People v. Ortiz.

2026 COA 75. No. 23CA0606. Required Notice of Alibi Defense—Defendant’s Alibi Testimony—Standard of Reversal—Harmless Error—Sufficiency of Evidence—Right to Counsel—Prosecutorial Misconduct—Competency.

October 29, 2026

Ortiz was charged with enticement of a child, two counts of sexual assault on a child as a pattern of abuse, two counts of internet sexual exploitation of a child, and two counts of sexual exploitation of a child (possession with intent to distribute) for conduct involving victim B.B. Twenty-one days before trial, Ortiz filed a notice of alibi. The notice didn’t state the address where Ortiz claimed to have been at the time of the offenses or the names and addresses of any alibi witnesses Ortiz intended to call. At a hearing, the prosecutor objected to Ortiz’s notice of alibi, arguing that the notice was untimely and, even if timely, didn’t comply with Crim. P. 16(II)(d)’s disclosure requirements. The court precluded Ortiz’s alibi testimony. Ortiz was found guilty on all counts and was sentenced to an indeterminate sentence of 20 years to life in the custody of the Department of Corrections and consecutive determinate sentences of 10 years and six years.

On appeal, Ortiz argued that the trial court violated his right to testify and present a defense by finding that his alibi disclosure notice was untimely and thus precluding his alibi testimony. He maintained that he could provide alibi testimony without following the disclosure requirements of CRS § 16-7-102 and Rule 16(II)(d). Rule 16(II)(d) requires defendants who intend to introduce evidence that they were at a location other than that of the offense to give the prosecution notice stating where they claim to have been, and the names and addresses of witnesses they will call to support such alibi defense. Such notice must be given no later than 35 days before trial, and failure to provide the required information could result in exclusion of the evidence unless good cause is shown for its admission. However, People v. Hampton, 696 P.2d 765, 775 (Colo. 1985) (Hampton I), held that (1) the rule doesn’t facially curtail an accused’s right to present evidence in defense of the charges; (2) the disclosure requirement doesn’t apply to the defendant as an alibi witness; and (3) the exclusion sanction doesn’t apply to the defendant’s alibi testimony. Ortiz’s own testimony would thus be outside the statute and rule. Accordingly, the trial court misapplied the disclosure requirement rule by precluding Ortiz from presenting his own alibi testimony. As a matter of first impression, the court of appeals determined that the constitutional harmless error standard applies when a defendant is prevented from testifying as an alibi witness. The court concluded that based on the evidence, there wasn’t a reasonable possibility that any error the trial court may have committed by precluding Ortiz from testifying as an alibi witness contributed to his conviction. Accordingly, any error wasn’t reversible.

Ortiz also contended that the trial court abused its discretion by excluding the defense investigator from being an alibi witness. But the record supports the trial court’s decision to exclude the investigator’s alibi testimony as a sanction for noncompliance with the disclosure requirements.

Ortiz further asserted that there was insufficient evidence to support count 6, sexual exploitation of a child (possession with intent to distribute), because his former counsel’s possession of sexually exploitative material—sent to him by Ortiz—in the performance of his official duties was lawful. Here, the prosecution presented sufficient evidence to support Ortiz’s conviction for the counts involving the video because the evidence showed that Ortiz knowingly possessed a nude video of B.B. and emailed it to Thompson. Accordingly, the jury could have reasonably concluded that Ortiz knowingly possessed sexually exploitative material with the intent to distribute it.

Ortiz also contended that the trial court violated his right to counsel by allowing the prosecution to call his former defense attorneys as witnesses and by introducing privileged communications at trial. Here, the trial court erred by not following the two-step process outlined in In re 2015–2016 Jefferson County Grand Jury, 2018 CO 9, for determining whether the crime-fraud exception to the attorney-client privilege applied and ordering a limited waiver of the attorney-client privilege. Further, the error wasn’t harmless as it pertains to counts 6 and 7. The former defense attorneys were the only witnesses to testify against Ortiz on these counts, so the erroneous ruling allowed their testimony to substantially influence the jury’s verdict on those counts.

Ortiz also argued that the trial court erred by allowing improper and unreliable DNA expert testimony. However, the expert’s testimony accurately described the methodology she used, and her testimony helped the jury evaluate the DNA evidence, so there was no error in admitting this evidence.

Ortiz additionally contended that the prosecutor committed misconduct during closing and rebuttal arguments. While some of the prosecutor’s arguments may have been imprecise or improper, given the context of the arguments as a whole and the evidence before the jury, they didn’t deprive Ortiz of a fair trial. Thus, there was no plain error.

Ortiz also maintained that the trial court erred by not sua sponte making findings on his competency at trial. He asserted that the trial court had reason to believe he was incompetent to proceed based on two pro se pleadings he filed two years before trial indicating his delusional and paranoid beliefs about the case. But the record does not reasonably suggest that Ortiz couldn’t understand the nature and course of the proceedings or couldn’t assist with his defense or cooperate with defense counsel. Accordingly, the trial court didn’t err.

Lastly, Ortiz argued that cumulative error warrants reversal. However, the errors identified here are not sufficient to constitute cumulative error that requires reversal.

Ortiz’s convictions for counts 6 and 7 were reversed and the case was remanded for a new trial on those counts. The judgment was affirmed in all other respects.