‘characteristics’ peculiar to [the

18

victim that] were directly indicative of [her] credibility,” not the

characteristics “of a class of victims.” Cernazanu’s holding thus did

not concern when expert testimony on the general characteristics of

sexual assault victims is inadmissible because it constitutes an

opinion that the victims in the case had been truthful.

¶ 42 Accordingly, the issue here “ha[d] not yet been decided by a

division of this court or the Colorado Supreme Court,” and so the

error was not obvious. People v. Sandoval-Candelaria, 328 P.3d

193, 201 (Colo. App. 2011), rev’d on other grounds, 2014 CO 21; see

also People v. O’Connell, 134 P.3d 460, 464 (Colo. App. 2005) (“[We]

cannot correct an error pursuant to [plain error review] unless the

error is clear under current law.”) (citation omitted). However, the

inadmissibility of expert testimony on the general characteristics of

child sexual assault victims that does not relate to an issue other

than credibility is an issue that has now been decided by a division

of this court.

¶ 43 The second reason the admission of the expert’s testimony in

this case was not plain error is that the record does not “reveal[] a

reasonable possibility that the error contributed to [Relaford’s]

conviction[s].” Weinreich, 119 P.3d at 1078. A reviewing court

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“must evaluate [an error] in light of the entire record below” to

determine its effect on the verdict and the trial. People v. Eppens,

979 P.2d 14, 18 (Colo. 1999). Whether the erroneous admission of

testimony that a child victim was credible is plain error “turns to a

considerable extent on both the strength and breadth of the

properly admitted evidence, the extent and significance of the

improper evidence or testimony, and the reliance, if any, of the

prosecution in closing arguments on the improper evidence.”

People v. Cook, 197 P.3d 269, 276 (Colo. App. 2008).

¶ 44 Cases in which this type of error was held reversible include

those in which “there was no physical evidence of, or third-party

eyewitness testimony to, the alleged sexual assaults.” Koon, 724

P.2d at 1370-71; see also Snook, 745 P.2d at 649; Cernazanu, ¶ 27;

Cook, 197 P.3d at 276.

¶ 45 Conversely, an important factor that “mitigate[s] the potential

power” of an expert’s improper opinion of a child victim’s veracity is

that other evidence corroborates the child victim’s allegations.

Eppens, 979 P.2d at 18-19. Indeed, “the major factor [in

determining whether an error was substantial] is the quantum and

20

quality of other and independent corroborating evidence of guilt.”

Cook, 197 P.3d at 277.

¶ 46 For instance, in People v. Gaffney, 769 P.2d 1081, 1087-89

(Colo. 1989), the supreme court held harmless the admission of

testimony by a doctor that the child victim’s “history,” which

included his statement that the defendant sexually assaulted him,

was “very believable.” The supreme court explained that “of

significance is the fact that [the victim’s] statement to [the doctor]

about the sexual assault was not without corroboration,” which

included the victim’s testimony, the doctor’s testimony that the

results of the physical examination of the victim were consistent

with the victim’s description of the sexual assault, and the victim’s

mother’s and the investigating police officer’s testimony about the

victim’s statements to them. Id. at 1089.

¶ 47 Similarly, in People v. Gillispie, 767 P.2d 778, 780 (Colo. App.

1988), the admission of testimony by an expert that she believed

the child victim’s statement that she had been sexually abused was

held harmless by a division of this court in part because “[t]he child

victim described the assaults to four different people, each

21

description was consistent with the others, and medical evidence

corroborated her detailed explanations.”

¶ 48 Here, although the prosecutor relied on the therapist’s

improper fabrication testimony during rebuttal closing, most of the

prosecutor’s initial and rebuttal closing arguments focused on other

evidence and the other parts of the therapist’s testimony that were

“properly received under CRE 702 to aid the jury in understanding

the typicality of reactions by [children] who have been subjected to

sexual abuse.” Morrison, 985 P.2d at 4-6. The victims also both

provided detailed testimony about the assaults and were cross-

examined by defense counsel, thus “providing the jury with a full

opportunity to judge [their] credibility in light of [their] demeanor.”

Eppens, 979 P.2d at 18-19. And the “jury was properly instructed

as to how to evaluate expert testimony and . . . the general

credibility . . . of witnesses.” Tevlin v. People, 715 P.2d 338, 339-40,

342 (Colo. 1986).

¶ 49 While the credibility of O.S. and M.D. was undeniably a

central focus at trial, there was substantial evidence, perhaps even

overwhelming evidence, corroborating the victims’ statements, such

as the nurse’s testimony that her physical examination of O.S.

22

showed injury consistent with sexual assault, the DNA evidence

from the sex toys, and the details of the assaults that the victims

provided that matched the evidence and the location of the evidence

found in Relaford’s home.

¶ 50 Moreover, the victims had very similar accounts of how and

where Relaford sexually assaulted them, and O.S. testified that he

had seen Relaford sexually assault M.D. The victims’ testimony,

their forensic interview statements, and the testimony of other

people to whom they had described the assaults — the detective,

their mothers, and the nurses — showed that each victim’s account

was mostly the same in each statement. And the statements of

Relaford that were admitted tended to indicate consciousness of

guilt.

¶ 51 Under all of these circumstances, we conclude that the

admission of the therapist’s testimony on fabrication did not “so

undermine[] the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

Wittrein, 221 P.3d at 1082 (citation omitted). Thus, there was no

plain error, and reversal is not required.

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III. Sex Toys and Pornography

A. Additional Facts

¶ 52 Over defense counsel’s objection, the trial court granted the

prosecution’s pretrial motion to admit as res gestae all of the sex

toys and pornographic videos and magazines found during the

search of Relaford’s home.

¶ 53 At trial, numerous sex toys and accessories, and pictures of

the items, were admitted into evidence, as was the detective’s

testimony about finding each item during the search of Relaford’s

home. The items admitted included at least three (and maybe four,

the record is unclear) sex toys that O.S. identified in his testimony

as those that Relaford had used when he sexually assaulted him.

The sex toy that M.D. said Relaford had used on her and given to

her was also admitted. There were other sex toys and accessories

admitted, however, that were not identified or discussed by either

victim.

¶ 54 Also admitted were eight pornographic VHS videos, thirty-

three pornographic DVD videos, twenty-four pornographic

magazines, and photographs of the items. The detective’s testimony

about these items included that although M.D. and O.S. had told

24

her that the videos they saw with Relaford had adults, teens, and

children in them, the police did not find any illegal child

pornography. The detective testified, however, that many of the

videos found included “school-age dressed younger small-framed

individuals that looked younger” (and one video was entitled,

“Barely Legal Boot Camp Teens in Training”). The detective further

testified that one of the videos matched a description M.D. had

provided about watching a pornographic video that looked

“cartoonish.”

¶ 55 During closing argument, the prosecutor discussed the sex

toys that the victims had identified and the results of the DNA

testing and argued that this evidence corroborated the victims’

testimony. The prosecutor also emphasized that the sex toys and

pornography were found in locations consistent with the victims’

descriptions.

¶ 56 In his closing argument, defense counsel essentially argued

that the prosecution had introduced all of the sex toys and

pornography to try to convince the jury that Relaford was a bad

person and a “sexual molester.” In rebuttal closing argument, the

prosecutor expressly disclaimed such a purpose. The prosecutor

25

stated that it would be inappropriate for the jury to find Relaford

guilty of sexual assault just because he had sex toys and

pornography; rather, the prosecution had introduced the evidence

because it corroborated the victims’ disclosures and to establish the

thoroughness of the police investigation.

B. Law and Application

¶ 57 Relaford concedes that the admission of evidence regarding

the sex toys the children identified was proper, but he argues that

the trial court erred in admitting evidence of the other sex toys and

the pornography because it was irrelevant and constituted

impermissible bad acts or character evidence. We agree that some

of this evidence probably should not have been admitted, but we

conclude that any error in this respect was harmless.

¶ 58 We review the trial court’s decision to admit the evidence for

an abuse of discretion. See People v. Perry, 68 P.3d 472, 475 (Colo.

App. 2002). Because Relaford objected to the admission of the

evidence, we review for harmless error. See Yusem v. People, 210

P.3d 458, 463 (Colo. 2009).

¶ 59 “Relevancy is a threshold standard which all evidentiary

offerings must meet.” Vialpando v. People, 727 P.2d 1090, 1094

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(Colo. 1986). Evidence that is irrelevant — evidence that does not

have any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence — is

inadmissible at trial. CRE 401, 402. However, even relevant

evidence may be excluded under CRE 403 “if its probative value is

substantially outweighed by the danger of unfair prejudice.”

¶ 60 Evidence may also be excluded under CRE 404(b), which

prohibits the admission of “other crimes, wrongs, or acts . . . to

prove the character of a person in order to show that he acted in

conformity therewith.” If evidence of other acts is offered only to

show a defendant’s bad character and that he “acted in conformity

therewith” (often described as propensity evidence), the evidence

will always be inadmissible. Masters v. People, 58 P.3d 979, 995

(Colo. 2002).

¶ 61 CRE 404(b) generally governs evidence of a defendant’s other

acts that are extrinsic to the events charged. People v. Gee, 2015

COA 151, ¶ 27. Res gestae evidence, on the other hand, is

“[e]vidence of other offenses or acts that is not extrinsic to the

offense charged, but rather, is part of the criminal episode or

27

transaction with which the defendant is charged.” People v.

Quintana, 882 P.2d 1366, 1373 (Colo. 1994). Thus, while “CRE

404(b) evidence is independent from the charged offense, res gestae

evidence is linked to the offense.” Id. at 1373 n.12. Res gestae

evidence is admissible so long as it is relevant and its probative

value is not substantially outweighed by the danger of unfair

prejudice. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.

1990).

¶ 62 The sex toys identified by the victims were plainly relevant and

admissible as direct evidence that Relaford had committed the

crimes charged. Similarly, because pornographic magazines and

videos were described by the victims and were found where the

victims said that they had seen them, at least some of the

pornography was properly admitted to corroborate the victims’

statements. See Aldrich, 849 P.2d at 829 (concluding that the trial

court did not abuse its discretion in admitting pornographic

magazines found in the defendant’s home under very similar

circumstances).

¶ 63 Because this evidence was directly relevant, we do not need to

consider the trial court’s conclusion that it was admissible as res

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gestae. We may affirm a trial court’s ruling on grounds different

from those upon which it relied, as long as they are supported by

the record. People v. Chase, 2013 COA 27, ¶ 17. “Res gestae is a

theory of relevance which recognizes that certain evidence is

relevant because of its unique relationship to the charged crime,”

and thus, “where . . . evidence is admissible under general rules of

relevancy,” there is “no need to consider an alternative theory of

relevance, such as res gestae.” People v. Greenlee, 200 P.3d 363,

368 (Colo. 2009); see also Gee, ¶ 34.

¶ 64 Similarly, evidence of the sex toys described in the victims’

statements and at least some of the pornography was not prohibited

by CRE 404(b) because it did not “involve[] a separate and distinct

episode wholly independent from the offense charged,” Quintana,

882 P.2d at 1372, and its relevance did “not depend on an

impermissible inference about [Relaford’s] character,” Greenlee, 200

P.3d at 368; see also People v. Munoz, 240 P.3d 311, 320-21 (Colo.

App. 2009).

¶ 65 Nevertheless, it is difficult for us to discern the relevance of the

evidence of the sex toys and accessories not identified by the

victims or not found in a location they described. Likewise,

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although some of the pornography was admissible to corroborate

the victims’ statements, not every pornographic video and magazine

found was necessarily relevant for this purpose. And even if all the

pornography was somehow relevant, the “major function [of CRE

403] is . . . excluding matters of scant or cumulative probative force,

dragged in by the heels for the sake of its prejudicial effect.”

Masters, 58 P.3d at 1001 (citation omitted).

¶ 66 However, even if we were to conclude that some of the sex toys

and pornography were irrelevant or their admission was prohibited

by CRE 403 or CRE 404(b), we would not reverse on this basis.

“Even when a trial court may have abused its discretion in

admitting certain evidence, reversal is not required if the error was

harmless . . . .” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006).

“If a reviewing court can say with fair assurance that, in light of the

entire record of the trial, the error did not substantially influence

the verdict or impair the fairness of the trial, the error may properly

be deemed harmless.” People v. Stewart, 55 P.3d 107, 124 (Colo.

2002) (citation omitted). Thus, a defendant is only “entitled to

reversal if there is ‘a reasonable probability that the error

30

contributed to the defendant’s conviction.’” Yusem, 210 P.3d at 469

(citation omitted).

¶ 67 There was no such reasonable probability here, especially

considering that some of the sex toys and pornography were

properly admitted, and the prosecutor did not argue — and in fact

explicitly disclaimed — that the jury should use the sex toys and

pornography as propensity evidence. Moreoever, as discussed

above in Part II of the opinion, the prosecution presented a

substantial, and maybe overwhelming, amount of other evidence

that showed Relaford’s guilt. Cf. Summitt, 132 P.3d at 327 (holding

that if properly admitted evidence overwhelmingly shows guilt, there

is no reasonable probability that an error contributed to the

conviction).

¶ 68 Considering the entire record of the trial and that the jury

properly heard and viewed evidence of some of the sex toys and

pornography, we can say with fair assurance that evidence of the

other sex toys and pornography did not substantially influence the

verdict or affect the fairness of the trial. See Masters, 58 P.3d at

1002-03.

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¶ 69 Accordingly, even if the admission of evidence of certain sex

toys and some of the pornography found at Relaford’s home was

error, reversal is not required.

IV. SOLSA

¶ 70 Relaford argues that SOLSA, § 18-1.3-1004, C.R.S. 2015, is

facially unconstitutional.2 He contends that SOLSA violates an

offender’s procedural and substantive due process and equal

protection rights, the prohibition against cruel and unusual

punishment, and the separation of powers doctrine.

¶ 71 Relaford did not raise these constitutional challenges at trial,

and we thus could decline to review them. See People v. DeWitt,

275 P.3d 728, 730 (Colo. App. 2011). However, even if we were to

exercise our discretion to review Relaford’s constitutional claims, we

would conclude that he is not entitled to relief.

¶ 72 As Relaford concedes, several divisions of this court have

previously considered challenges to the constitutionality of SOLSA,

2 Relaford also asserts that SOLSA is unconstitutional as applied.

However, this assertion is not supported by any analysis or

supporting authority. We do not consider bare or conclusory

assertions presented without argument or development. See People

v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011).

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and all have concluded that it is constitutional. See People v.

Collins, 250 P.3d 668, 679 (Colo. App. 2010) (listing cases).

Relaford’s arguments are identical to those considered and rejected

in those cases. See, e.g., People v. Dash, 104 P.3d 286, 290-93

(Colo. App. 2004); People v. Oglethorpe, 87 P.3d 129, 133-36 (Colo.

App. 2003); People v. Strean, 74 P.3d 387, 393-95 (Colo. App.

2002).

¶ 73 Relaford has not provided any compelling reason for us to

reconsider or depart from those decisions, and we reject his

contentions for the reasons stated in those cases. See People v.

Villa, 240 P.3d 343, 359 (Colo. App. 2009).

V. Conclusion

¶ 74 The judgment and sentence are affirmed.

JUDGE ROMÁN and JUDGE PLANK concur.

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