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People v. Salazar.

2023 COA 102. No. 22CA0331. Jury Instructions—Sexual Assault on a Child by One in a Position of Trust—Statutory Elements—Knowingly—Position of Trust—CRE 404(a)—Testimony Regarding Probable Cause—Prosecutorial Misconduct.

November 2, 2023

Salazar was charged with multiple offenses based on his sexual abuse of two 15-year-old boys. As relevant here, the trial court instructed the jury on sexual assault on a child by one in a position of trust and on the statutory definition of “knowingly” as well as the meaning of one in a “position of trust.” The jury returned guilty verdicts on four position of trust counts.

On appeal, Salazar argued that the trial court erred by failing to instruct the jury that the culpable mental state of “knowingly” applies to the position of trust element of the offense of sexual assault on a child by one in a position of trust. “Knowingly” presumptively applies to every element of an offense when a statute prescribes this mental state. However, in CRS § 18-3- 405.3(1), “knowingly” appears in an independent clause defining the conduct constituting sexual assault on a child by one in a position of trust, while the position of trust element is offset by the conjunction “if” and appears in a different clause. Therefore, “knowingly” does not apply to the position of trust element. Here, the trial court’s instruction accurately tracked the statutory language concerning the position of trust element, so there was no error.

Salazar also contended that the trial court violated CRE 404(a) by admitting part of his recorded interrogation video that indicated his bad character for liking “younger guys” and having “cravings.” Here, any error was harmless given other admitted evidence that Salazar did not challenge on appeal, including his confession to sexual contact with the victims, which corroborated the victims’ testimony, text messages, and videos.

Salazar further asserted that the trial court erred by permitting improper testimony about the police having probable cause to arrest him. When probable cause to arrest the defendant is not at issue, it is generally improper to present evidence about obtaining an arrest warrant or possessing probable cause. However, the testimony here was brief and lacked detail, the prosecutor did not mention probable cause during closing argument, and the court gave an instruction limiting the jury’s use of the arrest evidence. Accordingly, the alleged error did not substantially influence the verdict or impair the fairness of the trial and was harmless.

Salazar further argued that the trial court erred by failing to address prosecutorial misconduct during closing arguments. Salazar maintained that the prosecutor improperly appealed to the jurors’ passions or prejudices, pressuring them to find Salazar guilty. Prosecutors may not use arguments calculated to inflame the passions and prejudices of the jury. Here, the premise of the prosecutor’s arguments was that the jury should convict Salazar if the jury believed the victims, but the prosecutor did not argue that the jury should convict Salazar regardless of whether it believed the victims but solely to do justice. Therefore, the prosecutor’s arguments, overall, were based on the evidence rather than emotion, and the prosecutor’s argument was not so egregious as to constitute plain error.

The judgment was affirmed.

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

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