Petition for Writ of Certiorari — Joshua Dwayne Carrier, Petitioner v. Colorado

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UNITED STATES SUPREME COURT

JOSHUA CARRIER

-V-

STATE OF COLORADO

APPENDIX . TO BRIEF

APPENDIX

Colorado Court of Appeals Decision

Portion of Transcript by Det. Romine

Search Warrant

• 4.

Colorado Supreme. Court Decision

Mr. Carrier's Motion for Reconsideration, and Enlargement of

time.

APPENDIX 1

13CA0645 Peo v Carrier 06-21-2018

COLORADO COURT OF APPEALS

Court of Appeals No. 13CA0645

El Paso County District Court No. 11CR1695

Honorable David A. Gilbert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

Joshua Dwayne Carrier,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE HARRIS

J. Jones and Ashby, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced June 21, 2018

Cynthia H. Coffman, Attorney General, Katherine Gillespie, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton,

Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Defendant, Joshua Dwayne Carrier, a former middle school

1 1

resource officer and wrestling coach, was convicted by a jury of

more than 200 counts of sexual assault on a child, unlawful sexual

contact, sexual exploitation, and enticement.

At trial, he defended against the charges on a theory that he

II 2

touched the victims, mostly members of the wrestling team* while

conducting legitimate pre-match physical examinations.

113

On appeal, he raises a host of issues, contending that the

court erred in denying his motion to suppress evidence, admitting

expert and lay opinion testimony and evidence of prior bad acts,

allowing prosecutorial misconduct, failing to instruct the jury on

prior acquittals, and giving an incorrect instruction on the unlawful

sexual contact offense. He also says the evidence was insufficient

to support certain of his convictions for sexual exploitation of a

child.

We review nearly all of his contentions under a plain error

standard of review and, discerning no reversible error, we affirm.

Factual and Procedural Background

Carrier was a police officer with the Colorado Springs Police

Department (CSPD), assigned to a middle school as its school

resource officer. When that position was eliminated, Carrier

continued his association with the school as a volunteer wrestling

coach

He was arrested after the police, acting on a tip from a federal

law enforcement agency, discovered child pornography during a

search of his home. After receiving news of Carrier’s arrest, parents

from the middle school contacted the police, expressing concerns

about Carrier’s examinations of their children. As a result of the

ensuing investigation, twenty-two students alleged that Carrier had

touched their genitals, mostly during physical examinations, or

“skin checks,” purportedly conducted in connection with wrestling

competition requirements. The students’ allegations were

corroborated by secret videos Carrier had made of the skin checks,

Carrier ultimately faced over 200 charges alleging sexual

assault on a child, unlawful sexual contact, sexual exploitation of a

child, and enticement.

In the first trial, the jury found Carrier guilty of only twenty

counts, all of them for sexual exploitation of a child, based on his

possession of child pornography. The jury acquitted Carrier of

forty-six counts. It could not reach verdicts on the remaining

counts, and a mistrial was declared as to those counts. In the

second trial, those counts were retried together with some newly

added counts, and a jury convicted Carrier of 123 counts and

acquitted him of 19; 8 counts were dismissed.

The court sentenced Carrier to a controlling indeterminate

prison sentence of seventy years to life.

II.

f 10

Motion to Suppress

Carrier contends that the district court erred in denying his

motion to suppress evidence obtained during a search of his home.

He argues that the affidavit in support of the search warrant was so

lacking in probable cause that no officer could have reasonably

relied on it.

1 li

Facts

In May 2011, Detective Adam Romine of the CSPD prepared a

detailed affidavit in support of his request for a search warrant of

Carrier’s home. The affidavit recited the following information.

1 12

In March 2011, Detective Romine was contacted by a special

agent with the Air Force Office of Special Investigations (AFOSI)

regarding a child pornography investigation. The AFOSI agent told

Detective Romine, who is a member of a Department of Homeland

Security task force and an expert in internet crimes against

children, that the AFOSI had received information implicating a

person identified as Joshua D. Carrier, who lived in Colorado

Springs.

1 13

According to the AFOSI agent, U.S. Immigration and Customs

Enforcement (ICE) had initiated an investigation in 2006. The

target of the investigation was an organization operating hundreds

of child pornography websites. On January 17, 2007, a person

using the email addressjoshuacarrier@adelphia.net and an

identifiable Internet Protocol (IP) address made a purchase from one

of the organization’s websites. On February 23, 2007, a person

using the same email address and the same IP address made a

second purchase from another of the organization’s websites.

% 14

The investigation then led the AFOSI to an address and social

security number for that Joshua Carrier in Colorado Springs. But

when the AFOSI learned that Joshua Carrier was a dependent of an

Air Force member, it did not pursue the investigation further.

f 15

In 2010, however, a congressional review prompted the AFOSI

to reinitiate lapsed investigations or to forward information to local

law enforcement agencies. When Detective Romine received the

information about a Joshua Carrier, he recognized the name as

belonging to a fellow CSPD officer. Detective Romine then

conducted further investigation based on the information received

from the AFOSI.

% 16

He confirmed that the IP address used by the website

purchaser “geo-located” to Colorado Springs and that there is only

one Josh Carrier in Colorado Springs. The IP address was now

associated with Comcast, which had acquired Adelphia in mid2006. Romine learned that in 2007, Carrier had been a youth

sports coach for a police athletic league. Records from the athletic

league showed that in 2007, Carrier used the email address

joshuacarrier@comcast.net. Detective Romine knew that Carrier

managed a haunted house business in Colorado Springs. Business

records showed that Carrier was then using the email address

joshcarrier@comcast.net. Detective Romine also confirmed that

Carrier still lived at the same address provided by the AFOSI.

f 17

At the end of March 2011, Detective Romine requested that

the U.S. Postal Inspection Service deliver a flyer advertising the sale

of child pornography videos to Carrier’s address. The flyer was

delivered at the beginning of April. Carrier did not report receipt of

the flyer to anyone at CSPD.

f 18

Detective Romine’s affidavit also included several pages of

information about the electronic receipt and storage of child

pornography. He opined that people interested in child

pornography tended to retain files for a long period of time.

% 19

A county court judge approved the warrant. Police recovered

child pornography DVDs and a computer from Carrier’s house. A

forensic search of the computer revealed “short stories” describing

sexual acts between teen boys and adults, images of child

pornography, and videos of Carrier performing the skin checks,

f 20

Carrier filed a motion to suppress all of the evidence recovered

from his house. The district court held a hearing, made detailed

findings, and denied the motion.

U 21

On appeal, Carrier contends that the affidavit failed to

establish a sufficient nexus between the place to be searched and

the existence of contraband. He argues that the two website

purchases described in the affidavit did not establish probable

cause for the search because the affidavit did not demonstrate a

sufficient likelihood that (1) Carrier made the purchases; (2) the

purchases were of child pornography; and (3) child pornography

would still be present at his home in 2011.

f 22

Probable Cause Principles

“The Fourth Amendment to the. United States Constitution and

article II, section 7, of the Colorado Constitution prohibit the

issuance of a search warrant except upon probable cause supported

by oath or affirmation particularly describing the place to be

searched and the things to be seized.” People v. Cooper, 2016 CO

73, Tf 8 (quoting People v. Miller, 75 P.3d 1108, 1112 (Colo. 2003)).

Probable cause must be established within the four corners of the

warrant or its supporting affidavit. People v. Scott, 227 P.3d 894,

897 (Colo. 2010). A presumption of validity attaches to the affidavit

submitted in support of a search warrant. People v. Rabes, 258

P.3d 937, 940 (Colo. 2010).

f 23

An affidavit establishes probable cause when it alleges

sufficient facts to warrant a person of reasonable caution to believe

that contraband or evidence of criminal activity is located at the

place to be searched. People v. Quintana, 785 P.2d 934, 936-37

(Colo. 1990). To determine whether probable cause exists, we

examine the totality of the circumstances. People v. Mapps, 231

P.3d 5, 8 (Colo. App. 2009). The probable cause standard does not

lend itself to mathematical certainties and should not be “laden

with hypertechnical interpretations or rigid legal rules.” Mendez v.

People, 986 P.2d 275, 280 (Colo. 1999). Thus, the affidavit must be

interpreted “in a common sense and realistic fashion,” and courts

should not impose “technical requirements of elaborate specificity.”

People v. Hearty, 644 P.2d 302, 310 (Colo. 1982) (quoting United

States v. Ventresca, 380 U.S. 102, 108 (1965)).

f 24

Standard of Review

An issuing judge’s probable cause determination is given great

deference. People v. Gall, 30 P.3d 145, 150 (Colo. 2001). Thus, we

do not review the affidavit de novo and ask whether we would have

found probable cause in the first instance; instead, we ask only

whether the issuing judge had a “substantial basis” for finding the

requisite probable cause. People v. Hebert, 46 P.3d 473, 481 (Colo.

2002) (quoting Gall, 30 P.3d at 150). We resolve doubts in favor of

the issuing judge’s determination of probable cause, id., because

such deference acknowledges that reasonable minds frequently may

differ on the question of whether a particular affidavit establishes

probable cause, People v. Randolph, 4 P.3d 477, 482 (Colo. 2000).

f 25

The Affidavit Establishes Probable Cause to Support the

Issuance of the Search Warrant

The Affidavit States Probable Cause That Carrier Was the

- Purchaser

Carrier says that the only information connecting him to the

purchases made from the organization’s websites is an email

address, joshuacarrier@adelphia.net. He argues that this

information does not amount to probable cause to believe that he

was the purchaser.

f 26

We disagree, because the affidavit stated the following:

• The purchases were made by someone using the email

address j oshuacarrier@adelphia. net.

• The IP address associated with the transactions “geo-located”

to Colorado Springs.

• Defendant is the only Joshua Carrier in Colorado Springs.

• At some point in 2007, defendant was using an email

address joshuacarrier@comcast.net.

• In mid-2006, Comcast acquired Adelphia and all of the

Adelphia email addresses were eventually transferred to Comcast.

• In 2011, defendant was using the email address

j oshcarrier@comcast. net.

• Carrier’s home address did not change between 2007 and

2011.

127

True, as Carrier points out, the AFOSI investigators did not

obtain payment or internet subscriber information that directly and

definitively connected Carrier to the purchases or the email address

joshuacarrier@adelphia.net. But probable cause to search a

particular place can be established entirely by circumstantial

evidence and reasonable inferences drawn from that evidence.

People v. Green, 70 P.3d 1213, 1214-15 (Colo. 2003). And because

probable cause “deals with probabilities, not certainties,” People v.

Altman, 960 P.2d 1164, 1171 (Colo. 1998), an affidavit need only

establish “a fair probability” that officers executing the warrant will

find evidence of a crime at the place to be searched. Green, 70 P.3d

at 1214.

1 28

We conclude that the affidavit established a fair probability

that Carrier was the person who made the purchases from the

organization’s websites.

f 29

The Affidavit States Probable Cause That Carrier Purchased

Child Pornography

Carrier contends that the affidavit fails to establish that he

purchased child pornography rather than lawful materials.

«§ 30

We disagree, because the affidavit stated the following:

• In 2006, ICE initiated an investigation into a criminal

organization. ICE learned that the organization was operating over

200 child pornography websites, including a website known as

“Home Collection.”

• On January 17, 2007, Carrier made a $79.95 purchase from

one of the organization’s websites (the invoice was sent by an email

address known to ICE to be linked to the organization), but ICE

could not identify the particular website.

• On February 23, 2007, Carrier purchased a membership for

$99.95 to “the member website titled ‘Home Collection CP Archive

and the advertising website titled ‘Pure Child Fuck.

• The website contained several sections, including “News,”

“Photos, » a Videos,” and “Software.” The “photos” section contained

a single gallery of nineteen images, including images of child

pornography, The “Videos” section contained child pornography.

1 31

It is theoretically possible, as Carrier contends, that he made a

purchase from a website associated with an organization operating

child pornography websites, and also paid to subscribe to a website

titled “Pure Child Fuck,” without ever accessing child pornography.

Still, the “mere fact that ‘innocent explanations for the activity may

be imagined’ is not enough to defeat the probable cause showing.”

2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth

Amendments 3.2(e), Westlaw (5th ed. database updated Oct. 2017)

(quoting Peterkin v. United States, 281 A.2d 567, 569 (D.C. 1971)).

132

And based on the evidence in the affidavit, the issuing judge

could reasonably have decided that an innocent explanation was

unlikely. “[EJvidence that a person has visited or subscribed to

websites containing child pornography supports the conclusion that

he has likely downloaded, kept, and otherwise possessed” child

pornography. United States v. Wagers, 452 F.3d 534, 540 (6th Cir.

2006); see also United States v. Martin, 426 F.3d 68, IT (2d Cir.

2005) (evidence that the defendant belonged to a child pornography

website established probable cause even without direct evidence

that the defendant downloaded material from the website because

“[a]t its core, the modus operand!” of the website “was criminal”).

133

We conclude, therefore, that the affidavit established a fair

probability that Carrier purchased or accessed child pornography in

January and February 2007.

^ 34

The Affidavit States Probable Cause That Evidence of a Crime

Would Be Found at the Time of the Search

Carrier’s primary argument is that any information

establishing probable cause that he had possessed child

pornography in 2007 was too stale to establish probable cause for a

search of his home in 2011.

f 35

We readily acknowledge that an affidavit for a search warrant

must demonstrate that evidence of criminal activity is located in the

place to be searched “at the time of the warrant application, not

merely some time in the past.” Cooper,

8 (quoting Miller, 75 P.3d

at 1112). Thus, whether the information in the affidavit is stale is

an important consideration. People v. Krueger, 2012 COA 80, If 41.

Staleness, though, is “not simply a question of the passage of time.”

Id. (quoting People v. Crippen, 223 P.3d 114, 118 (Colo. 2010)).

Instead, staleness depends on the type of crime and the factual

circumstances of the case. Mapps, 231 P.3d at 8; see also Crippen,

223 P.3d at 118 (reasoning that the staleness inquiry “is a function

of a host of variables unrelated to the calendar, chief among which

are the nature of the criminal activity at issue and the way the

items being sought are related to it”)..

% 36

Detective Romine’s affidavit stated that Carrier was a suspect

in a child pornography investigation and that he had used his

computer to purchase and access child pornography. The affidavit

included several pages explaining the basis of the detective’s belief

that evidence of a crime would be found at Carrier’s home, even

four years after the initial investigation. For example, the affidavit

stated the following:

• The computer is “an ideal repository for child pornography.”

• “[C]omputer files or remnants of such files can be recovered

months or even years after they have been downloaded onto a

storage medium, deleted, or viewed via the Internet.”

• “Even when files have been deleted, they can be recovered

months or years later using forensic tools.” This is so because

when a person “deletes” a file on the computer, “the data contained

in the file does not actually disappear.” Rather, deleted files often

reside in “free space” or “slack space” for “long periods of time

before they are overwritten.”

• “Files that have been viewed via the Internet are sometimes

automatically downloaded into a temporary Internet directory or

‘cache.’” Those files “are only overwritten as they are replaced by

more recently viewed Internet pages or if a user takes steps to

delete them.”

• A computer’s internal hard drive “contain[s] electronic

evidence of how a computer has been used, what it has been used

for, and who has used it.” Computer users “typically do not erase

or delete this evidence, because special software is typically

required for that task.”

• “Many individuals who collect child pornography maintain

books, magazines, newspapers and other writings, in hard copy or

digital medium, on the subject of sexual activities with children

. . . .” Such individuals “rarely destroy these materials because of

the psychological support they provide.”

f 37

The staleness argument takes on a different meaning in the

context of child pornography because, as courts have uniformly

recognized, persons interested in child pornography “rarely, if ever,

dispose of their collections.” United States v. Prideaux-Wentz, 543

F.3d 954, 958 (7th Cir. 2008); see also United States v. Irving, 452

F.3d 110, 125 (2d Cir. 2006) (the staleness inquiry in the context of

child pornography investigations is “unique”). And electronic

images of child pornography “can have an infinite life span.” United

States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009).

f 38

In Irving, for example, officers obtained a warrant to search for

child pornography at the defendant’s home five years after he was

detained briefly at an airport on suspicion of traveling

internationally to engage in sexual acts with minors. 452 F.3d at

115. The court concluded that the information in the affidavit was

not stale, primarily because “it is well known that ‘images of child

pornography are likely to be hoarded by persons interested in those

materials in the privacy of their homes.”’ Id. at 125 (quoting United

States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y. 1996)); see also

United States v. Riccardi, 405 F.3d 852, 861 (10th Cir. 2005)

(warrant based primarily on five-year-old receipt was not invalid

due to staleness).

% 39

Carrier does not dispute the general proposition that images of

child pornography may be recovered long after the defendant

accesses them, or that this proposition affects the staleness inquiry.

Instead, he contends that the affidavit failed to demonstrate that he

was the type of person who was likely to store images of child

pornography for many years.

% 40

We agree that, when the affiant relies on the characterization

of the defendant as a person interested in child pornography to

defeat a staleness challenge, the affidavit must contain some

evidence to support that characterization. See, e.g., United States v.

Raymonda, 780 F.3d 105, 117 (2d Cir. 2015). But the requirement

can be satisfied by evidence that the defendant paid for

membership to a child pornography website. See id. at 114; see

also Frechette, 583 F.3d at 379 (no staleness where the defendant

purchased website subscription); United States v. Gourde, 440 F.3d

1065, 1072 (9th Cir. 2006) (the defendant fit the collector profile

because he joined a paid subscription website).

1 41

In light of these principles, we find Carrier’s reliance on United

States v. Weber, 923 F.2d 1338 (9th Cir. 1990), misplaced. For one

thing, Weber did not involve the search of a computer. The

uniqueness of the staleness inquiry in child pornography cases

turns to a great extent on the fact that electronic images can remain

on a computer indefinitely, even after the suspect deletes them. See

United States v. Kleinkauf, 487 F. App’x 836, 839 (5th Cir. 2012)

(information about purchase of child pornography was not stale, in

part because “it is common to retrieve computer files or images long

after they were viewed, downloaded, or deleted”).

1 42

Moreover, in Weber, the suspect engaged in a single

transaction involving the purchase, by mail, of child pornography.

923 F.2d at 1340. The court concluded that the affidavit, which did

not attempt to demonstrate that the defendant was a “collector” of

child pornography, failed to state probable cause to search for items

beyond those ordered by the defendant. Id. at 1344-45.

143

In contrast, Carrier bought a membership to a child

pornography website. The issuing judge could reasonably have

inferred that Carrier sought unlimited access to the content of the

website, and that Carrier was therefore a person interested in child

pornography. See Raymonda, 780 F.3d at 114-15; see also

Prideaux-WentZj 543 F.3d at 961 (affidavit demonstrated that the

defendant might be a “collector” of child pornography where

evidence showed that he downloaded “a fair number of child

pornography images”).

1 44

Accordingly, we conclude that the affidavit established a fair

probability that evidence of a crime would be found at Carrier’s

home at the time of the search.

1 45

Good Faith Exception

Even if we assume that the information in the affidavit was too

stale to establish probable cause, we nonetheless agree with the

district court that suppression of the evidence was not required.

H 46

The good faith exception to the exclusionary rule applies

when, despite an invalid warrant, the officers who executed the

warrant had a reasonable good faith belief that the search

comported with the Fourth Amendment. United States v. Leon, 468

U.S. 897, 906 (1984). We presume that an officer’s actions are in

“reasonable good faith” when the evidence was obtained pursuant

to and within the scope of the warrant, unless the warrant was

obtained by misrepresentation. § 16-3-308(4)(b), C.R.S. 2017.

f 47

The good faith exception does not apply, however, where the

warrant is based on a “bare bones” affidavit — an affidavit so

lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable. Cooper, ^ 12-13. Thus, the

exception provides a safe harbor for the “middle ground” between

an affidavit setting forth probable cause and a bare bones affidavit.

People v. Gutierrez, 222 P.3d 925, 942 (Colo. 2009) (quoting Altman.

960 P.2d at 1169).

U 48

Carrier says the affidavit qualifies as a “bare bones” affidavit

because the information was stale. But the affidavit reliably

establishes that Carrier had purchased access to a child

pornography website. And Detective Romine provided detailed

information concerning the likelihood of recovering evidence of a

crime from the home, including the computer, of a person

interested in child pornography. Under these circumstances, even

if the affidavit failed to establish probable cause, we cannot

characterize it as a bare bones affidavit containing “wholly

conclusory statements devoid of facts from which a magistrate can

independently determine probable cause.” Altman, 960 P.2d at

1170; see also Prideaux-Wentz, 543 F.3d at 960-61 (although fouryear-old information in affidavit was stale, officer’s reliance on

warrant was objectively reasonable because affidavit included

“specifics” suggesting that the defendant might be a “collector” of

child pornography).

' 20

1 49

We therefore conclude that, even if the warrant was not

supported by the requisite probable cause, the good faith exception ,

applies, and the district court did not err in denying Carrier’s

motion to suppress.

III.

The Admission of the Child Molesters Book was Not Plain Error

% 50

In both trials, the prosecution introduced a book entitled Child

Molesters: A Behavioral Analysis for Law Enforcement Officers

Investigating The Sexual Exploitation of Children By Acquaintance

Molesters. The book was discovered in July 2011, in an envelope

on Carrier’s desk at the CSPD.

«j| 51

Carrier contends that the court committed plain error in

admitting the book because it (1) contained unreliable expert

evidence; (2) constituted impermissible lay opinion; (3) contained

improper opinions on the credibility of child victims; (4) constituted

inadmissible hearsay;1 (5) amounted to impermissible profile

evidence; and (6) was unduly prejudicial.

1 The book is not a testimonial statement for purposes of a

Confrontation Clause analysis. See Raile v. People, 148 P.3d 126,

130 (Colo. 2006) (describing testimonial hearsay).

152

Standard of Review

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

discretion. People v. Relaford, 2016 COA 99, 1 15. A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or if it misapplies the law. Id.

f 53

The parties agree that Carrier did not object to the admission

of the book. The People say the failure to object means that Carrier

waived the claim; Carrier says we should review for plain error,

f 54

We assume, without deciding, that Carrier did not waive his

claim. See People v. Rediger, 2018 CO 32, H 39-40. But Carrier

cannot demonstrate plain error. Plain error is error that is obvious

and substantial and so undermines the fundamental fairness of the

trial as to raise serious doubts about the outcome. People v.

Douglas, 2015 COA 155, 1 41.

f 55

Analysis

The People defend the admission of the book on the ground

that it was not admitted for the truth of its content but to show that

Carrier possessed it. We acknowledge that no witness testified

about the statements in the book. But the record does not

establish that the prosecutor expressly offered the book for a limited

purpose. If he had, Carrier could have requested an instruction,

and the court would have provided one. See CRE 105. As it was,

the jury was not instructed that it could consider the book only for

a limited purpose and not for the truth of its content.

If 56

Because the People offer no other justification for the book’s

admission, we will assume that its admission was error for the

reasons asserted by Carrier.

K 57

We understand Carrier’s primary objection to be that the book

sets forth “indicators” and “behavior patterns” of “acquaintance

child molesters,” some of which Carrier shares. For example, the

author says that these sex offenders tend to victimize boys between

the ages of ten and sixteen, collect child pornography and child

erotica, and control their victims through a “grooming” process.

The book mentions that child molesters use their status as an

authority figure — as coaches or police officers — to manipulate

victims and escape responsibility. And the book specifically warns

that these authority figures can “claim that certain acts of physical

touching were a legitimate part of their examination or treatment.”

*f 58

We agree that this information would be prejudicial to

Carrier’s defense. The problem, though, is that the same

. information was properly admitted, without objection, through two

experts.

% 59

The experts testified at length about behaviors and

characteristics of sexual offenders, including the process of

grooming victims and the exploitation of their position of trust (as a

teacher, coach, or police officer) to lend legitimacy to their actions.

One of the experts testified in detail about child molesters’

“cognitive sets,” using a formal typology akin to the one presented

in the book.

f 60

When improperly admitted lay evidence is cumulative of

properly admitted expert testimony, there is no plain error.

Douglas,

41; see also People v. Herdman, 2012 COA 89, f 72

(improper admission of lay opinion testimony concerning posttraumatic stress disorder was not plain error because experts on

both sides testified about the condition).

f 61

We agree that the author’s opinion that “children rarely lie

about sexual victimization” improperly bolstered the credibility of

the child victims. See People v. Wittrein, 221 P.3d 1076, 1081 (Colo.

2009). But considered in context, we cannot say that the single

sentence in a 150-page document amounted to plain error. The

sentence is followed by an explanation of when a child might lie

about sexual abuse, including a cautionary statement that “just

because a child is not lying does not mean he or she is making an

accurate statement.” Thus, the error was not substantial. See

Relaford, Tf 43.

1 62

As for the statements in the book about sex offenders’

potential to commit violence against their victims, or to victimize

multiple children, we discern no reversible error. First, multiple

children testified that Carrier had in fact victimized them; that

properly admitted testimony was surely more damaging than

generic statements in the book. And, unlike the statements about

characteristics of sex offenders that actually matched Carrier, the

statements about potential for violence were unrelated to any of the

allegations in the case. In any event, that a sex offender might

commit violence to avoid detection is a conclusion a jury is likely to

draw on its own. See People v. Howard-Walker, 2017 COA 81M,

63 (no plain error from officer’s testimony that the defendant

would have used gun if he had encountered homeowner during

burglary because jury would have inferred that on its own) [cert.

granted May 21, 2018).

163

Finally, we note that in the first trial at least, the book appears

to have had no effect on the jury: Carrier was not convicted of any

of the sexual contact or sexual assault charges. We therefore will

not attribute to the book a high potential for inflaming the jury.

1 64

To the extent Carrier has other objections to the book’s

admission, he has not explained why those objections matter. For

example, Carrier says that the book’s author, who is not a

psychiatrist, rendered opinions “regarding psychological and mental

health disorders” and “adolescent development and behavior.” But

it is not clear how the admission of those opinions was harmful to

Carrier’s defense. We will not speculate as to possible prejudice.

Without any allegation, much less a demonstration, of prejudice, we

cannot find plain error. See People v. Palacios, 2018 COA 6M, 1 29

(court will not speculate as to what the party’s argument might be).

IV.

■% 65

Admission of Certain Lay Testimony Was Not Plain Error

Carrier contends that the court erred by admitting (1) expert

testimony in the guise of lay testimony; (2) testimony regarding

witnesses’ credibility and Carrier’s guilt; and (3) improper character

evidence.

% 66

Standard of Review

We will not disturb a trial court’s evidentiary rulings absent a

showing of an abuse of discretion. People v. McFee, 2016 COA 97,

| 17. A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or is based on an erroneous

understanding or application of the law. Id.

Mostly, Carrier did not object to the admission of evidence he

now says should not have been admitted. Thus, even if we

conclude that the court abused its discretion, we will not reverse

unless the error amounted to plain error. Crim. P. 52(b); Hagos v.

People, 2012 CO 63, ^ 14.

K 68

Expert Testimony

Expert Versus Lay Testimony

A witness gives lay testimony when the testimony is rationally

based on the perception of the witness and not based on scientific,

technical, or other specialized knowledge. CRE 701. A witness

gives expert testimony when the testimony is based on scientific,

technical, or specialized knowledge. CRE 702.

% 69

The “critical factor” in distinguishing between lay and expert

testimony is the basis for the witness’s opinion. Venalonzo v.

People, 2017 CO 9, f 23. Lay testimony is “testimony that could be

expected to be based on an ordinary person’s experiences or

knowledge,” id., whereas expert testimony “goes beyond the realm of

common experience and requires experience, skills, or knowledge

that the ordinary person would not have,” id. at 1 16.

1 70

The Challenged Testimony

Handwriting Comparison. We perceive no error in the

admission of a detective’s lay opinion testimony that handwriting on

a sticky note was similar to a known sample of Carrier’s

handwriting. See § 13-25-104, C.R.S. 2017 (handwriting

comparison “shall be permitted to be made by witnesses in all trials

and proceedings”); Lewis v. People, 174 Colo. 334, 340, 483 P.2d

949, 952 (1971) (“[U]nder our statutes, it is not necessary that an

expert testify as to the authenticity of the writing.”); see also People

v. Vigil, 2015 COA 88M, f 59 (allowing lay testimony that

shoeprints appeared to match) (cert, granted Mar. 20, 2017).

171

“Tanner Stages” of Development. Even assuming that

testimony about the “Tanner Stages” of development in children,

adolescents, and adults constituted expert testimony, we discern no

plain error in the admission of the testimony through a police

officer testifying as a lay witness. Carrier has not alleged prejudice

and we perceive none. See People v. Boykins, 140 P.3d 87, 95

(Colo. App. 2005) (to demonstrate plain error, the defendant must

establish that error affected his substantial rights).

. U 72

Mandatory Duty to Report Flyer. Two officers testified that

Carrier had a statutory duty to report receipt of the flyer advertising

child pornography sent by the postal inspector to Carrier’s home.

One of the officers also testified that Carrier would have had both a

moral and legal duty to turn over the DVDs found in Carrier’s home

if they had been obtained mistakenly.

<f 73

Admission of the officers’ interpretation of the mandatory

reporting statute, section 19-3-304, C.R.S. 2017, to require Carrier

to report the flyer, and their conclusion that Carrier had violated

the statute, was error. A witness may not usurp the function of the

court by expressing an opinion of the applicable law or legal

standards. Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo.

App. 2000); see also People v. Beilke, 232 P.3d 146, 152 (Colo. App.

2009) (“[A] witness may not testify that a particular legal standard

has or has not been met.”).

<f 74

Still, we conclude that the error was harmless. An evidentiary

error is harmless where, viewing the evidence as a whole, it does ■

not substantially affect the verdict or impair the fairness of the trial..

Beilke, 232 P.3d at 152. The upshot of the officers’ testimony was

that Carrier had received the flyer but had decided, despite his

statutory duty, not to report it. From there, the jury could have

inferred that Carrier disregarded his duty because disclosure might

have raised questions as to why he would have been a recipient of a

child pornography advertisement, or because he intended to order a

video offered on the flyer. Either way, the worst possible inference

the jury could have drawn from the officers’ testimony was that

Carrier was so intent on hiding his interest in child pornography

that he disregarded a mandatory duty. But other evidence, such as

the child pornography discovered on his computer, directly

established that Carrier had an interest in child pornography that

he attempted to hide. Thus, we are confident that the officers’

inadmissible legal opinions did not substantially affect the verdict.

Medical Opinions. In both trials, a mother of one of the victims

explained the symptoms of appendicitis. In the first trial, another

victim’s mother, a medical assistant, testified that medical protocol

required the presence of a third party during the examination of a

minor’s genitals. In the second trial, a wrestling coach testified

about the procedure for identifying ringworm,

f 76

Even if we assume that the testimony amounts to expert

testimony, see Melville v. Southward, 791 P.2d 383, 387 (Colo.

1990) (“[MJatters relating to medical diagnosis and treatment

ordinarily involve a level of technical knowledge and skill beyond

the realm of lay knowledge and experience.”), its admission was not

plain error. The first mother’s and the coach’s testimony was

cumulative of properly admitted expert testimony of an emergency

medicine expert and a pediatrician. Douglas,

41. As for the

medical assistant’s testimony, it was prejudicial only because it

undermined Carrier’s defense that he performed the skin checks,

during which he touched the children’s genitals, according to

reasonable medical protocol. But in the first trial, Carrier was not

convicted of any of the charges related to touching the children’s

genitals. Thus, we can be sure that the testimony did not cast

serious doubt on the reliability of the judgment of conviction.

t 77

Lay Opinions on Credibility and Guilt

Carrier contends that the following testimony, admitted at the

first trial, impermissibly commented on the credibility of the victims

and his guilt:

• A father testified that his son would not lie to him about

Carrier touching his genitals.

• In response to a question about whether she was told what

her son had disclosed in his forensic interview, a mother stated, “I

know that he was . . . sexually assaulted.”

• In response to a jury question (“Do you recall when you

formed the opinion that the defendant is guilty?”) a forensic

investigator testified that she usually determines whether there has

been a criminal violation near the end of an interview.

f 78

In a video of an interview played for the jury, the same forensic

interviewer explained to one of the victims that she believed that

what Carrier had done to the victim was grooming, a violation of

policy, a misuse of power and trust, and criminal.

1 79

Testimony that a witness was truthful on a particular occasion

is not admissible, particularly when it does not relate to an issue

other than credibility. Relaford, *[f 27; see also CRE 608 (allowing

evidence of a witness’s character for truthfulness). As well, a

witness cannot testify that he believes that the defendant

committed the crime at issue. People v. Penn, 2016 CO 32-, t 31.

Accordingly, the court abused its discretion in admitting the

testimony.

f 80

However, the admission of this testimony did not rise to the

level of plain error. In the first trial, Carrier was acquitted of

charges related to the father’s and mother’s sons; thus, the

impermissible bolstering of those victims’ credibility could not have

affected the verdict. Relaford, Tf 43.

f 81

The forensic investigator’s comments during the interview

about Carrier’s misconduct and guilt were also not plain error; in

the scheme of the month-long trials, we cannot say that these brief

comments undermined the reliability of the verdicts.

% 82

As for the response to the jury question, Carrier approved the

question and should have anticipated the answer, which was

directly responsive. Thus, any error in admitting the investigator’s

response was either invited or, at a minimum, not plain. See

Wittrein, 221 P.3d at 1082 (admission of testimony was invited or

not plain error where the “responses were a foreseeable result of the

form of questioning”).

f 83

Improper Personal Opinions About Carrier

Carrier contends that the following testimony amounted to

improper personal opinions about him:

% 84

Detective’s Impressions about Carrier’s State of Mind. In the

first trial, a detective testified that, in an effort to have Carrier

return home while the police conducted the search of his home, he

told Carrier that his home had been burglarized. The detective

testified that during the telephone call, he had the impression that

Carrier did not want him at his home.

185

Under CRE 701, a lay witness may state an opinion about

another person’s motivation or intent if the witness had sufficient

opportunity to observe the person and to draw a rational conclusion

about the person’s state of mind. People v. Hoskay, 87 P.3d 194,

197 (Colo. App. 2003).

186

Thus, the court did not abuse its discretion in permitting the

detective to testify as to his conclusion about Carrier’s state of

mind. In any event, even if the testimony were inadmissible, the

detective acknowledged that he was speculating as to Carrier’s state

of mind and thus any error would not warrant reversal. See

Wittrein, 221 P.3d at 1082 (where a witness disclaimed the certainty

of her opinion, testimony could not affect the fairness of the trial),

f 87

Parents’ Testimony. A victim’s mother testified that when she

and her husband, “who had issues with Carrier already,” learned of

Carrier’s arrest, her husband stated, “I knew he was a chomo.”

Another victim’s mother testified that she “knew something was

wrong” with Carrier, that she “always knew something was off,” and

that she “had a bad feeling” about him all along. A father testified

that he did not like Carrier because he wrestled with the children

while continuing to wear his gun.

%88

Even if we assume that the admission of this testimony was

error the error was not plain. The witnesses’ references to their

opinions of Carrier were fleeting, particularly in the context of two

lengthy trials. People v. Armijo, 179 P.3d 134, 139 (Colo. App.

2007) (“[T]here is no reasonable possibility that the brief testimony

without any elaboration or subsequent reference to it, influenced

the jury’s verdict or affected the fairness of the trial.”); People v.

Cardenas, 25 P.3d 1258, 1263 (Colo. App. 2000) (a statement by a

witness about why the victim feared the defendant was harmless

“because it was brief and general in nature”).

<189.

Moreover, with respect to the “chomo” evidence,- Carrier’s

lawyer elicited the most damaging aspects of this testimony on

cross-examination. See Wittrein, 221 P.3d at 1082.

% 90

Witnesses’ Comments on Carrier’s Assertion of His

Constitutional Rights

Carrier contends that certain evidence constituted an

improper comment on his exercise of his constitutional rights:

• A police officer testified that Carrier “demanded” to see the

search warrant.

• Another officer, while recounting the circumstances of

executing the warrant, mentioned that Carrier called his mother

and asked her to call an attorney.

• Recordings of pretextual phone calls were admitted in which

Carrier repeatedly noted that he had hired an attorney and, at one

point, told a friend that he could not discuss the case with him.

191

It is well settled that the prosecution may not use the

defendant’s assertion of his constitutional rights to imply guilt. See

People v. Pollard, 2013 COA 31M, 1 25. The prosecution

impermissibly “uses” a person’s assertion of his constitutional

rights when it introduces evidence of the assertion without having a

proper purpose for admission of the evidence, or when it argues to

the jury that such evidence is probative of guilt. Id. at t 30.

| 92

The People do not offer any proper purpose for the

introduction of the challenged testimony. Still, any error in

admitting the testimony was not plain.

«f 93

First, the officer’s comment that Carrier demanded to see the

warrant was cumulative of other testimony (not challenged on

appeal) that Carrier requested to see the warrant. And at least one

officer testified that CSPD protocol required officers to show the

warrant to the homeowner. The officer’s comment that Carrier

asked his mother to call a lawyer was nonresponsive to the

prosecution’s question. See People v. Petschow, 119 P.3d 495, 507

(Colo. App. 2004) (admission of testimony was not plain error where

the “defendant made no objection and . . . the portions of the

testimony he now challenges were volunteered by the witnesses and

were not responsive to the prosecutor’s questions”). And Carrier did

not request that the audiotapes, which were admitted for a proper

purpose, be redacted to exclude any reference to an attorney.

1 94

But more importantly, none of the evidence implied that

Carrier’s assertion of his constitutional rights demonstrated guilt.

“The prosecutor did not direct the jury’s attention to defendant’s

[assertion of his constitutional rights], expand on the testimony, or

refer to it later.” Id. at 506; see also People v. Hall, 107 P.3d 1073,

1078 (Colo. App. 2004) (admission of testimony was not plain error

where prosecutor did not argue that the defendant’s assertion of his

rights implied guilt).

I 95

The Admission of Prior Acts Evidence Was Not Plain Error

Carrier contends that the prosecution’s admission of the

following evidence was improper under CRE 404(b): (1) testimony

about the tip that led investigators to Carrier; (2) testimony about

why the postal inspector sent the flyer to Carrier; (3) testimony

about other potential victims; (4) evidence of Carrier’s possession of

legal adult pornography; and (5) testimony that Carrier failed to

report the child pornography flyer or the child pornography he

possessed.

H 96

Legal Principles and Standard of Review

CRE 404(b) prohibits the admission of “[evidence of other

crimes, wrongs, or acts ... to prove the character of a person in

order to show that he acted in conformity therewith.” Such

evidence may be admissible for other purposes “provided that upon

request by the accused, the prosecution in a criminal case ...

provide[s] reasonable notice in advance of trial ... of the general

nature of any such evidence it intends to introduce at trial.” Id.

197

However, admission of prior acts evidence does not always fall

within the scope of Rule 404(b). People v. Gee, 2015 COA 151,

If 27. Instead, such evidence may constitute the “res gestae” of the

charged offense and is not subject to Rule 404(b)’s procedural

requirements. People v. Miranda, 2014 COA 102, If 50.

198

Res gestae is a theory of relevance recognizing that certain

evidence is relevant because of its unique relationship to the

charged crime. People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009).

Res gestae evidence is linked in time and circumstances with the

charged crime, forms an integral and natural part of an account of

a crime, or is necessary to complete the story of the crime for the

jury. Miranda, 1f 47.

' 199

Regardless of whether other acts evidence is admissible as res

gestae or for a permissible purpose under CRE 404(b), the evidence

may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice. See CRE 403; People v. Jaramillo,

183 P.3d 665, 668 (Colo. App. 2008).

f 100 -We review a trial court’s decision to admit evidence under CRE

404(b) or as res gestae for an abuse of discretion. Gee, f 23. A trial

court abuses its discretion if its decision was manifestly arbitrary,

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

Id.

Some of the Evidence Was Properly Admitted As Res Gestae

*1 101

The evidence about the investigation — the AFOSI tip that led

CSPD officers to Carrier and the reason for sending the flyer — was

part of the res gestae of the offense, admissible to explain why the

CSPD initiated its investigation of Carrier and how the investigation

unfolded. See People v. Gomez, 211 P.3d 53, 58 (Colo. App. 2008)

(officer’s testimony about tip that led to undercover investigation

was admissible as res gestae), abrogated on other grounds by Moore

v. People, 2014 CO 8; see also People v. Asberry, 172 P.3d 927, 933

(Colo. App. 2007) (testimony explaining the investigation was

admissible as res gestae).

% 102

We discern no unfair prejudice from the admission of the

evidence. Carrier says the evidence unfairly suggested that he was

“predisposed to possess child pornography.” But Carrier did

possess child pornography, and evidence of his possession of child

pornography was properly admitted at both trials.

% 103

Any Error in Admitting Other Prior Bad Acts Evidence Did Not

Amount to Plain Error

With respect to the testimony about other potential victims,

any error in admitting the testimony was not plain. In a case

involving twenty-two alleged victims, testimony that the police could

not identify a couple of students depicted in Carrier’s secret skincheck videos or that students discussed the allegations against

Carrier with other students was unlikely to have affected the

outcome. See People v. Lopez, 129 P.3d 1061, 1065 (Colo. App.

2005).

f 104

As for evidence that Carrier possessed adult pornography, we

agree that this evidence was inadmissible under Rule 404(b), but

conclude that its admission was not plain error. In light of all of the

evidence presented during the month-long trials, including evidence

that Carrier possessed child pornography, we cannot say that

admission of some adult pornographic magazines and videos cast

serious doubt on the reliability of the verdicts. See Relaford, Tf][ 6667.

<f 105

Finally, for the reasons we have already explained, we

conclude that any error in admitting evidence that Carrier violated a

mandatory duty to report the flyer was not plain error.

VI.

Any Prosecutorial Misconduct Did not Amount to Plain Error

% 106

Legal Principles and Standard of Review

In evaluating a claim of prosecutorial misconduct, we engage

in a two-step analysis: we must determine, first, whether the

prosecutor’s questionable conduct w;as improper based on the

totality of the circumstances and, second, whether such actions

warrant reversal according to the proper standard of review. Wend

v. People, 235 P.3d 1089, 1096 (Colo. 2010).

1 107

If defense counsel objected at trial, we review for harmless

error, but if there was no contemporaneous objection to the

prosecutor’s statements, we apply a plain error standard of review.

Id. at 1097.

% 108

“To constitute plain error, misconduct must be flagrant or

glaring or tremendously improper, and it must so undermine the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” People v. Weinreich, 98

P.3d 920, 924 (Colo. App. 2004), affd, 119 P.3d 1073 (Colo. 2005).

f 109

The Challenged Statements

Carrier argues that, during the two trials, the prosecutor

committed misconduct in the following ways:

• In his opening statement, the prosecutor told the jury that

Carrier “will not fool you” like he fooled the parents and staff of the

middle school. In closing argument, the prosecutor argued that

Carrier’s secrecy about touching the children’s genitals

demonstrated that he was conducting the skin checks for sexual

gratification, not for legitimate purposes. Contrary to Carrier’s

assertion, we cannot conclude that these comments were calculated

or intended to direct the attention of the jury to Carrier’s decision

not to testify. See People v. Todd, 189 Colo. 117, 120, 538 P.2d

433, 436 (1975).

• The prosecutor called Carrier’s theory that he touched the

children’s genitals for a bona fide medical purpose “foolish” and

explained to the jury that Carrier’s defense had changed from denial

to “legitimate purpose” after the prosecution discovered the videos

of the skin checks. These statements merely characterized Carrier’s

defense in order to illustrate the prosecutor’s view “that the

evidence in support of defendant’s [theory] lacked substance.”

People u. Ramirez, 997 P.2d 1200, 1211 (Colo. App. 1999), off d, 43

P.3d 611 (Colo. 2001).

• During closing argument, the prosecutor suggested that

Carrier had deleted the skin-check videos because he was no longer

using them for masturbatory purposes. In our view, the comment

was a reasonable inference drawn from expert testimony. See

People v. Strock, 252 P.3d 1148, 1153 (Colo; App. 2010) (“A

prosecutor has wide latitude to make arguments based on facts in

evidence and reasonable inferences drawn from those facts.”).

• The prosecutor argued that there was no evidence that

Carrier touched the children’s genitals for a medical purpose or that

Carrier made the videos to protect himself from potential

accusations. These comments did not improperly shift the burden

of proof to Carrier. See id. at 1155 (citing cases for proposition that

prosecutor’s comments on lack of evidence to support defense

theory did not improperly shift burden of proof to defendant).

• In the first trial, the prosecutor argued that two of the

victims would not have lied about being touched on their genitals

because the disclosure was so embarrassing. As a general matter,

a prosecutor may not inteiject his or her personal belief regarding

the veracity of a witness’s testimony, but he or she may properly

reference facts supporting the witness’s credibility. People v. Serpa,

992 P.2d 682, 685-86 (Colo. App. 1999). But even if the comments

constituted improper vouching, see People v. Villa, 240 P.3d 343,

358 (Colo. App. 2009), we cannot say that, in light of the

prosecutor’s entire closing argument, the comments were so

flagrant or prejudicial as to warrant a new trial, id. Moreover, in

the first trial, the jury acquitted Carrier of all charges related to

those two victims; thus, the verdict was not rendered unreliable by

the supposed vouching. Weinreich, 98 P.3d at 924.

• The prosecutor characterized the child victims as “innocent.”

Even assuming the comment was error, we cannot say that his brief

characterization of the victims rose to the level of plain error. See

Stout v. People, 171 Colo. 142, 148, 464 P.2d 872, 875 (1970) (no

reversible error where prosecutor argued the complaining witnesses

were “good and fine girls” when the jury was instructed such

comments were just argument and not evidence).

• The prosecutor stated that the short stories depicting boys

engaging in sexual activities were “disgusting, appalling” and

showed Carrier’s intent to touch the children for sexual

gratification. Contrary to Carrier’s contention, this statement does

not impermissibly “paint Carrier as a bad person.” Rather, the

comment was an acceptable “oratorical embellishment,” Strock, 252

P.3d at 1153 (quoting People v. Collins, 250 P.3d 668, 678 (Colo.

App. 2010)); see also People v. Lovato, 2014 COA 113, T[ 69 (where

context supports a descriptive term, the descriptive term is

admissible), and a proper direction to the jury to use the evidence

for the limited purpose of considering Carrier’s intent.

• During the second trial, the prosecutor stated throughout

closing argument that Carrier was “the great manipulator,” “the

distorter,” and “a con.” We agree that these remarks crossed the

line and were improper. See People v. Mason, 643 P.2d 745, 752

(Colo. 1982). But based on the mixed verdicts, we are confident

that the remarks did not so “inflame[] and impassionf] the jury that

it could not render a fair and impartial verdict.” Id. at 753 (quoting

People v. Elliston, 181 Colo. 118, 126, 508 P.2d 379, 383 (1973)).

VII. The Court Did Not Abuse Its Discretion in Denying the

Request for a Kinney Instruction

H no

In the first trial, the jury returned mixed verdicts related to

two victims, A.H. and D.E., acquitting on some counts and hanging

on others. In the second trial, the prosecution retried counts on

which the jury had hung. It also provided notice of its intent to

introduce evidence through those victims of the acquitted conduct

under Rule 404(b).2

1 HI

Carrier requested an instruction, pursuant to Kinney v.

People, 187 P.3d 548 (Colo. 2008), informing the jury that he had

been acquitted of that conduct in the first trial. The court denied

the request, citing both the unlikelihood that the jury would learn

of the earlier trial or speculate about fhe verdict as well as the high

potential for juror confusion.

1 H2

Legal Principles and Standard of Review

Prior acts evidence can be admitted even though the defendant

was acquitted of the criminal charges arising out of the act,

2 The prosecution endorsed two other victims under CRE 404(b),

but we assume that those victims did not ultimately testify

concerning acquitted conduct, as their testimony is not mentioned

in either party’s briefing.

provided that the district court finds by a preponderance of the

evidence that the prior act occurred and that the evidence is

otherwise admissible under the four-part test adopted in People v.

Spoto, 795 P.2d 1314, 1318 (Colo. 1990). Kinney, 187 P.3d at 554.

f 113

In Kinney, the court concluded that, under certain

circumstances, where acquitted conduct is admitted under Rule

404(b), the defendant is entitled to have the jury instructed that he

was acquitted of the prior act. The instruction is appropriate when

“the testimony or evidence presented at trial about the prior act

indicates that the jury has likely learned or concluded that the

defendant was tried for the prior act and may be speculating as to

the defendant’s guilt or innocence in that prior trial.” Id. at 557.

f 114

We review the district court’s denial of a request for a Kinney

instruction for an abuse of discretion. Id. at 558. A district court’s

discretionary ruling will not be overturned unless it is manifestly

arbitrary, unreasonable, or unfair. Id.

H 115

Carrier argues that the Kinney rule was implicated in three

ways during the second trial: first, he says that, when the

prosecutor introduced DVDs recovered from his house during the

search, the court should have instructed the jury that the prior jury

acquitted Carrier of exploitation in connection with those DVDs;

second, he says that when A.H. and D.E. testified about the

acquitted conduct, the court should have told the jury that Carrier

was acquitted of those charges in a prior trial; and third, he says

the court should have permitted him to cross-examine officers

about the effect of acquittals in the prior trial on the subsequent

police investigation.

f 116

Analysis

The DVDs

In the first trial, seven of the sexual exploitation counts related

to Carrier’s possession of DVDs allegedly containing child

pornography. The first jury apparently disagreed that the videos

contained child pornography and acquitted Carrier of six counts.

At the second trial, the prosecutor introduced the videos under Rule

404(b). According to Carrier, the court should have instructed the

second jury that the prior jury did not believe that the videos

constituted child pornography.

f 117

We disagree that Kinney applies in this instance. Information

about a prior acquittal is relevant “for the limited purpose of

challenging the weight the jury should give the prior act evidence.”

Id. at 557. In other words, the instruction “helps the jury weigh the

evidence of the prior act and reasonably infer a greater probability

of factual innocence because the defendant was acquitted.” Id. at

556. But if the only question is whether the videos depicted child

pornography, the fact of a prior acquittal is not useful to the jury

because there is no evidence to weigh — the videos speak for

themselves. Thus, the second jury was in precisely the same

position as the first jury to evaluate the content of the videos. Cf.

McFee, Tff 76, 79 (officer’s interpretation of video was improper lay

opinion testimony because jurors were in the same, position as the

officer to evaluate the content of the video).

<1 ns

The Victims’Testimony

In the first trial, Carrier was charged with six counts related to

victim A.H. (sexual assault and unlawful sexual contact - first office

incident; sexual assault and unlawful sexual contact - second office

incident; and sexual assault and unlawful sexual contact - fitness

room incident) and six counts related to victim D.E. (sexual assault,

unlawful sexual contact, and enticement - first bed bug check;

sexual assault, unlawful contact, and enticement - second, third,

and fourth bed bug checks). With respect to A.H., Carrier was

acquitted of the counts related to the fitness room incident and the

jury could not reach a verdict on the remaining counts. With

respect to D.E., Carrier was acquitted of the counts related to the

second, third, and fourth bed bug checks, and the jury could not

reach a verdict on the remaining counts. At the second trial, those

victims testified about both charged and acquitted conduct.

f 119

Carrier contends that the court should have instructed the

jury that he was acquitted of certain acts about which the victims

testified. He says the jury likely knew about the prior trial and

would have necessarily speculated that Carrier was found guilty of

the uncharged prior acts.

| 120

A Kinney instruction is not required simply because the jury

might speculate that a prior trial occurred. An instruction is

necessary only where the jury would likely have concluded that the

defendant was previously tried for the prior act and would

necessarily speculate as to the defendant’s guilt or innocence

regarding the prior act. Kinney, 187 P.3d at 557.

If 121

Thus, in the context of this case, the court should have given

an instruction only if it determined that the jury was likely

speculating as to whether Carrier had previously been tried and

convicted for touching A.H. in the fitness room and for touching

D.E. during certain bed bug checks. Carrier offers no evidence to

suggest that the jury was speculating about the resolution of those

particular charges. Unlike in Kinney, where the juiy asked for

transcripts of the prior proceedings, here, the jury did not ask any

questions about the prior acts or request any additional evidence

related to them. And, unlike in Kinney, the testimony about those

acts made up a minuscule portion of the evidence presented during

a month-long trial. Thus, we cannot say that the court’s decision

not to instruct the jury about the acquitted conduct was manifestly

arbitrary, unreasonable, or unfair. Id. at 558.

122

Cross-Examination of the Officers Regarding Their

Investigation

Carrier argues that the court erred in precluding him from

cross -examining police officers about the acquittals in the first trial.

According to Carrier, the officers had a “motive” or “bias” following

the first trial to conduct additional investigation to obtain a more

favorable outcome at the second trial. The district court found the

proposed examination irrelevant and likely to confuse the jury.

f 123

A criminal defendant has a constitutional right under the

Confrontation Clause to cross-examine witnesses, and it is error to

excessively limit cross-examination, especially when it concerns a

witness’s bias, prejudice, or motive for testifying. People v. Chavez,

2012 COA 61, | 31. Still, “[t]he trial court must exercise its

discretion to preclude inquiries that have no probative value, are

irrelevant, or are prejudicial.” People v. Marsh, 396 P.3d 1, 18

(Colo. App. 2011) (quoting People v. Hendrickson, 45 P.3d 786, 788

(Colo. App. 2001)), affd, 2017 CO 10M.

f 124

Like the district court, we deem the earlier acquittals

irrelevant. The point Carrier was apparently trying to convey in his

questioning was that the officers did not conduct a thorough

investigation until after the first trial. The district court expressly

allowed that line of questioning.

% 125

The purpose of allowing cross-examination related to a

witness’s bias is to give the jury a fair impression of the witness’s

credibility. Id. But Carrier does not explain — and we cannot

discern — why the jury would have had a significantly different

impression of the officers’ credibility had it known that the later

investigation was motivated by the acquittals rather than a general

desire to shore up an inadequate initial investigation.

% 126

Accordingly, we conclude that the district court did not abuse

its discretion in refusing to give a Kinney instruction or otherwise

precluding evidence of the prior acquittals.

VIII. The District Court Did Not Commit Plain Error in Instructing

the Jury on Unlawful Sexual Contact

f 127

As to the charge of unlawful sexual contact (medical

examination), the court’s elemental instruction to the jury listed the

following elements:

1. That the defendant,

2. in the State of Colorado, at or about the

date and place charged,

3. knowingly subjected a person to sexual

contact, and

4. engaged in the treatment or examination of

the victim for other than bona fide medical

purposes or in a manner substantially

inconsistent with reasonable medical

practices.

I 128

Carrier contends that the instruction was an inaccurate

statement of the law because the “knowingly” mens rea did not

modify both elements three and four of the offense. According to

Carrier, the erroneous instruction would have permitted the jury to

convict him of unlawful sexual contact (medical examination) based

on his good faith, but mistaken, belief that he was conducting the

examinations for a bona fide medical purpose and consistent with

reasonable medical practices.

f 129

Standard of Review

We review jury instructions de novo to determine whether the

instructions as a whole accurately informed the jury of the

governing law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).

U 130

When the defendant fails to object to an instruction, we will

reverse only on a finding of plain error. People v. Miller, 113 P.3d

743, 749 (Colo. 2005). To obtain reversal under this standard, the

defendant must demonstrate not only that the instruction affected a

substantial right, but also that the record reveals a reasonable

probability that the error contributed to his conviction. Id. at 750.

The court’s failure to instruct the jury properly does not constitute

plain error if the relevant instruction, read in conjunction with

other instructions, adequately informs the jury of the law. Id.

«[f 131

Analysis

We conclude, for two reasons, that even if the instruction

improperly omitted a mens rea requirement from the fourth element

of the offense, the district court did not commit plain error in

instructing the jury.

f 132

First, the jury was instructed that “sexual contact” means “the

knowing touching of the victim’s intimate parts” if “that sexual

contact is for the purposes of sexual arousal, gratification, or

abuse.” Thus, to convict Carrier of unlawful sexual contact

(medical examination), the jury necessarily had to find that the

sexual contact was not for a “bona fide medical purpose,” see People

v. Terry, 720 P.2d 125, 127 (Colo. 1986) (a “bona fide medical

purpose^” means the examiner is acting in good faith and sincerely

to investigate, prevent, or cure a malady), but instead was for the

purpose of sexual arousal, gratification, or abuse,

f 133

Second, Carrier was convicted of unlawful sexual contact

(medical examination) with respect to only five victims. The juryfound that, as to each of those victims, Carrier had also committed

sexual assault on a child. The court gave an affirmative defense

instruction for the sexual assault on a child counts, instructing the

jury that the prosecution bore the burden of proving beyond a

reasonable doubt that Carrier had not subjected the victim to

sexual contact for bona fide medical purposes and in accordance

with reasonable medical practices. With respect to those five

victims, then, the jury necessarily rejected Carrier’s defense,

f 134

Thus, we conclude that the record does not reveal a

reasonable probability that the instructional error contributed to

Carrier’s convictions. Miller, 113 P.3d at 750.

IX.

f 135

The Evidence Was Sufficient to Support Carrier’s Conviction

for Sexual Exploitation of a Child

To obtain a conviction for sexual exploitation of a child, in

violation of section 18-6-403(3)(b.5), C.R.S. 2017, the prosecution

must prove beyond a reasonable doubt that the defendant

knowingly possessed or controlled any sexually exploitative

material. “Sexually exploitative material” includes any “photograph

. . . or other . . . electronically ... or digitally reproduced visual

material that depicts a child engaged in ... or being used for

explicit sexual conduct.” § 18-6-403(2)(j).

f 136

In his opening brief, Carrier argued that the prosecution had

failed to meet its burden with respect to images recovered from the

“internet cache/Web Preview” folder of his laptop computer.

According to Carrier, the prosecution had presented no evidence

that he knew about his computer’s automatic-caching function or

that he exercised control over the images that were automatically

saved as cache files.

1 137

While the appeal was pending, the supreme court issued its

decision in Marsh v. People, 2017 CO 10M, which, as Carrier

appears to concede in his reply brief, forecloses his argument.

f 138

In Marsh, f 28, the supreme court concluded that a defendant

knowingly possesses and controls child pornography for purposes

of section 18-6-403(3) when he knowingly seeks out and views child

pornography on the internet. It further concluded that cache.

images can constitute evidence that the defendant knowingly

possessed the images when he viewed them online. Id. at | 29.

f 139

The evidence demonstrated that Carrier’s internet cache

contained sexually exploitative images. The computer forensic

expert testified that the evidence found on Carrier’s hard drive and

in the computer’s cached files established that the computer’s user

had visited the membership-only child pornography website over

100 times. Accordingly, we conclude that the evidence was

sufficient to support Carrier’s sexual exploitation convictions.

% 140

Conclusion

The judgment of conviction is affirmed.

JUDGE J. JONES and JUDGE ASHBY concur.

DATE FILED: September 9, 2019

CASE NUMBER: 2018SC706

Colorado Supreme Court

2 East 14th Avenue

Denver, CO 80203,

Certiorari to the Court of Appeals, 2013CA645

District Court, El Paso County, 2011CR1695

Petitioner:

Supreme Court Case No:

2018SC706

Joshua Dwayne Carrier,

Respondent:

The People of the State of Colorado.

ORDER OF COURT

Upon consideration of the Petition for Writ of Certiorari to the Colorado

Court of Appeals and after review of the record, briefs, and the judgment of said

Court of Appeals,

IT IS ORDERED that said Petition for Writ of Certiorari shall be, and the

same hereby is, DENIED.

BY THE COURT, EN BANC, SEPTEMBER 9,2019.

Additional material

from this filing is

available in the

Clerk's Office.

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