1                 Opinions of the Colorado Supreme Court are available to the
2             public and can be accessed through the Judicial Branch’s homepage at
3               http://www.courts.state.co.us. Opinions are also posted on the
4               Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                            ADVANCE SHEET HEADNOTE
7                                                                         April 24, 2017
8
9                                           2017 CO 36
0
1   No. 14SC304, Martinez v. People—Testimonial Evidence—Electronic Exhibits—Jury
2   Deliberations—Plain Error.
3
4          In this case, the supreme court reviews for plain error a trial court’s decision to

5   allow the jury unfettered access, during its deliberations, to the out-of-court statements

6   of three sexual assault victims. These statements were memorialized in three DVDs and

7   three transcripts thereof, all of which had been admitted as exhibits in the petitioner’s

8   criminal trial.

9          The supreme court now concludes that even if the trial court erred in allowing

0   the jury unfettered access to the victims’ statements, on the facts of this case, any such

1   error did not so undermine the fundamental fairness of the trial itself as to cast serious

2   doubt on the reliability of the petitioner’s convictions and, thus, was not plain.

3          Accordingly, the court affirms the judgment of the court of appeals division and

4   remands the case to that court for further proceedings consistent with the opinion.
1

2

3                       The Supreme Court of the State of Colorado
4                         2 East 14th Avenue • Denver, Colorado 80203


5                                         2017 CO 36

6                            Supreme Court Case No. 14SC304
7                          Certiorari to the Colorado Court of Appeals
8                           Court of Appeals Case No. 10CA1840
9                                          Petitioner:
0                                       Nerio Martinez,
1                                              v.
2                                        Respondent:
3                            The People of the State of Colorado.

4                                    Judgment Affirmed
5                                          en banc
6                                        April 24, 2017
7
8   Attorneys for Petitioner:
9   Douglas K. Wilson, Public Defender
0   Ned R. Jaeckle, Deputy Public Defender
1    Denver, Colorado
2
3   Attorneys for Respondent:
4   Cynthia H. Coffman, Attorney General
5   Ethan E. Zweig, Assistant Attorney General
6    Denver, Colorado
7
8
9
0
1
2
3
4
5
6   JUSTICE GABRIEL delivered the Opinion of the Court.
7   JUSTICE BOATRIGHT concurs in part and concurs in the judgment.
¶1       In this case, we review for plain error a trial court’s decision to allow the jury

unfettered access, during its deliberations, to the out-of-court statements of three child

sexual assault victims. These statements were memorialized in three DVDs and three

transcripts thereof, all of which had been admitted as exhibits in the criminal trial of the

petitioner, Nerio Martinez.1 Martinez first raised the issue of jury access on direct

appeal, arguing that allowing the jury unfettered access constituted reversible plain

error. In a unanimous, unpublished opinion, a division of the court of appeals rejected

this argument. People v. Martinez, No. 10CA1840, slip op. at 14 (Colo. App. Mar. 13,

2014). Without deciding whether the trial court had abused its discretion, the division

concluded that any error in not limiting the jury’s access to the exhibits during

deliberations did not warrant reversal under the plain error standard.

¶2       We agree and therefore affirm the judgment of the court of appeals.

                             I. Facts and Procedural History

¶3       Martinez began dating the victims’ mother in April 2004, when the victims, three

sisters, were approximately 7, 8, and 11 years old. Within three months, the victims and

their mother had moved in with Martinez. Soon after that, the couple bought a house,

and they married the next year.        Martinez’s repeated cheating, however, led to a




1   We granted certiorari to review the following issue:
         Whether the court of appeals erred in holding that the trial court did not
         plainly err by allowing the jury unfettered and unsupervised access to
         transcripts and videotapes of the alleged victims’ forensic interviews
         during its deliberations.


                                              2
tumultuous marriage. Over the course of five years and six different homes, the couple

split up, reconciled, had a son, split up again, reconciled again, and ultimately divorced.

¶4     While divorce proceedings were pending in June 2009, allegations surfaced that

Martinez had repeatedly sexually abused all three of his stepdaughters.2 When the

girls’ mother learned of these allegations, she immediately called the police, who set up

forensic interviews for the girls a few days later. In the interviews, all three sisters

accused Martinez of similar acts of abuse, with the oldest sister describing five separate

incidents between 2004 and 2007, the middle sister describing five incidents between

2005 and 2009, and the youngest sister describing seven incidents that occurred in a

house to which the family had moved in 2008.

¶5     The police interviewed additional witnesses, including Martinez himself, and

gathered what they could in the way of physical evidence. They ultimately retrieved,

among other things, a semen-stained blanket, pornographic images and videos

(including videos from teenage pornography websites), and a photo of one of the

victims in her underwear. The police subsequently arrested Martinez.

¶6     In a seventy-count complaint and information, the People alleged that Martinez

had sexually abused his three stepdaughters on seventeen separate occasions between

September 2004 and January 2009. The seventy charges comprised seventeen counts of

sexual assault on a child, seventeen counts of sexual assault on a child by one in a

position of trust, seventeen counts of aggravated incest, fourteen counts of sexual


2 The girls’ mother testified that Martinez never formally adopted the girls, but they
lived as a family and he acted as their parent.


                                            3
assault on a child by one in a position of trust as part of a pattern of abuse, and five

habitual criminal sentence enhancers. Martinez pleaded not guilty, and in May 2010,

the case proceeded to a week-long trial.

¶7    The prosecution’s case-in-chief lasted four days and included nineteen witnesses

(but little physical evidence). As pertinent here, the forensic interviewer took the stand

on the first day of testimony, before any of the victims. She described the forensic

interviews that she had conducted with the victims and authenticated the DVD and the

transcript of each interview. The prosecutor then offered and the court admitted into

evidence the three DVDs and the three transcripts.

¶8    Thereafter, the prosecutor published the DVDs and the transcripts of the

interviews, providing copies of the pertinent interview transcript for the jurors to read

while each DVD played in open court.3 The prosecutor then called each victim and

elicited her testimony regarding the charged incidents related to her.

¶9    For the most part, the victims’ trial testimony paralleled their out-of-court

interviews. In both settings, the victims attributed their delayed outcries to their fears

as to what might happen, including ending up in court, and their concern that their

little brother—Martinez’s biological son—would grow up without a father. Moreover,

although the victims could not remember certain details, they had not forgotten any


3 When the prosecutor proposed to proceed in this fashion, Martinez objected in part.
Although he conceded that “the transcript has already been admitted into evidence, so
at this point . . . it could be published,” he opposed including the copies of the
transcripts in the juror notebooks because, unlike the originals, the copies were not
evidence. When the court suggested that the bailiff collect the copies at each DVD’s
conclusion, however, Martinez responded, “That’s fine.”


                                            4
salient aspects of the charged crimes since providing their out-of-court statements. For

example, although the oldest stepdaughter testified that parts of her memory were

“blocked” with respect to the first time that Martinez had touched her, she remembered

in detail the pertinent facts of this incident, and her description matched the description

that she gave in her forensic interview. Specifically, in both contexts, she recalled that

(1) the incident had occurred in a blue truck driven by Martinez, (2) the two had been

on their way to the grocery store, (3) Martinez had begun tickling her, (4) he then put

his hands down her pants and his fingers in her vagina, and (5) the incident ended with

him putting her hands down his pants to show her his “ticklish spot” and to have her

touch his penis. She also recalled Martinez’s saying, “It tends to get messy.”

¶10    In addition, the victims’ accounts were supported by (1) the testimony of four

friends in whom the girls had confided regarding the abuse as early as four years before

trial and (2) one of the friends’ mothers, who had notified the victims’ mother after

learning of the alleged abuse. The friend’s mother testified that she had helped the

victims’ mother confront the victims about the abuse, and her testimony generally

corroborated the victims’ mother’s account of that episode.

¶11    For his part, Martinez maintained that the victims had fabricated the allegations

because they were angry that he had repeatedly cheated on their mother. Thus, when

the prosecutor asked him why the victims would invent such allegations, Martinez

replied, “Just to hurt me for what I’ve done to their mom.”

¶12    Martinez also suggested that the girls had financial reasons to retaliate against

him, testifying that until he left them, his income alone had supported the family. To


                                            5
this end, on cross-examination, defense counsel elicited testimony from the victims that

when Martinez and their mother were together, Martinez spoiled the girls. Similarly,

Martinez’s goddaughter testified that the victims were “really mad” at Martinez when

they learned that he had cheated on their mother, that they grew “even more mad”

when their mother reconciled with him, and that they “were going to do whatever they

could to get [Martinez] to get them whatever they wanted.”

¶13   In the closing arguments that followed, both sides recognized the paramount

importance of the victims’ credibility—particularly in relation to their motives—to the

resolution of the case. As pertinent here, the prosecutor began his argument by urging

the jurors “to harken back to when you first saw the [DVDs] of each of those girls on

those consecutive days, and I want you to think about your reaction[—]that first gut

reaction[—]to how those girls came across.” He then went over the timeline of the case

and challenged Martinez’s theory of defense, contending that the record lacked any

evidence “that these children would have the kind of animosity, the kind of viciousness

to go after [Martinez] in 2009 when they were one week away from getting completely

separated from him legally through the divorce of the parties.”

¶14   Defense counsel, in turn, began his closing argument by paraphrasing Martinez’s

trial testimony: “They hurt me for what I did to their mom.”                Counsel also

acknowledged that the case reduced to a credibility determination, stating, “What we

have is credibility of witnesses, and that’s your job to make a determination based on all

the evidence,” including the forensic interviews, which “you’ll have an opportunity to

review . . . again during your deliberation.” He urged the jury to find that certain


                                            6
statements to which the victims had testified (e.g., “I don’t want [Martinez] dead. I

want him to suffer.”) indicated that the victims had fabricated the allegations to

retaliate against Martinez for causing their mother to suffer. He expressly declined,

however, “to go over a lot of detail about all the different allegations.”

¶15    The case then went to the jury, and although the record suggests that the court

intended that all of the exhibits—including the transcripts and DVDs at issue—be sent

into the jury room, the parties dispute whether that room contained the equipment

necessary to play the DVDs.4 We need not resolve this dispute, however, because as

discussed more fully below, the jury’s ability to watch the DVDs does not affect our

conclusion in this case.

¶16    The jury ultimately returned verdicts finding Martinez guilty as charged of the

sixty-five substantive counts.    Two months later, the court held a hearing on the

habitual offender counts, found that Martinez had been convicted in five prior felony

cases, and entered judgments of conviction on all five habitual offender counts. At the

same hearing, the court sentenced Martinez to an aggregate term of 192-years-to-life in

prison.

¶17       Martinez appealed his convictions and sentence. As pertinent here, he argued

that the trial court had abused its discretion in failing to control the jury’s use of the

interview transcripts and DVDs. Although he admitted that he had not objected to the

jury’s having unfettered access to those materials, he contended that the error was

4As the division below observed, “[T]he record does not confirm that the jury had the
equipment necessary to view the video exhibits. The record confirms only that the jury
had the written transcripts of the interviews.” Martinez, slip op. at 13 n.1.


                                             7
obvious, affected the fundamental fairness of the trial, and cast serious doubt on the

reliability of the guilty verdict, thus establishing reversible plain error.

¶18    The division declined to address the question of whether the trial court had

abused its discretion by not exercising some control over the exhibits at issue. Martinez,

slip op. at 8. Instead, as pertinent here, the division concluded that even if the trial

court had abused its discretion, any resulting error did not so impair the reliability of

Martinez’s convictions as to constitute reversible plain error. See id. at 8, 14. The

division thus affirmed the judgment. Id. at 24.5

¶19    Martinez then filed a certiorari petition, asking this court to review the division’s

conclusion that the trial court did not commit reversible plain error when it allowed the

jury unsupervised access to the transcripts and DVDs of the victims’ forensic

interviews. We granted the petition, and for the reasons set forth below, we now affirm

the division’s judgment.

                                        II. Analysis

¶20    It is undisputed that Martinez did not object when the trial court allowed the

jury unfettered access to the victims’ interview transcripts and DVDs during

deliberations. In these circumstances, Crim. P. 52(b) limits our review to “[p]lain errors



5 Although the division rejected Martinez’s challenges to his convictions, it agreed with
his contention that the sentencing court had erred in applying the extraordinary risk
statute, § 18-1.3-401(10)(a), C.R.S. (2016), to his convictions for sexual assault on a child
by one in a position of trust as part of a pattern of abuse. Martinez, slip op. at 22–23.
The division therefore vacated the erroneous sentences and remanded the case for
resentencing. Id. at 24. From the available record, it is unclear whether this
resentencing has yet occurred.


                                               8
or defects affecting substantial rights.” Martinez contends that the trial court’s error in

purportedly not exercising its discretion regarding the DVDs and transcripts was plain

and requires reversal. We are not persuaded.

¶21    We begin by explaining how the plain error standard shapes our review of

Martinez’s claim. Next, we apply that standard to determine whether the error that

Martinez has asserted warrants the reversal of his convictions.

                                      A. Plain Error

¶22    Control over the use of exhibits during jury deliberations rests firmly within the

trial court’s discretion, and we may not substitute our own judgment for that of the trial

court merely because we would have reached a different conclusion.               People v.

Jefferson, 2017 CO 35, ¶ 25, ___ P.3d ___; DeBella v. People, 233 P.3d 664, 666–67 (Colo.

2010). Accordingly, we review for an abuse of discretion the court’s decision to grant

the jury access to the transcripts and DVDs of the victims’ forensic interviews, and we

will not disturb that decision unless it was manifestly arbitrary, unreasonable, or unfair.

See Jefferson, ¶ 25; DeBella, 233 P.3d at 667.

¶23    Not every abuse of discretion, however, impairs the reliability of a conviction to

a degree that requires reversal. Jefferson, ¶ 26; DeBella, 233 P.3d at 667. When, as here,

no contemporaneous objection preserved the error, Crim. P. 52(b)’s plain error standard

governs appellate review, and we may correct the error only if it meets that rule’s

criteria. See Crim. P. 52(b) (“Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.”); accord Hagos v.

People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120.


                                                 9
¶24    Crim. P. 52(b)’s plain error standard addresses error that is both obvious and

substantial and that so undermined the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction. People v. Miller, 113 P.3d

743, 750 (Colo. 2005).

                                     B. Application

¶25    For the purposes of this opinion, we need not decide whether the trial court

abused its discretion in granting the jury apparently unlimited access to the transcripts

and, possibly, the DVDs of the victims’ forensic interviews.         Nor need we decide

whether the resulting error was obvious and substantial. Assuming without deciding

both that the trial court abused its discretion and that, in doing so, it committed an

obvious and substantial error, we still perceive no grounds for reversal because as we

proceed to discuss, we cannot say that any error here so undermined the fundamental

fairness of the trial itself as to cast serious doubt on the reliability of the judgment of

conviction. See id.

¶26    “In this jurisdiction we have long adhered to the rule that absent a specific

exclusion of some particular class of exhibits, trial courts exercise discretionary control

over jury access to trial exhibits during their deliberations.” Jefferson, ¶ 29 (quoting

Frasco v. People, 165 P.3d 701, 704 (Colo. 2007)); see also Settle v. People, 504 P.2d 680,

680–81 (Colo. 1972) (applying the rule of discretionary control to the reading of part of

the testimony of trial witnesses); Wilson v. People, 84 P.2d 463, 467 (Colo. 1938) (noting

that in the absence of prohibitory legislation, it is within the trial judge’s discretion to

permit papers not under seal to be sent to the jury room).


                                            10
¶27    Granting the jury access to portions of trial testimony (as in Settle) or to exhibits

substituting for trial testimony (as in Frasco, DeBella, and Jefferson, all of which

involved the videotaped, out-of-court statements of child sexual assault victims),

however, may pose a risk that jurors will place undue weight or emphasis on that

evidence. Accordingly, trial courts in criminal proceedings bear an obligation to ensure

that juries do not use such exhibits in a manner that is unfairly prejudicial to either

party. Frasco, 165 P.3d at 704. The precise procedure to be followed to ensure this

result, however, lies within the court’s sound discretion. Id.

¶28    We have twice discerned reversible error in trial courts’ decisions to grant juries

unfettered access to exhibits containing the out-of-court statements of child victims of

sexual assault. See Jefferson, ¶¶ 2–3; DeBella, 233 P.3d at 669. In each of those cases, we

noted the substantial risk that the jury had placed undue weight or emphasis on the

videotape because (1) the victim’s trial testimony and out-of-court statement

contradicted each other, which underscored how much the resolution of the case hinged

on assessing the victim’s credibility, and (2) insofar as the videotape contained the only

complete recounting of the assaults, it likely served as “the linchpin of the prosecution’s

case.” Jefferson, ¶ 59; DeBella, 233 P.3d at 668–69. We further observed that because

the victim’s credibility was central to the resolution of each of those cases, providing the

jury with unsupervised access to only one side of the story (namely, the prosecution’s)

unacceptably heightened the risk of an unfair trial.        See Jefferson, ¶ 45; DeBella,

233 P.3d at 669.




                                            11
¶29    For several reasons, the circumstances in this case do not present the same

likelihood that in the course of its deliberations, the jury placed undue weight or

emphasis on the victims’ out-of-court interviews. Nor do we perceive a material risk to

the fairness of Martinez’s trial.

¶30    First, although inconsistencies between a victim’s recorded statement and his or

her account at trial are “almost always present” in cases involving charges of sexual

assault on a child, DeBella, 233 P.3d at 669, Martinez’s defense did not rely to any

significant extent on such inconsistencies to challenge the victims’ credibility in the

present case. Rather, he focused his defense on the victims’ purported motive to invent

the allegations against him in retaliation for his extramarital affairs. Indeed, during his

closing argument, Martinez underscored only one inconsistency: when in her trial

testimony, the youngest stepdaughter described one of the charged incidents, she stated

that Martinez had been touching her under his “Bronco blanket” when a knock at the

door interrupted them.       Describing the same incident in her forensic interview,

however, this victim did not mention any knock at the door but said that the incident

ended after “weird stuff c[a]me out of [Martinez’s] penis.”           Discussion of this

inconsistency, however, made up only a small portion of a closing argument that began

and ended by emphasizing that the victims had not been truthful because “at the end of

the day, all they wanted to do was hurt [Martinez] like [Martinez] had hurt their

mother.”

¶31    Martinez’s approach thus stands in stark contrast to the defenses asserted in

Jefferson and DeBella, which relied on discrepancies between the victims’ trial


                                            12
testimony and their videotaped interviews to establish that the victims were not

credible. Jefferson, ¶ 59; DeBella, 233 P.3d at 669. In those cases, the jurors’ unlimited

access in the jury room to only one side of the story heightened the risk that they would

give that side undue weight, while at the same time, their memories of the victims’

in-court and sometimes contradictory testimony faded.        See Jefferson, ¶ 60 (“With

unfettered access to the DVD during its deliberations, the jury was able to watch and

re-watch [the victim] describe the abuse in a manner functionally equivalent to her live

testimony, except with more—and more vivid—detail.”); DeBella, 233 P.3d at 669

(“Allowing the jury to pore over the [video]tape only marginally facilitated a

comparison between that exhibit and the victim’s trial testimony, of which jury

members only had their memory.”).

¶32   In sum, because Martinez did not base his defense on inconsistencies between

the victims’ in-court and out-of-court accounts (perhaps due to the fact that those

accounts were largely consistent), unlimited access to the forensic interviews neither

impeded the jury’s assessment of Martinez’s theory of defense nor unduly emphasized

the prosecution’s version of events.

¶33   Second, unlike in Jefferson and DeBella, the victims’ interviews did not serve as

“the linchpin of the prosecution’s case” against Martinez. In Jefferson and DeBella, the

victims had provided more complete accounts of the crimes in their out-of-court

interviews than in their trial testimony. See DeBella, 233 P.3d at 669 (“[A]s the only

complete recounting of the assaults, the videotape was the linchpin of the prosecution’s

case against [the defendant].”); see also Jefferson, ¶ 59 (“[T]he DVD, which contained


                                           13
details that [the victim] could not remember when she testified, likely served as the

‘linchpin of the prosecution’s case,’ just as the videotape in DeBella did.”). In Jefferson,

¶ 11, for example, the victim had been able to describe the alleged assault in some detail

in an out-of-court interview. When asked to recount the same events at trial, however,

she often replied, “I don’t know” or “I don’t remember.” Id. at ¶ 13. Similarly, in

DeBella, 233 P.3d at 668–69, the videotape of the victim’s forensic interview contained a

detailed account of the sexual assaults and included aspects of the assaults that the

victim could not remember at trial. The out-of-court interviews in Jefferson and DeBella

thus filled gaps in the victims’ trial testimony, likely leading the jury to accord the

interviews undue significance during its deliberations. See Jefferson, ¶ 59; DeBella,

233 P.3d at 669.

¶34    Here, in contrast, the victims provided similarly detailed accounts both in their

out-of-court interviews and in their trial testimony. See supra ¶ 9. For instance, the

middle sister recounted the first of five charged incidents using nearly identical

language both at trial and during her out-of-court interview. She explained that she

had been getting ready for bed when Martinez came into her room and started to tickle

her. He then got into her bed and under the covers with her, kissed her for a long time,

touched her “boobs” (she said “breast” at trial), and “st[u]ck” (she said “put” at trial)

his fingers in her vagina. She also used the same language to describe her perception of

Martinez’s ejaculating, stating that she felt something come out of his penis and that it

“felt kind of like milk.” And because this victim, as well as her sisters, provided a

similar level of detail both in her interview and in her trial testimony, none of the


                                            14
interviews (whether in DVD or transcript form) went into the jury room as the most

detailed version of events or the “linchpin” of the prosecution’s case. Cf. Jefferson, ¶ 60.

¶35    We are not persuaded otherwise by Martinez’s assertion that on several

occasions at trial, at least two of the victims testified that they did not remember certain

things. These forgotten details were minor at best and did not concern any critical

details of the assaults. For example, the oldest victim had stated in her out-of-court

interview that when she and Martinez returned home from the trip to the grocery store

during which Martinez had first assaulted her, he had explained their delayed return by

saying, “There was a long line.” At trial, however, when the prosecutor asked this

victim whether she or Martinez had explained “why it took so long,” she answered, “I

don’t remember.” Neither the absence of such details from the victims’ trial testimony

nor their presence in the victims’ interviews leaves us with the same concern regarding

gap-filling that we described in Jefferson and DeBella.

¶36    We likewise are unpersuaded by Martinez’s attempt to measure quantitatively

the gap-filling role that the interviews played here by dividing the number of lines in

the transcripts of the interviews by the number of lines in the transcripts of the victims’

trial testimony (which Martinez asserts yields a ratio of about four-to-one).          This

method ignores the content of both the interviews and the testimony, providing an

ineffective means for assessing whether the interviews actually supplied details of the

charged crimes that the victims’ testimony lacked. Cf. Jefferson, ¶ 59. Martinez does

not specifically identify any such details, and our review of the record has turned up




                                            15
none that would render the interviews “the only complete recounting of the assaults.”

DeBella, 233 P.3d at 669.

¶37    Third, we observe that not only did Martinez not object to the jury’s unfettered

access to the victims’ interviews, but also he affirmatively suggested that the jurors

review those interviews while they deliberated. Specifically, in his closing argument,

Martinez’s counsel noted the limited nature of the physical evidence in this case and

emphasized that what the jurors had were the forensic interviews, which, he said, the

jurors would “have an opportunity to review . . . again during [their] deliberation.”

Such a statement, particularly when coupled with the fact that counsel did not object to

the jury’s unfettered access to the interviews, suggests that Martinez may not have

viewed the jury’s access to the victims’ interviews during its deliberations as harmful to

his interests. Cf. Frasco, 165 P.3d at 705 (remarking that defense counsel “specifically

asked the jury, if it went through the videotape during deliberations, to take note of the

suggestiveness of the questioning in that interview” and concluding, as a result, that “it

is not even clear that defense counsel considered granting the jury access to the

videotape to be disadvantageous”).

¶38    Finally, the strength of the prosecution’s case against Martinez mitigates any

doubt about the reliability of the jury’s verdicts as a result of the jury’s unfettered access

to the out-of-court interviews. Cf. Martinez v. People, 2015 CO 16, ¶ 16, 344 P.3d 862,

868 (reasoning that an erroneous instruction regarding a given element of the crime

charged does not rise to the level of plain error “[i]f the record contains overwhelming

evidence” of that element). The victims’ accounts were consistent, both internally and


                                             16
over time, and were supported by testimony from five hearsay witnesses who said that

the victims had revealed the abuse long before the divorce or the police investigation,

thereby undercutting Martinez’s argument that the victims invented the abuse after

Martinez had cheated on their mother.           Cf. Jefferson, ¶ 59 (expressing concern

regarding the fairness of the proceedings, given that the prosecution’s case rested on the

victim’s allegations, “which were at times inconsistent and which were supported only

by hearsay testimony from her family and government investigators”).

¶39   Moreover, although the case involved relatively limited physical evidence, some

of which was arguably equivocal (e.g., the semen-stained blanket collected from

Martinez months after he had moved out and begun another sexual relationship), all of

the evidence fit the prosecution’s theory of the case. Perhaps most compelling, the

police discovered on devices belonging to Martinez a photograph of one of the victims

in her underwear and pornographic images and videos (including videos from teenage

pornography websites). This evidence tended to support a finding that Martinez had a

sexual interest in young girls, including his own stepdaughters, and it also was

consistent with the middle sister’s allegation that Martinez had her sit on his lap and

watch pornography with him on his laptop.

¶40   For all of these reasons, we conclude that the jury did not likely place undue

emphasis on the victims’ interviews during its deliberations. As a result, we conclude

that the jury’s unfettered access to those interviews did not so undermine the

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

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


                                           17
¶41    In reaching this conclusion, we are unpersuaded by Martinez’s contention that a

greater potential for undue emphasis inheres in videos, such as the DVDs at issue here,

than in other media, such as the transcripts that are also at issue.

¶42    We acknowledge, as Martinez suggests, that “[v]ideotape testimony is unique,”

given that it enables jurors to observe the demeanor and to hear the testimony of

witnesses. United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985), overruled in part

on other grounds by United States v. Morales, 108 F.3d 1031, 1035 n.1 (9th Cir. 1997); see

also Frasco, 165 P.3d at 705 (“[S]ome kinds of exhibits obviously have a greater potential

for unfair prejudice than others.”); Martin v. State, 747 P.2d 316, 319 (Okla. Crim. App.

1987) (recognizing the possibility for abuse inherent in “allowing the jury to hear, and

see, the entire testimony of an empathetic witness, such as a child describing a painful

experience in his young life”).

¶43    As noted above, however, on the record before us, it is unclear whether the

jurors even had the ability to watch the DVDs in the jury room. And even if they did,

given our conclusion that the jury did not likely place undue emphasis on the

interviews in the first place, on the facts presented here, we decline to hang a

determination of reversible plain error solely on the medium by which those interviews

were accessible to the jury.

                                     III. Conclusion

¶44    For these reasons, we affirm the judgment of the court of appeals and remand

this case to that court for further proceedings consistent with this opinion.

JUSTICE BOATRIGHT concurs in part and concurs in the judgment.


                                             18
JUSTICE BOATRIGHT, concurring in part and concurring in the judgment.

¶45      I agree with the majority’s assessment that even if we assume the trial court

abused its discretion in allowing the jury unsupervised access to the videotape of the

forensic interview, such abuse was not plain error and Martinez’s conviction should

stand.     I write separately because I dissent from the majority’s opinion in the

companion case, People v. Jefferson, 2017 CO 35, ___ P.3d ___, for reasons that I explain

there. Hence, to the extent that the majority’s analysis in Jefferson undergirds the

majority opinion here, I respectfully disagree.




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