     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                         September 20, 2018

                               2018COA131

No. 15CA0210, People v. Aldridge — Criminal Law — Trials —
Witnesses — Use of Closed Circuit Television

     The People moved for child witnesses under the age of twelve

to testify, from another courtroom, outside the defendant’s presence

using closed-circuit television under section 16-10-402, C.R.S.

2017. Over the defendant’s objection, the trial court granted that

motion. At trial, rather than having the witnesses testify from

another room, the trial court permitted the children to testify in the

courtroom while the judge and the defendant watched from the

judge’s chambers. The jury could not see or hear the defendant

during the children’s testimony. A division of the court of appeals

concludes that the procedure violated the defendant’s due process

right to be present because the defendant was denied any

opportunity to exert a psychological influence on the jury.
     The division also addresses, to the extent the issues are likely

to arise on remand, the defendant’s claims that (1) the prosecutor

improperly bolstered the alleged victims’ credibility, (2) evidence was

improperly admitted, and (3) the trial court erred in ordering ten

consecutive sentences.

     Accordingly, the division reverses the judgment of conviction

and sentence.
COLORADO COURT OF APPEALS                                      2018COA131


Court of Appeals No. 15CA0210
Chaffee County District Court No. 13CR113
Honorable Charles M. Barton, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Joseph Aldridge,

Defendant-Appellant.


                       JUDGMENT AND SENTENCE REVERSED
                      AND CASE REMANDED WITH DIRECTIONS

                                     Division I
                           Opinion by JUDGE TAUBMAN
                          Bernard and Welling, JJ., concur

                          Announced September 20, 2018


Cynthia H. Coffman, Attorney General, Paul Koehler, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    This case presents the issue of the intersection of two

 constitutional rights ― a defendant’s right to confront the witnesses

 against him or her and the defendant’s right to be present at all

 critical stages of a trial. With adequate findings, the former right

 may yield in a sexual assault case to allow child witnesses to testify

 in a different room from the defendant, while the latter requires that

 the defendant and the jury be located in the same room. Here, the

 trial court implemented the exception to the right to confrontation

 of defendant, Robert Joseph Aldridge, by separating him from the

 alleged child victims. However, we hold that it did so at the expense

 of Aldridge’s right to be present during their testimony, by requiring

 that Aldridge be excluded from the courtroom and requiring him to

 watch the children’s testimony from the judge’s chambers, along

 with the judge, outside the presence of the jury. Accordingly, we

 reverse Aldridge’s judgment of conviction and sentence, and remand

 for a new trial.

                            I. Background

¶2    C.O. and L.A. spent about three weeks camping alone with

 Aldridge, their maternal grandfather, during the summer of 2013.

 At the time, C.O. was four years old and L.A. was nine years old.


                                    1
¶3    A few days after she was picked up from Aldridge’s campsite,

 C.O. told her aunt that she had seen and touched Aldridge’s

 “pecker.” The aunt later questioned L.A., who eventually confirmed

 C.O.’s allegations. During separate forensic interviews, C.O. did not

 report any sexual contact with her grandfather, but L.A. stated that

 both girls had touched Aldridge’s penis during the camping trip and

 that it got stiff. As a result of the allegations, the People charged

 Aldridge with two counts of sexual assault on a child by one in a

 position of trust as part of a pattern of abuse, two counts of sexual

 assault on a child as part of a pattern of abuse, four counts of

 sexual assault on a child by one in a position of trust—victim under

 fifteen, four counts of sexual assault on a child, and two counts of

 aggravated incest.

¶4    At trial, the defense argued that Aldridge was physically

 incapable of obtaining an erection because he had undergone a

 prostatectomy as part of his cancer treatment and that strained

 family dynamics resulted in the alleged victims’ false accusations.

 A jury found Aldridge guilty as charged. The trial court sentenced

 him to 116 years to life in the custody of the Department of

 Corrections.


                                    2
¶5    On appeal, Aldridge contends that the trial court erred by (1)

 excluding him from the courtroom while C.O. and L.A. testified; (2)

 permitting witnesses and the prosecutor to improperly bolster the

 alleged victims’ credibility; (3) allowing a detective to give expert

 testimony that children’s clothing found in Aldridge’s motor home

 may have been an “erotic trigger”; and (4) imposing ten consecutive

 sentences for four acts. We agree with his first contention and

 reverse on that basis.

                     II. Exclusion From Courtroom

¶6    Aldridge contends that the trial court violated his right to be

 present by excluding him from the courtroom when the alleged

 victims testified, and that the error requires reversal. We agree.

                           A. Additional Facts

¶7    Before trial, the People moved for C.O. and L.A. to testify by

 closed-circuit television (CCTV) under section 16-10-402, C.R.S.

 2017. Specifically, the People asked that the children be permitted

 “to testify outside the presence of the defendant, in a separate

 courtroom.” The People further represented that CCTV capability

 existed between the two courtrooms in the county courthouse.




                                     3
¶8     In a written objection, Aldridge argued that allowing the

  children to testify outside of his presence violated his “due process

  right to [be] present during critical stages of the proceedings.” He

  argued that “[t]he right to be present isn’t satisfied by watching

  your own trial on TV, even if you are watching it in the company of

  the judge.”

¶9     During a motions hearing, the defense primarily argued that

  the People had not proved that requiring the children to testify in

  Aldridge’s presence would cause them serious emotional distress.

  The defense also reiterated that it had constitutional concerns that

  had been addressed in its objection. The trial court granted the

  People’s motion. Neither the trial court nor the parties indicated at

  the hearing that Aldridge, rather than the children, would be

  removed from the courtroom.

¶ 10   At the close of the first day of trial and outside the presence of

  the jury, the trial court explained that the judge, Aldridge, and an

  investigator from the public defender’s office would watch the

  children’s testimony from the judge’s chambers while the children




                                     4
  testified in the courtroom.1 The trial court instructed that, if

  Aldridge needed to communicate with defense counsel during the

  children’s testimony, the investigator would relay his comments via

  an instant messaging system.

¶ 11   The following morning, the People requested that the

  children’s mother be permitted to stay in the courtroom during their

  testimony under section 16-10-402(2)(a)(V). Instead, the trial court

  allowed the children’s aunt to stay. When asked for its position on

  permitting the aunt to remain in the courtroom, the defense stated

  that it was “objecting to the whole procedure.”

¶ 12   Before the children testified, the trial court and Aldridge tested

  the CCTV setup outside the jury’s presence. Aldridge confirmed

  that he was “seeing the picture,” but stated that it was “not like



  1 The record does not reveal, and the parties do not explain,
  precisely when the trial court adopted this procedure. However, at
  a pretrial hearing less than a week before trial, the trial court
  represented that court staff had been exploring whether the closed-
  circuit “television advisement system might be configured to
  address the child witnesses.” The prosecutor suggested that,
  assuming the CCTV did not work, the “best [alternative] [she] had
  was to screen the defendant off . . . while the children testified in
  the same room.” At the close of that hearing, the trial court said
  that it would continue to work on the CCTV technology.


                                     5
  looking at a person. It [was] bouncy or . . . . It[ was] like something[

  was] lagging.” After a break off the record, the court clerk reported,

  “All of our testing is normal.” However, Aldridge then said that he

  had had some trouble hearing his counsel and the prosecutor.

¶ 13   When the jury re-entered the courtroom, Aldridge was in the

  judge’s chambers. The jury could not see or hear him. Before the

  trial court judge left the courtroom, he explained:

             The Court -- the way the next two witnesses,
             who are going to be the children, are going to
             testify is under the Provisions of the Statute.
             There is separation -- it calls for separation
             between the child and the Defendant.

             In order to do that, the child -- or children, are
             going to testify from the witness stand here.
             Mr. Aldridge and I will be in my chambers.
             And we are going to be on a computer video
             system.

             There’s a camera in this, this computer. And
             so, it’s, it’s one-way. It will show into
             chambers, the witness, and we will be able to
             hear.

             The witness will be able to hear. Everyone in
             the courtroom, of course, and we will be able
             to hear everyone in the courtroom.

             The witness won’t be able to see us in
             chambers. We’re hoping this works as well as
             it can. There may be some interruptions.



                                     6
               Our IT people from the [State Court]
               Administrator’s Office and a private vendor,
               we’ve worked on this for days. I think we’ve
               got it pretty well.

  The judge also explained that he would be able to communicate into

  the courtroom over a microphone.

¶ 14   C.O. testified first. In response to the prosecutor’s questions,

  she initially testified that she did not know anyone named “Grandpa

  Joe” or “Grandpoo” — her nicknames for Aldridge — and that her

  mother’s dad was dead. The trial court called for a brief recess and,

  once the jury had left, told defense counsel and the prosecutor that

  Aldridge was “having an emotional meltdown” based on C.O.’s

  testimony.

¶ 15   After a break, the trial court resumed C.O.’s testimony, during

  which Aldridge and the judge remained in the judge’s chambers.

  C.O. testified that she had touched Aldridge’s “pecker” and that it

  was hard, but that L.A. had not touched Aldridge’s penis. L.A.

  testified that Aldridge had made her sister “play with his private

  spot,” but that L.A. had not touched his penis. At various points

  during L.A.’s testimony, the trial court said that it was having

  difficulty hearing her.



                                      7
                B. Preservation and Standard of Review

¶ 16   “Whether a trial court violated a defendant’s right to be

  present is a constitutional question that is reviewed de novo.”

  People v. Wingfield, 2014 COA 173, ¶ 13, 411 P.3d 869, 872.

¶ 17   The People urge us to consider the error unpreserved, and

  therefore to review for plain error, because in their view (1)

  Aldridge’s written objection contained only a “cursory” reference to

  his right to be present and (2) the defense stood on its prior

  objection when it became clear the trial court was envisioning

  having the children testify in the courtroom while Aldridge observed

  from chambers. We disagree on both counts.

¶ 18   First, we consider Aldridge’s argument based on his right to be

  present in his objection sufficient to “put the trial court on notice of

  his position” and give it an opportunity to avoid the error. People v.

  Pahl, 169 P.3d 169, 183 (Colo. App. 2006). Moreover, Aldridge

  continued to object to the trial court’s proposed procedure on

  various grounds, and reiterated that he stood on his original

  objection. We consider these actions sufficient to preserve this

  contention. See People v. Pratt, 759 P.2d 676, 685 n.5 (Colo. 1988);

  see also Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31


                                     8
  (Colo. 1986) (objections made in motion in limine constituted a

  timely objection).

¶ 19    We review preserved constitutional errors for constitutional

  harmless error, reversing if “there is a reasonable possibility that

  the [error] might have contributed to the conviction.” Hagos v.

  People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119 (quoting Chapman v.

  California, 386 U.S. 18, 24 (1967)). The People bear the burden of

  proving that the error was harmless beyond a reasonable doubt.

  Id.; see also Luu v. People, 841 P.2d 271, 274-75 (Colo. 1992)

  (characterizing deprivation of the right to be present as a trial

  error).

                            C. Applicable Law

                          1. Right to Be Present

¶ 20    A defendant has a constitutional right to be present at his or

  her criminal trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II,

  § 16; Luu, 841 P.2d at 275; People v. Ragusa, 220 P.3d 1002, 1009

  (Colo. App. 2009); see also Crim. P. 43(a) (stating that a defendant

  has the right, subject to limited exceptions, to be present “at every

  stage of the trial”).




                                     9
¶ 21     The right to be present is rooted in part in the Confrontation

  Clauses of the United States and Colorado Constitutions. U.S.

  Const. amend. VI; Colo. Const. art. II, § 16 (“In criminal

  prosecutions the accused shall have the right to . . . meet the

  witnesses against him face to face . . . .”); see United States v.

  Gagnon, 470 U.S. 522, 526 (1985). These clauses protect the

  defendant’s “right to be present at trial to secure the opportunity for

  full and effective cross-examination of witnesses.” Luu, 841 P.2d at

  275.

¶ 22     The Due Process Clause, however, affords defendants the right

  to be present in situations where the Confrontation Clause is not

  implicated. See Gagnon, 470 U.S. at 526 (stating that the right to

  be present is rooted in due process principles “in some situations

  where the defendant is not actually confronting witnesses or

  evidence against him”). “[D]ue process clearly requires that a

  defendant be allowed to be present ‘to the extent that a fair and just

  hearing would be thwarted by his absence.’” Kentucky v. Stincer,

  482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291

  U.S. 97, 108 (1934)). Thus, the Due Process Clause protects a

  defendant’s right to be present at all “critical” stages of his or her


                                     10
  trial. Id. “A critical stage of criminal proceedings is one where there

  exists more than a minimal risk that the absence of the defendant

  might impair his or her right to a fair trial.” People v. Cardenas,

  2015 COA 94M, ¶ 22, 411 P.3d 956, 963.

          2. Section 16-10-402 and the Confrontation Clause

¶ 23   A Colorado statute provides a mechanism by which witnesses

  under the age of twelve can testify “in a room other than the

  courtroom and be televised by closed-circuit television [CCTV] in the

  courtroom.” § 16-10-402(1)(a). Several conditions must be met

  before a child witness can testify by CCTV under this statute,

  including a determination by the trial court “that testimony by the

  witness in the courtroom and in the presence of the defendant

  would result in the witness suffering serious emotional distress or

  trauma such that the witness would not be able to reasonably

  communicate.” § 16-10-402(1)(a)(II).

¶ 24   Under section 16-10-402(2)(a), only specified people may be in

  the room with the child witness when he or she testifies by CCTV ―

  the prosecutor, defense counsel, the child’s guardian ad litem,

  operators of the CCTV equipment, “[a] person whose presence, in

  the opinion of the court, contributes to the welfare and well-being of


                                    11
  the witness,” and the jury. § 16-10-402(2)(a)(I)-(VI). “During the

  witness’s testimony by closed-circuit television, the judge and the

  defendant, if present, shall remain in the courtroom.” § 16-10-

  402(2)(b); see also § 16-10-402(2)(c) (“The judge and the defendant

  shall be allowed to communicate with the persons in the room

  where the witness is testifying by an appropriate electronic

  method.”). However, the statute does not “preclude the removal of

  the defendant, rather than the witness, from the courtroom upon

  the stipulation of both parties and the approval of the court.” § 16-

  10-402(5) (emphasis added).

¶ 25   This provision provides a narrow statutory exception to the

  requirements of the Confrontation Clauses. U.S. Const. amend. VI;

  Colo. Const. art. II, § 16. In Maryland v. Craig, the Supreme Court

  upheld a similar law, concluding,

             where necessary to protect a child witness
             from trauma that would be caused by
             testifying in the physical presence of the
             defendant, at least where such trauma would
             impair the child’s ability to communicate, the
             Confrontation Clause does not prohibit use of
             a procedure that, despite the absence of face-
             to-face confrontation, ensures the reliability of
             the evidence.




                                    12
  497 U.S. 836, 857 (1990). Thus, the Court in Craig held that the

  Confrontation Clause does not “categorically prohibit[] a child

  witness . . . from testifying against a defendant at trial, outside the

  defendant’s physical presence, by one-way closed circuit television.”

  Id. at 840; see also People v. Phillips, 2012 COA 176, ¶¶ 51, 59, 315

  P.3d 136, 150, 153 (concluding that there was no violation of

  defendant’s federal or state confrontation rights when child testified

  by CCTV from another room under section 16-10-402). However, in

  Craig, the Maryland statute at issue provided for “the child witness,

  prosecutor, and defense counsel [to] withdraw to a separate room;

  the judge, jury, and defendant remain in the courtroom.” Craig,

  497 U.S. at 841. Because the defendant along with the judge and

  jury, remained in the courtroom in Craig, the Court had no need to

  consider whether the procedure violated the defendant’s right to be

  present. See id. at 842 (“Craig objected to the use of the procedure

  on Confrontation Clause grounds . . . .”).

                               D. Analysis

¶ 26   Aldridge contends that the trial court erred in excluding him

  from the courtroom during the alleged victims’ testimony. We

  agree.


                                     13
¶ 27   At the outset, the People concede that the trial court “did not

  strictly comply” with the procedure set forth in section 16-10-402.

  Although the statute does not preclude the removal of the

  defendant from the courtroom upon the stipulation of both parties

  and the approval of the court, it is undisputed that Aldridge did not

  stipulate to his removal in this case. Because the People initially

  moved for the witnesses to testify from another courtroom by CCTV,

  it is not clear whether the People stipulated to the procedure used.

  Indeed, the record does not indicate when the trial court announced

  the procedure it adopted, or the People’s response, especially given

  their request to have the children testify in another courtroom, with

  Aldridge remaining in the courtroom.2 Thus, we conclude that the




  2 The record suggests that the trial court used the procedure here
  due to technological difficulties in having the children testify from
  another room and televising their testimony in the courtroom. To
  the extent the People suggested at oral argument that section 16-
  10-402, C.R.S. 2017, permits a trial court to remove a defendant
  from the courtroom during a child’s in-court testimony if there are
  difficulties in setting up CCTV equipment (or no CCTV equipment at
  all), we disagree. One prerequisite to invoking the procedure in that
  statute is that “[c]losed-circuit television equipment is available for
  such use.” § 16-10-402(1)(a)(III). If that equipment is not available
  (or suitable to comply with the statute), neither party can move to


                                    14
  trial court’s decision to remove Aldridge from the courtroom rather

  than permit the witnesses to testify by CCTV from another room ran

  afoul of the statutory provision.3

¶ 28   Our determination is in accord with the division’s analysis in

  People v. Rodriguez, 209 P.3d 1151 (Colo. App. 2008), aff’d by an

  equally divided court, 238 P.3d 1283 (Colo. 2010). There, the

  division concluded that the trial court erred by removing the

  defendant during a child’s testimony without adhering to the

  procedure set forth in section 16-10-402, though the division also

  concluded that the error was harmless. Id. at 1158. In Rodriguez,

  like here, “the parties did not stipulate to defendant’s, instead of

  [the witness’s], removal from the courtroom.” Id. at 1157; see also

  id. (concluding that the trial court also erred by “not providing an




  have a child testify from outside the courtroom, and the trial court
  cannot order such a procedure on its own motion.
  3 It is unclear from the record whether the trial court otherwise

  complied with the requirements of section 16-10-402(2)(a) by
  allowing only those authorized by the statute to remain in the
  courtroom. Although the parties and the trial court discussed
  section 16-10-402(2)(a)(V), and the trial court ruled that the
  children’s aunt could remain in the courtroom when they testified,
  the record does not indicate whether the trial court excluded other
  spectators.


                                       15
  electronic method of communication between defendant and her

  counsel”).

¶ 29   We further conclude that the procedure here violated

  Aldridge’s constitutional right to be present under the Due Process

  Clause. In other contexts, divisions of this court have concluded

  that a defendant’s removal or absence from the courtroom during a

  trial court’s communications with the jury violated the defendant’s

  due process right to be present during a critical stage of trial. See,

  e.g., People v. Payne, 2014 COA 81, ¶ 20, 361 P.3d 1040, 1044

  (defendant’s absence when trial court read modified Allen jury

  instruction violated right to be present). These cases have

  acknowledged that the defendant’s in-court presence “can have a

  psychological impact on the jury that may benefit the defendant.”

  Id. at ¶ 12, 361 P.3d at 1043; see also Larson v. Tansy, 911 F.2d

  392, 395-96 (10th Cir. 1990) (“[O]n the issue of defendant’s absence

  from jury instructions, closing arguments, and the rendition of the

  verdict, we hold that defendant was deprived of his due process

  right to exert a psychological influence upon the jury . . . .”). Thus,

  implicit in the defendant’s due process right to be present is the

  defendant’s right to be present in the same room as the jury. Cf.


                                    16
  People v. Lujan, 2018 COA 95, ¶ 11, ___ P.3d ___, ___ (concluding

  that the defendant’s right to a public trial was violated when the

  trial court answered the jury’s questions during deliberation in the

  absence of the parties, contrary to “proper court practices that

  place the jury and parties together”).

¶ 30   Here, Aldridge was removed from the courtroom during a

  particularly critical phase of the trial — namely, the alleged victims’

  testimony. The jury could not see Aldridge when that testimony

  was taken. Thus, the procedure violated not only the statutory

  provision, but also Aldridge’s due process right to be present at his

  own trial because he was denied any opportunity to exert

  psychological influence on the jury.4




  4 Section 16-10-402(2)(a)(VI) authorizes, but does not require, the
  jury to be in the room with the child witness when he or she
  testifies by CCTV. The statute therefore appears to permit a
  procedure in which the defendant remains in the courtroom with
  the judge, while the prosecutor, defense counsel, and the jury are in
  another room with the child witness. We note that such a
  procedure may well raise the same due process concerns we
  address here because in that scenario the defendant would
  similarly be denied the opportunity to exert any psychological
  influence on the jury. However, Aldridge did not challenge the
  constitutionality of section 16-10-402(2)(a)(VI) in the trial court or


                                    17
¶ 31   Nevertheless, the People maintain that the procedure used

  here did not violate Aldridge’s constitutional rights because the

  evidence was sufficiently reliable under Craig, 497 U.S. at 857. We

  are not persuaded. In Craig, the Supreme Court addressed whether

  allowing a child witness to testify by CCTV from outside the

  courtroom violated a defendant’s right to confront the witness. See

  generally id. at 856-58. Thus, Craig is distinguishable because

  here, the defendant was removed from the courtroom and alleges

  that the procedure offended his right to be present (not just his

  right to confront the witnesses).

¶ 32   As Aldridge asserts, multiple courts have held that the removal

  of the defendant from the courtroom during a child witness’s

  testimony constitutes error. See, e.g., Price v. Commonwealth, 31

  S.W.3d 885, 894 (Ky. 2000) (holding that defendant’s removal from

  the courtroom to watch witness’s testimony over CCTV, without

  means of continuous audio contact with defense counsel, violated

  not only statute, but also defendant’s right to be present); People v.




  on appeal, and we therefore express no opinion on the validity of
  that provision if implemented in such a fashion.


                                      18
  Krueger, 643 N.W.2d 223, 225-26 (Mich. 2002) (concluding

  defendant’s removal violated state statute). We join that authority.

¶ 33   In sum, Aldridge’s exclusion from the courtroom during the

  children’s testimony, in the absence of a stipulation, violated

  section 16-10-402 and his due process right to be present.

                   E. Constitutional Harmless Error

¶ 34   We review for constitutional harmless error. Under that

  standard, we conclude the error requires reversal because the

  People have not demonstrated that it was harmless beyond a

  reasonable doubt.

¶ 35   As noted, in Rodriguez, the division concluded that

  defendant’s erroneous removal from the courtroom did not require

  reversal. 209 P.3d at 1155. There, defense counsel generally

  “expressed concern” about separating the defendant and the

  witness during testimony, but “was noncommittal about whether, if

  a closed-circuit television procedure were utilized, the witness or

  defendant should remain in the courtroom.” Id. Thus, the division

  considered it “not altogether evident” that the defendant had

  preserved any objection to her removal. Id. at 1156.




                                    19
¶ 36    In any event, the Rodriguez division concluded that the error

  there was harmless beyond a reasonable doubt for two reasons. Id.

  at 1158. First, the child witness’s testimony in Rodriguez was

  consistent with the defendant’s theory of the case — the defendant

  did not contest her role in inflicting abuse on the child, but rather

  argued that she acted under duress. Id. at 1159. Second, the

  defendant did not demonstrate that the lack of ability to

  communicate with her counsel impaired her defense. Id. at 1158-

  59; see also id. at 1159 (noting that trial counsel “made no record

  below regarding what additional facts he could have inquired about

  if he had been permitted constant electronic contact with his

  client”).

¶ 37    Here, the People do not contend that any error is rendered less

  significant by virtue of Aldridge’s ability to communicate

  electronically with his counsel during the children’s testimony.

¶ 38    More significantly, unlike in Rodriguez, the children’s

  testimony here was crucial evidence against Aldridge and ran

  directly contrary to his theory of the case. Especially because the

  alleged victims offered shifting accounts of the assaults and there

  was no physical evidence, there is at least a reasonable possibility


                                    20
  that the error here contributed to Aldridge’s convictions. Accord

  People v. Relaford, 2016 COA 99, ¶ 44, 409 P.3d 490, 498 (noting

  that evidentiary errors have been considered reversible in cases

  where there was no physical evidence of, or third-party eyewitness

  testimony to, alleged sexual assaults).

¶ 39   We also disagree with the People’s contention that there is no

  authority that gives a criminal defendant the right to have the jury

  observe his or her reaction to witnesses’ testimony. As discussed,

  the division in Payne concluded that a defendant has a due process

  right to be present in part “because of the psychological influence

  his absence or presence may have on the jury.” ¶ 18, 361 P.3d at

  1044. Here in particular, Aldridge’s absence during the children’s

  testimony may well have been prejudicial because the jury was

  prevented from observing the extent of his “emotional meltdown” in

  reaction to C.O.’s testimony. Because the jury could not see

  Aldridge, he was unable to “exert[] any psychological influence” on

  it. Larson, 911 F.2d at 396.

¶ 40   Accordingly, we conclude that the judgment of conviction must

  be reversed because Aldridge’s erroneous exclusion from the




                                   21
  courtroom during the children’s testimony was not harmless

  beyond a reasonable doubt.

                          III. Other Contentions

¶ 41   We briefly address Aldridge’s remaining contentions to provide

  guidance on remand.

                         A. Credibility Bolstering

¶ 42   Aldridge contends that the trial court erred in permitting

  testimony and argument bolstering the alleged victims’ credibility.

¶ 43   Because the precise testimony and argument are unlikely to

  arise in the same context on remand, we do not address each

  alleged instance of improper bolstering. However, we note two

  general principles relevant to Aldridge’s contention: (1) neither lay

  nor expert witnesses may give opinion testimony that another

  witness was telling the truth on a specific occasion; and (2) it is

  impermissible for the prosecutor to express a personal opinion

  about the veracity of a witness. See Liggett v. People, 135 P.3d 725,

  732 (Colo. 2006) (“[A]sking a witness to opine on the veracity of

  another witness is prejudicial, argumentative, and ultimately

  invades the province of the fact-finder.”); Domingo-Gomez v. People,

  125 P.3d 1043, 1050 (Colo. 2005) (“[P]rosecutorial remarks that


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  evidence personal opinion, personal knowledge, or inflame the

  passions of the jury are improper.”). See generally People v.

  Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (discussing case law on

  testimony regarding child victim’s believability and credibility).

                        B. Detective’s Testimony

¶ 44   Aldridge contends that the trial court erred in allowing a

  detective to offer expert testimony that girls’ underwear found in

  Aldridge’s motor home could have been an “erotic trigger.” He

  argues that the testimony had little or no probative value and was

  highly prejudicial, and that he was deprived of an opportunity to

  effectively cross-examine the detective because the People had not

  disclosed the detective as an expert witness before trial. For their

  part, the People contend that Aldridge opened the door to the

  challenged testimony by asking the detective whether he had found

  any pornography or “Viagra or anything like that” in the motor

  home.

¶ 45   Because this precise issue is unlikely to arise in this context

  on remand, we decline to address it. See People v. Weinreich, 98

  P.3d 920, 924 (Colo. App. 2004) (declining to address evidentiary




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  issue unlikely to arise “in the same context” on retrial), aff’d, 119

  P.3d 1073 (Colo. 2005).

                        C. Consecutive Sentences

¶ 46   Aldridge contends, the People concede, and we agree that the

  trial court erred by imposing consecutive sentences for ten of the

  convictions.

¶ 47   Generally, a trial court “has the discretion to impose either

  concurrent or consecutive sentences.” Juhl v. People, 172 P.3d 896,

  899 (Colo. 2007). However, under section 18-1-408(3), C.R.S. 2017,

  “when the district attorney prosecutes two or more offenses based

  on the same act or series of acts arising from the same criminal

  episode and the defendant is found guilty of more than one count

  on the basis of identical evidence, the sentences imposed must run

  concurrently.” Juhl, 172 P.3d at 899.

¶ 48   Here, the prosecution alleged that C.O. and L.A. were both

  subject to multiple sexual assaults during the charged timeframe,

  but did not establish distinct acts of sexual assault. Rather, the

  prosecution relied on identical evidence to establish the sexual

  assault on a child, sexual assault on a child by one in a position of

  trust, and aggravated incest charges as to each victim. Thus, the


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  trial court erred in imposing ten consecutive sentences based on

  the evidence presented and the jury’s verdicts.

¶ 49   If the jury finds Aldridge guilty of more than one count per

  victim on retrial, the trial court must impose sentences in

  accordance with section 18-1-408(3), Juhl, 172 P.3d at 899, and

  Quintano v. People, 105 P.3d 585, 589-92 (Colo. 2005).

                             IV. Conclusion

¶ 50   Accordingly, the judgment and sentence are reversed, and the

  case is remanded for a new trial.

       JUDGE BERNARD and JUDGE WELLING concur.




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