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People v. Martinez.

2020 COA 141. No. 17CA1583. Criminal Law—Victim Impact Evidence—Prosecutorial Misconduct—Expert Testimony—Theory of Defense Instruction.

October 8, 2020

A.R. spent a night drinking at a bar. When she woke up the next morning in her home she was obviously injured but did not recall most of the events of the previous evening. A.R. went to the hospital for a sexual assault examination, and DNA obtained during the examination matched that of defendant. A jury found defendant guilty of sexual assault on a victim incapable of appraising the nature of her conduct.

On appeal, defendant argued that the district court erred by admitting irrelevant and highly prejudicial victim impact evidence regarding A.R.’s depression and close suicidal scare and failing to grant his motion for a mistrial after the jury heard the evidence. Victim impact evidence is evidence relating to a victim’s personal characteristics and the physical, emotional, or social impact of a crime on its victim and the victim’s family. Victim impact evidence is admissible only if it tends to show the circumstances or the context of the crime. Here, the testimony of A.R. and her mother described the toll that the sexual assault took on A.R. and thus constituted victim impact evidence. However, the prosecutor did not show that the victim impact evidence made any material fact or element of the offense more or less probable. Therefore, the victim impact evidence was not relevant to determining whether defendant committed the crime charged and had the potential to shift the jury’s focus improperly from deciding whether defendant committed the crime to whether a guilty verdict would assuage A.R.’s trauma. Therefore, the trial court erred, but the error was harmless in light of the overwhelming evidence of defendant’s guilt. And because defendant failed to show that he was substantially prejudiced by the admission of the victim impact evidence, the district court did not abuse its discretion in denying his motion for a mistrial.

Defendant also contended that the district court committed reversible error by allowing the prosecutor to present a generic tailoring argument during closing that created an unjustifiable inference of guilt based solely on defendant’s presence at trial. A prosecutor may make specific tailoring arguments but not generic tailoring arguments. Here, although the prosecutor argued that defendant tailored his testimony to fit other witnesses’ testimony, the prosecutor tied her argument to evidence in the record. Therefore, the prosecutor did not use a generic tailoring argument and the trial court did not err.

Defendant further contended that the district court plainly erred by permitting the prosecutor to elicit expert testimony from the detective without designating or qualifying the detective as an expert witness. Here, the prosecutor elicited testimony regarding the detective’s background, training, and experience but did not seek to qualify him as an expert witness. The detective testified about the type and extent of injuries resulting from a sexual assault and a victim’s demeanor during a police interview following a sexual assault. This testimony required specialized experience, knowledge, or training, so the detective’s opinions amounted to impermissible expert testimony and was improper. However, given the detective’s qualifications, defense counsel’s failure to object to the testimony, and the overwhelming evidence of guilt, the admission of the testimony did not constitute plain error.

Defendant also asserted that the district court erred by refusing to give the jury his tendered theory of defense instruction. Because defendant’s proposed instruction was argumentative, the district court did not abuse its discretion by rejecting and modifying this instruction.

Defendant further contended that the trial court’s cumulative errors deprived him of a fair trial. Although the Court of Appeals identified two errors, there was no reversible cumulative error because those errors did not substantially prejudice defendant’s right to a fair trial.

Lastly, defendant’s constitutional challenge to the Colorado Sex Offender Lifetime Supervision Act (SOLSA) was rejected due to his failure to explain how SOLSA violated his constitutional rights and how the divisions that previously addressed this issue erred.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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