     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
                                                                 July 23, 2020

                                2020COA109

No. 17CA0343, People v. Abdulla — Crimes — Unlawful Sexual
Contact

     As a matter of first impression, a division of the court of

appeals considers whether striking a person’s intimate parts with

an implement or object, rather than with a part of the actor’s own

body, can constitute “touching” under Colorado’s unlawful sexual

contact statute, § 18-3-401(4)(a), C.R.S. 2019. The division

concludes that it can. Because record evidence would support the

conclusion that the defendant whipped the victim with a belt on her

buttocks for the purpose of sexual arousal, gratification, or abuse,

the division concludes that the trial court did not err by instructing

the jury on unlawful sexual contact as a lesser included offense of

sexual assault.
     The division also rejects the defendant’s contention that the

jury instructions failed to ensure that the jury’s verdict was

unanimous as to the act underlying the unlawful sexual contact

conviction. The division further concludes that any error by the

trial court in admitting various hearsay statements was harmless.

Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS                                     2020COA109


Court of Appeals No. 17CA0343
City and County of Denver District Court No. 16CR606
Honorable Sheila Ann Rappaport, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sharif Mubarak Abdulla,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                          Opinion by JUDGE BROWN
                       J. Jones and Harris, JJ., concur

                           Announced July 23, 2020


Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Alan Kratz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    A jury found defendant, Sharif Mubarak Abdulla, guilty of

 unlawful sexual contact and third degree assault. On appeal, he

 contends that his conviction for unlawful sexual contact must be

 reversed for three reasons: (1) the trial court erred by granting the

 prosecution’s request to instruct the jury on the lesser included

 offense of unlawful sexual contact; (2) the jury instructions failed to

 ensure that the jury’s verdict was unanimous as to the act

 underlying the unlawful sexual contact conviction; and (3) the trial

 court erred by admitting various hearsay statements.

¶2    Resolving the first issue requires us to determine, as a matter

 of first impression, whether striking a person’s intimate parts with

 an implement or object, rather than with a part of the actor’s own

 body, can constitute “touching” under Colorado’s unlawful sexual

 contact statute, § 18-3-401(4)(a), C.R.S. 2019. We conclude that it

 can. Because record evidence would support the conclusion that

 Abdulla whipped the victim with a belt on her buttocks for the

 purpose of sexual arousal, gratification, or abuse, we conclude that

 the trial court did not err by instructing the jury on unlawful sexual

 contact as a lesser included offense of sexual assault.




                                    1
¶3    We also reject the defendant’s contention that the jury

 instructions failed to ensure that the jury’s verdict was unanimous

 as to the act underlying the unlawful sexual contact conviction.

 And we conclude that, if the trial court erred by admitting various

 hearsay statements, such error was harmless. Accordingly, we

 affirm the judgment of conviction.

                           I.    Background

¶4    On Sunday, January 24, 2016, the victim, L.C., went to a

 police station to report that her husband, Abdulla, had beaten and

 raped her the previous night. That same day, L.C. consented to a

 sexual assault examination at a hospital.

¶5    Five days later, the People charged Abdulla with one count of

 sexual assault, a class 3 felony, and one count of third degree

 assault, a class 1 misdemeanor. Abdulla pleaded not guilty.

¶6    At trial, L.C. testified that she and Abdulla had gotten into an

 argument that had turned physical. L.C. said it started with

 Abdulla pushing her multiple times on her arm while telling her to

 call the police if she wanted him out. Abdulla then forced her to

 take off her clothes so he could beat her with a belt, forced her to

 get on her knees so he could put his “dick in [her] mouth,” and


                                    2
 forced her to choose between “oral sex or regular sex.” L.C. testified

 that she didn’t want to have either, but, because she was scared,

 said, “regular sex.” After having sex with L.C., Abdulla went to

 sleep.

¶7    According to L.C., at some point Abdulla woke up and wanted

 to have sex again. L.C. said that, because she was still scared, she

 laid there while he had sex with her. L.C. testified that she never

 said “no” to any of the sexual acts and instead pretended to go

 along with it.

¶8    As his theory of defense, Abdulla acknowledged that the “fight

 became physical” but argued that all the subsequent sexual acts

 were consensual.

¶9    The jury acquitted Abdulla of sexual assault but convicted him

 of unlawful sexual contact and third degree assault. The trial court

 sentenced Abdulla to an indeterminate term of six years to life in

 the custody of the Department of Corrections on the unlawful

 sexual contact count and to a concurrent two-year jail term on the

 misdemeanor assault count.




                                   3
                                  II.   Analysis

             A.    The Lesser Included Offense Instruction

¶ 10   At the prosecutor’s request, and over Abdulla’s counsel’s

  objection, the trial court instructed the jury on unlawful sexual

  contact as a lesser included offense of sexual assault. Abdulla asks

  us to reverse his conviction for unlawful sexual contact because

  there was no rational basis for that charge to have been submitted

  to the jury. We disagree.

                        1.        Standard of Review

¶ 11   We review de novo whether the trial court applied the correct

  legal standard when it evaluated the prosecutor’s request for the

  lesser included offense instruction. People v. Alaniz, 2016 COA

  101, ¶ 40. But we review for an abuse of discretion the court’s

  determination that there was sufficient evidence to support the

  instruction. People v. Jimenez, 217 P.3d 841, 870 (Colo. App.

  2008); see also People v. Leyba, 2019 COA 144, ¶ 44 (cert. granted

  in part May 26, 2020).

                             2.     Applicable Law

¶ 12   A defendant may be convicted of a lesser offense that is

  “necessarily included in the offense charged.” Crim. P. 31(c); see


                                        4
  also § 18-1-408(5), C.R.S. 2019; People v. Cooke, 186 Colo. 44, 46,

  525 P.2d 426, 428 (1974). A lesser offense is “included in an

  offense charged” if it “is established by proof of the same or less

  than all the facts required to establish the commission of the

  offense charged” or if it “differs from the offense charged only in the

  respect that a less serious injury or risk of injury . . . or a lesser

  kind of culpability suffices to establish its commission.”

  § 18-1-408(5)(a), (c).

¶ 13   Section 18-1-408(6) “obligate[s]” a trial court to “charge the

  jury with respect to an included offense” when the party requesting

  the instruction demonstrates “a rational basis for a verdict

  acquitting the defendant of the offense charged and convicting him

  of the included offense.” See also People v. Arispe, 191 Colo. 555,

  557, 555 P.2d 525, 527 (1976); People v. Skinner, 825 P.2d 1045,

  1046 (Colo. App. 1991). Such a rational basis exists when “there is

  some evidence, however slight, tending to establish the lesser

  included offense.” People v. Shaw, 646 P.2d 375, 379 (Colo. 1982);

  accord People v. Annan, 665 P.2d 629, 630 (Colo. App. 1983).




                                      5
       3.     The Trial Court Properly Instructed the Jury on the Lesser
                    Included Offense of Unlawful Sexual Contact

                        a.    Notice and the Cooke Test

¶ 14        Because the prosecutor requested the lesser included

  instruction, and the trial court granted the request over Abdulla’s

  counsel’s objection, the People argue that the test employed in

  Cooke, 186 Colo. at 48, 525 P.2d at 428-29, governs. That test,

  which is “[m]indful of the primacy of notice within the constitutional

  guarantee of due process of law and of the duty of the courts to

  safeguard this right,” is satisfied if the lesser included offense is “(1)

  easily ascertainable from the charging instrument, and (2) not so

  remote in degree from the offense charged that the prosecution’s

  request appears to be an attempt to salvage a conviction from a

  case which has proven to be weak.” Id.

¶ 15        On appeal, Abdulla does not argue that the Cooke test was not

  satisfied or otherwise contend that he was not given enough notice

  “to give him a fair and adequate opportunity to prepare his defense,

  and to ensure that he is not taken by surprise because of evidence

  offered at the time of trial.” Id. at 46, 525 P.2d at 428. Instead,

  Abdulla argues that there is an “additional requirement that there



                                       6
  must also be a rational basis for the jury to acquit of the greater

  offense and convict of the lesser.” On this point, we agree.

¶ 16   Satisfaction of the Cooke test does not end the inquiry when

  the defendant’s objection to the requested lesser included offense

  instruction is not based on lack of notice but rather on insufficient

  evidence. In other words, even if the requested instruction satisfies

  the Cooke test, the trial court must still determine that there is a

  rational basis for a verdict acquitting the defendant of the offense

  charged and convicting him of the lesser included offense. See §

  18-1-408(6); Arispe, 191 Colo. at 557, 555 P.2d at 527; Skinner,

  825 P.2d at 1046.

¶ 17   But we also conclude that the trial court applied the correct

  legal standard. It is undisputed that unlawful sexual contact is a

  lesser included offense of sexual assault. See Page v. People, 2017

  CO 88, ¶ 19. And when the court overruled Abdulla’s counsel’s

  objection to the instruction, it said, “[T]he prosecution can request a

  lesser-included offense if it’s not to salvage a verdict, but if the

  evidence supports it.” (Emphasis added.) So we turn to Abdulla’s

  contention that there was no rational basis for the jury to acquit

  him of sexual assault but to convict him of unlawful sexual contact.


                                      7
       b.     Rational Basis for the Lesser Included Offense Instruction

¶ 18        As relevant in this case, a person commits sexual assault by

  means of penetration when he “knowingly inflicts . . . sexual

  penetration on a victim” and “causes submission of the victim by

  means of sufficient consequence reasonably calculated to cause

  submission against the victim’s will.” § 18-3-402(1)(a), C.R.S. 2019.

  Sexual assault is a class 3 felony if the person “causes submission

  of the victim through the actual application of physical force or

  physical violence.” § 18-3-402(4)(a). Sexual penetration means

  “sexual intercourse, cunnilingus, fellatio, anilingus, or anal

  intercourse.” § 18-3-401(6).

¶ 19        A person commits unlawful sexual contact if he knowingly

  subjects the other person to any sexual contact, knowing that the

  other person does not consent. § 18-3-404(1)(a), C.R.S. 2019. The

  offense is a class 4 felony if, as relevant here, the actor compels the

  victim to submit “through the actual application of physical force or

  physical violence.” § 18-3-402(4)(a); see § 18-3-404(2)(b)

  (“[U]nlawful sexual contact is a class 4 felony if the actor compels

  the victim to submit by use of such force . . . as specified in section

  18-3-402(4)(a).”). Sexual contact includes “[t]he knowing touching


                                        8
  of the victim’s intimate parts by the actor . . . if that sexual contact

  is for the purposes of sexual arousal, gratification, or abuse.” § 18-

  3-401(4)(a). Intimate parts are “the external genitalia or the

  perineum or the anus or the buttocks or the pubes or the breast of

  any person.” § 18-3-401(2).

¶ 20   First, Abdulla contends that the only evidence of sexual

  contact not involving penetration — striking L.C.’s buttocks with a

  belt — is not “sexual contact” as a matter of law. He argues that

  using a belt to strike a victim’s buttocks is not “touching” the

  victim’s buttocks because the belt does not allow the actor to

  “perceive or experience through the tactile senses.” See People v.

  Pifer, 2014 COA 93, ¶ 11. We do not agree.

¶ 21   Abdulla’s argument requires us to determine whether his

  conduct falls within the statutory definition of “sexual contact.”

  Statutory interpretation is a question of law we review de novo.

  People v. Vinson, 42 P.3d 86, 87 (Colo. App. 2002). In interpreting a

  statute, we aim to ascertain and give effect to the intent of the

  General Assembly based on the plain and ordinary meaning of the

  statutory language. Pifer, ¶ 10. “We presume that the General

  Assembly intends a just and reasonable result when it enacts a


                                      9
  statute, and we will not follow a statutory construction that defeats

  the legislative intent or leads to an unreasonable or absurd result.”

  Vinson, 42 P.3d at 87.

¶ 22    The legislature has not defined the word “touching.” See § 18-

  3-401. When a criminal statute does not define a term, we can look

  to the dictionary definition to discern its meaning. See People v.

  Janousek, 871 P.2d 1189, 1196 (Colo. 1994). Indeed, prior

  divisions of this court have relied on dictionary definitions of the

  term “touch” to determine whether a particular act constituted

  “touching” within the meaning of section 18-3-401(4). See Pifer,

  ¶ 11; Vinson, 42 P.3d at 87.

¶ 23    Abdulla relies on Pifer, where a division of this court was

  tasked with determining whether the defendant subjected the victim

  to unlawful sexual contact by touching the victim’s intimate parts

  over her clothes and a sheet. Pifer, ¶ 9. The defendant argued that

  because the sheet was between his hand and the victim’s clothing,

  he did not touch the clothing covering the victim’s intimate parts.

  Id.

¶ 24    The division considered a dictionary definition of “touch” as “to

  perceive or experience through the tactile senses,” id. at ¶ 11


                                    10
  (quoting Webster’s Third New International Dictionary 2415 (2002)),

  and concluded that the defendant’s conduct fell within the plain

  and ordinary meaning of “touching,” id. The division flatly rejected

  the defendant’s interpretation because it “would mean that sexual

  contact could occur only by skin to skin contact, or when the

  actor’s bare skin touches clothing that the victim is wearing.” Id. at

  ¶ 12. It continued:

             For instance, when, for the purpose of sexual
             arousal, abuse, or gratification, the actor
             wears a condom during a sexual act, touches
             the victim’s bare genitals with a gloved hand,
             or touches the victim’s bare genitals with a
             bare hand over a blanket, sexual contact
             would not occur under Pifer’s construction. It
             strikes us as unlikely that the General
             Assembly intended to draw such distinctions
             in enacting the sexual assault statute.

  Id.

¶ 25    Abdulla relies on Pifer to argue that the actor must perceive or

  experience the victim’s intimate parts through the tactile senses to

  constitute “touching.” True, the Pifer division relied on a dictionary

  definition of “touch” that included an element of sensory perception,

  but it did so to address the specific facts of that case and to rebuff

  defendant’s contention that adding a layer of material between his



                                    11
  hand and the victim’s clothing relieved him of criminal liability. Id.

  at ¶¶ 10-12. We read Pifer more broadly — as rejecting a definition

  of “touch” that requires direct skin-to-skin or skin-to-clothing

  contact. Id. at ¶ 12.

¶ 26   In an earlier case, a division of this court considered whether a

  defendant ejaculating semen onto the victim’s buttocks constituted

  “touching.” Vinson, 42 P.3d at 87. The defendant argued that the

  word “touch” required some part of his body to come into contact

  with the victim’s buttocks. Id. The People argued that “touching”

  need not be “direct person-to-person contact.” Id.

¶ 27   The division looked to a dictionary definition of the word

  “touch” as “the act or fact of touching, feeling, striking lightly, or

  coming in contact.” Id. (citing Webster’s Third New International

  Dictionary 2416 (1986)). Based on that definition, it rejected the

  defendant’s narrow construction as contrary to the legislative

  intent. Id. It explained,

             [i]f we were to adopt defendant’s interpretation,
             we would have to conclude that using an
             object to touch another person’s intimate parts
             for the purpose of sexual gratification or
             arousal does not constitute “sexual contact”
             under § 18-3-401(4) and, hence, cannot



                                     12
             constitute a sexual assault. We see no basis
             for adopting such an interpretation.

  Id.

¶ 28    Thus, the division concluded that ejaculating semen onto

  another person’s intimate parts (or onto the clothing covering

  another person’s intimate parts) may constitute “touching” for

  purposes of establishing “sexual contact.” Id. at 88.1


  1 In People v. Ramirez, 2018 COA 129, a division of this court
  considered whether a defendant ejaculating into the hands of the
  victim constituted unlawful sexual contact. Because it determined
  that the victim’s hands were not an intimate part (touched by
  defendant’s semen) and that the defendant’s semen was not an
  intimate part (touched by the victim’s hands), it found insufficient
  evidence of sexual contact. Id. at ¶¶ 17-21, 36-41; see also § 18-3-
  401(4)(b)-(c), C.R.S. 2019 (reflecting the legislative response to
  Ramirez). In so doing, however, the Ramirez division expressly
  “agree[d] with Vinson; ejaculating onto the intimate parts of the
  victim constitutes sexual contact within the meaning of section
  18-3-401(4)[(a)].” Id. at ¶ 16. In People v. Cook, 197 P.3d 269, 278
  (Colo. App. 2008), a division of this court determined, albeit in the
  context of whether a child hearsay statement was admissible as a
  statement “describing any act of sexual contact” under section
  13-25-129, C.R.S. 2008, that a defendant’s act of intimidating a
  victim into touching herself for his own sexual gratification could
  constitute “constructive touching” for purposes of “sexual contact,”
  even in the absence of any physical contact between the defendant
  and the victim. Similarly, in People v. Moore, 877 P.2d 840, 846-48
  (Colo. 1994), the defendant was convicted of sexual assault on a
  child, although under a complicity theory, even though he did not
  physically touch the child, but instead forced his wife to complete
  the act.


                                   13
¶ 29   Like divisions before us, we look to the dictionary definitions of

  “touch” to guide our analysis. Although one definition of “touch” is

  “to bring a bodily part into contact with especially so as to perceive

  through the tactile sense,” which is similar to the definition used by

  the division in Pifer, another common definition is “to strike or push

  lightly especially with the hand or foot or an implement,” which is

  more like the definition used by the division in Vinson. Merriam-

  Webster Dictionary, https://perma.cc/TY5P-DJ5N.

¶ 30   Notably, the latter definition contemplates use of “an

  implement” to accomplish the “touch.” Id. Thus, we conclude that

  a definition of “touching” that includes use of an implement or

  object is consistent with the General Assembly’s intent as reflected

  in the plain and ordinary meaning of the statutory language. Put

  another way, we believe Abdulla’s narrow construction of the term

  “touching” is contrary to the legislative intent. See Vinson, 42 P.3d

  at 87. That is because, if we were to adopt Abdulla’s interpretation,

  we would have to conclude that using an object or implement —

  such as a belt, whip, or sex toy — to touch another person’s

  intimate parts for the purpose of sexual gratification, arousal, or

  abuse cannot constitute a sexual assault. See id. And, like the


                                    14
  division in Vinson, “[w]e see no basis for adopting such an

  interpretation.” Id.; see also Matter of Winner S., 676 N.Y.2d 783,

  785 (N.Y. Fam. Ct. 1998) (concluding that the defendant’s use of a

  pencil to touch the victim’s vaginal area over the victim’s clothing

  constitutes touching for the purposes of sexual contact as referred

  to in the applicable statute); State v. Crosky, No. 06AP-655, 2008

  WL 169346, at *13 (Ohio Ct. App. Jan. 17, 2008) (unpublished

  opinion) (concluding that the defendant’s use of a vibrator to touch

  the victim’s vagina over the victim’s clothing constitutes touching

  for the purposes of sexual contact (citing State v. Jenkins, No. 2000-

  CA-59, 2001 WL 848582, at *5 (Ohio Ct. App. July 27, 2001)

  (unpublished opinion)).

¶ 31   As a result, if Abdulla whipped L.C. on her buttocks with a

  belt for the purpose of sexual arousal, gratification, or abuse, the

  act could constitute “touching of the victim’s intimate parts”

  sufficient to establish sexual contact. The record evidence supports

  this conclusion.

¶ 32   L.C. testified that she asked Abdulla to stop beating her with

  the belt. When Abdulla stopped hitting her, he sat down on the

  bed, told L.C. to get down on her knees, and put his erect penis into


                                    15
  her mouth. From this evidence, the jury reasonably could have

  found that Abdulla got aroused from whipping L.C. with the belt,

  such that his “touching” of L.C.’s intimate parts was “for the

  purpose[] of sexual arousal.” See § 18-3-401(4)(a). The jury also

  could have found that Abdulla knew L.C. did not consent to the

  beating. Thus, it would have been reasonable for the jury to

  conclude that Abdulla committed unlawful sexual contact.

¶ 33   Still, even assuming Abdulla is correct that spanking with a

  belt does not constitute sexual contact as a matter of law, hitting

  L.C. on her buttocks with the belt was not the only act evidenced by

  the record that would qualify as sexual contact but not sexual

  assault. For example, L.C. testified that Abdulla kissed her on

  various parts of her body, including her breasts and her buttocks.

  On cross-examination, defense counsel asked L.C., “At some point,

  he did ask to kiss your wounds? To kiss you where he hit you?” To

  which L.C. responded, “Yes.” And when defense counsel asked

  L.C., “And he’s also kissing parts of your butt as well?” L.C. again

  answered, “Yes.” Accordingly, the jury could have properly found

  that when Abdulla kissed L.C.’s breasts or buttocks, he committed

  unlawful sexual contact.


                                    16
¶ 34   Second, Abdulla essentially argues that L.C.’s consent was an

  all-or-nothing proposition: L.C. either consented to all the acts or

  did not consent to any of them. If the former, Abdulla should be

  acquitted and, if the latter, he would have been found guilty of

  sexual assault (because the sexual acts included penetration), not

  unlawful sexual contact. Basically, Abdulla argues that the jury

  either had to believe or reject all of L.C.’s testimony that she did not

  consent to any of the sexual acts; it could not have found that some

  of the sexual acts were consensual while others were not.

¶ 35   But neither we nor the trial court are constrained by Abdulla’s

  theory of the case. See Brown v. People, 239 P.3d 764, 767-69

  (Colo. 2010) (explaining a party’s theory of the case is not

  determinative of whether a lesser included instruction should be

  given, but rather the inquiry focuses on whether there “is a rational

  basis for the instruction in the evidentiary record”). And we

  conclude there was evidence in the record that could have led the

  jury to conclude that L.C. consented to certain acts and did not

  consent to others.

¶ 36   L.C. said the spanking lasted on and off for about fifteen

  minutes. When she asked him to stop hitting her with the belt, he


                                     17
  told her to kneel down and he put his erect penis in her mouth.

  L.C. testified that she never said no to this act. Throughout the

  series of events, L.C. never told him not to touch her, never tried to

  push him away, and never tried to squeeze her legs to not give him

  access. Instead, L.C. admitted that she “kind of pretended to go

  along with him.” Based on this evidence, it would have been

  reasonable for the jury to conclude that L.C. did not consent to

  Abdulla whipping her with a belt and then kissing the parts of her

  body he had just beaten, while at the same time concluding either

  that L.C. consented to have sex with Abdulla thereafter (crediting

  Abdulla’s affirmative defense of consent) or that L.C. feigned

  consent well enough that Abdulla did not know the sex was against

  her will.

¶ 37   As the trial court said, “[The jury has] to agree on one act,

  whether it be penile, oral, vaginal, whatever. And they could find

  one was consensual or one wasn’t, or any combination thereof.”

  Further, as Abdulla concedes in his opening brief, “[T]he jury could

  have disagreed as to whether L.C. was credible with respect to

  different alleged acts of unlawful sexual contact, including whether

  certain acts were consensual while other acts were not.”


                                    18
¶ 38   Thus, we conclude that the trial court applied the correct legal

  standard and did not abuse its discretion by instructing the jury on

  the lesser included offense of unlawful sexual contact.

                      B.    The Unanimity Instruction

¶ 39   Next, Abdulla argues that even if there was a rational basis for

  the trial court to have instructed the jury on the lesser included

  offense, reversal is nonetheless required because of the trial court’s

  failure to ensure juror unanimity as to the underlying act of

  unlawful sexual contact.

                       1.    Additional Background

¶ 40   The jury received the following relevant instructions:

           Instruction Number 2 told the jury, “Mr. Abdulla is

            charged with committing the crimes of Sexual Assault

            and Assault in the Third Degree.”

           Instruction Number 3 explained, “[e]ach count charges a

            separate and distinct offense and the evidence and the

            law applicable to each count should be considered

            separately, uninfluenced by your decision as to any other

            count.”




                                     19
          Instruction Number 4 said, “[i]n order to convict Sharif

            Abdulla of Sexual Assault, you must either unanimously

            agree that Mr. Abdulla committed the same act or acts,

            or that he committed all of the acts alleged.” This

            unanimity instruction was fashioned after the Colorado

            Model Jury Instructions.

          Instruction Number 11 provided the elements of sexual

            assault.

          Instruction Number 13 explained, “[t]he offense of Sexual

            Assault, as charged in the information in this case

            necessarily includes the lesser offense of Unlawful Sexual

            Contact.” The instruction then gave the elements of

            unlawful sexual contact.

          Instruction Number 18 was the defense theory of the

            case instruction. It said, in relevant part, “Mr. Abdulla is

            charged with two distinct crimes: Sexual Assault and

            Assault in the Third Degree.”

¶ 41   During the jury instruction conference, defense counsel did

  not request any changes to the unanimity instruction based on the




                                   20
  trial court’s decision to instruct the jury on the lesser included

  offense of unlawful sexual contact.

¶ 42   Both the prosecutor and defense counsel discussed the

  unanimity instruction in their closing arguments. In doing so,

  neither told the jury that the unanimity requirement applied only to

  the sexual assault charge. Instead, both told the jurors that they

  had to be unanimous when determining what actually happened, as

  a factual matter, in this case.

¶ 43   For example, when defense counsel explained unanimity to the

  jury, she did so by expressly referencing Instruction Number 4, but

  by applying it to the assault charge:

             For example, let’s say half of you believe that
             Mr. Abdulla hit his wife but that he didn’t use
             any belt. The other half of you say, you know
             what, I think he did use a belt. Do you know
             what the verdict is? Not guilty, because that is
             not a unanimous verdict. And unanimity is
             required by law. You can look at Instruction
             Number 4. That specifically tells you that is
             the law.

¶ 44   And the prosecutor’s explanation of unanimity to the jury was

  in the context of sexual assault, with a focus on the jury’s role as

  the fact finder:




                                    21
            Defense counsel also talked to you about this
            idea that you all have to be unanimous. Let’s
            talk about that. When you go back there,
            you’re going to probably start trying to sort out
            the facts, because you’re the trier of facts;
            you’re the ones who determine what happened.

            And you may say, okay, everyone seems to be
            in agreement that there was this - - that he
            put his penis in her mouth, oral penetration,
            fellatio; and that was done in between
            whoopings. That’s one. That’s guilty.

            If you agree on two, because that’s what the
            facts show, that’s guilty, you agree on three;
            you agree on every single time that he sexually
            penetrated her during and after whooping her,
            that’s guilty. You need to agree, but you only
            need to agree on one.

¶ 45   During jury deliberations, the jury asked one question: “[w]hat

  if we are unanimous on one count but can’t come to agreement on

  another?” The question came at about 4:30 p.m. on a Friday

  afternoon. Without answering the question, the trial court let the

  jury go home for the weekend. Then, after a few hours of

  deliberations on Monday morning, the jury returned its verdict.

                        2.    Standard of Review

¶ 46   “Trial courts have a duty to correctly instruct juries on all

  matters of law.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).




                                    22
  We review jury instructions de novo to determine “whether the

  instructions as a whole” correctly informed the jury of the law. Id.

¶ 47      As this issue was not preserved, the parties agree we review

  for plain error. See Hagos v. People, 2012 CO 63, ¶ 14. A plain

  error is an error that is both obvious and substantial. Id. Under

  this standard, we will reverse only if the error “so undermined the

  fundamental fairness of the trial itself so as to cast serious doubt

  on the reliability of the judgment of conviction.” Id. (quoting People

  v. Miller, 113 P.3d 743, 750 (Colo. 2005)). With respect to jury

  instructions, the defendant must “demonstrate not only that the

  instruction affected a substantial right, but also that the record

  reveals a reasonable possibility that the error contributed to his

  conviction.” People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)

  (quoting Bogdanov v. People, 941 P.2d 247, 255-56 (Colo. 1997)).

                             3.   Applicable Law

¶ 48      Section 16-10-108, C.R.S. 2019, requires that “[t]he verdict of

  the jury shall be unanimous.” The trial court must properly

  instruct the jury to ensure that a conviction on any count is the

  result of a unanimous verdict. See People v. Harris, 2015 COA 53,

  ¶ 39.


                                      23
¶ 49   When there is evidence of distinct multiple acts, the

  prosecution may be compelled to elect the act on which it relies for

  conviction or, alternatively, the defendant may be entitled to a

  special unanimity instruction. Melina v. People, 161 P.3d 635, 639

  (Colo. 2007); Quintano v. People, 105 P.3d 585, 593 (Colo. 2005).

              [W]hen the evidence does not present a
              reasonable likelihood that jurors may disagree
              on which acts the defendant committed, the
              prosecution need not designate a particular
              instance. If the prosecutor decides not to
              designate a particular instance, the jurors
              should be instructed that in order to convict
              the defendant they must either unanimously
              agree that the defendant committed the same
              act or acts or that the defendant committed all
              of the acts described by the victim and
              included within the time period charged.

  Thomas v. People, 803 P.2d 144, 153-54 (Colo. 1990).

         4.     We Find No Plain Error in the Jury Instructions

¶ 50   As an initial matter, both at trial and on appeal, the parties

  disagree regarding whether a unanimity instruction was necessary.

  The People argue that, because the evidence established one

  continuing course of conduct, there was no need for a unanimity

  instruction. See People v. Davis, 2017 COA 40M, ¶ 14.




                                    24
¶ 51   If the People are correct that this was only one criminal

  episode, then it follows that the trial court did not err, much less

  plainly err, by failing to give an additional unanimity instruction on

  the unlawful sexual contact charge. Id. But, at defense counsel’s

  urging, the trial court rejected the People’s argument and

  determined that a unanimity instruction was necessary.

¶ 52   We need not determine whether we could affirm on the

  alternative basis advocated by the People, however, because we

  discern no plain error in the instructions given, for two reasons.

¶ 53   First, the trial court gave a unanimity instruction that was

  agreed upon by the prosecution and the defense, albeit one that

  specifically referenced sexual assault; this is not a case in which the

  trial court failed to give a unanimity instruction at all.

¶ 54   Second, the jury was instructed that unlawful sexual contact

  was a lesser included offense of sexual assault, suggesting that any

  instruction regarding sexual assault applied equally to unlawful

  sexual contact. And the jury was instructed that it had to be

  unanimous regarding the specific act or acts, or as to all the acts,

  underlying the sexual assault. Accordingly, although the unanimity

  instruction specifically referenced the offense of sexual assault and


                                     25
  did not reference the offense of unlawful sexual contact, because

  the jury was nonetheless instructed that unlawful sexual contact

  was a lesser included offense of sexual assault, the unanimity

  instruction logically encompassed the lesser included offense.

¶ 55   It certainly would have been better for the unanimity

  instruction to have stated explicitly that it applied to both the

  greater and lesser offense. Still, under these circumstances, the

  trial court’s failure to give a separate, additional unanimity

  instruction was not erroneous, let alone obviously so.

¶ 56   However, even if the court erred, and that error was obvious,

  that error does not cast serious doubt on the reliability of the

  judgment of conviction. See Miller, 113 P.3d at 750. The record

  does not establish a reasonable possibility that the instructional

  error contributed to Abdulla’s conviction, Garcia, 28 P.3d at 344,

  because there is no reasonable possibility that the jury

  misunderstood its obligation to unanimously agree on which act or

  acts constituted unlawful sexual contact.

¶ 57   As noted above, the sexual assault unanimity instruction

  logically applied to the lesser included unlawful sexual contact

  charge. No one argued that the concept of unanimity was limited to


                                    26
  the sexual assault charge. On the contrary, in closing argument,

  Abdulla’s counsel explained the concept of unanimity to the jury by

  means of an example involving a physical assault. Accordingly,

  even though the unanimity instruction did not specifically refer to

  either unlawful sexual contact or third degree assault, the jury was

  told it needed to be unanimous as to the specific act or acts that

  Abdulla committed, even with respect to charges other than sexual

  assault.

¶ 58   Moreover, we employ the presumption that the jury

  understands and applies the given instructions unless a contrary

  showing is made, and there was no indication that the jury did not

  understand the instructions as a whole or the unanimity

  instruction in particular. See Quintano, 105 P.3d at 594-95

  (affirming the defendant’s convictions notwithstanding the jury’s

  expressed confusion regarding unanimity because “[a]s a whole, the

  record demonstrate[d] that the jury understood their tasks and

  arrived at some means of demarcating the various incidents of

  sexual contact”). Unlike in Quintano, the jury did not ask questions

  demonstrating confusion about the unanimity instruction. Id. at

  589. In fact, the only question the jury asked while it was


                                   27
  deliberating indicated it was not unanimous on one of the counts,

  thus demonstrating its general understanding of the need for a

  unanimous verdict on every count.

¶ 59   Thus, we discern no plain error in the jury instructions.

                               C.   Hearsay

¶ 60   Abdulla argues that the trial court erroneously admitted

  multiple hearsay statements and that the statements substantially

  influenced the verdict and affected the fairness of the trial

  proceedings. Specifically, he challenges the trial court’s admission

  of statements L.C. made to (1) a detective; (2) her sister; and (3) the

  sexual assault nurse examiner (SANE). We find no reversible error.

                         1.   Standard of Review

¶ 61   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Tyme, 2013 COA 59, ¶ 8. A trial court abuses

  its discretion when its ruling is manifestly arbitrary, unreasonable,

  or unfair, or if it misapplies the law. People v. Dominguez, 2019

  COA 78, ¶ 13.

¶ 62   Because Abdulla’s counsel objected to admission of this

  evidence at trial, we review for harmless error. People v. Pernell,

  2018 CO 13, ¶ 22. Under this standard, “an erroneous evidentiary


                                    28
  ruling does not require reversal unless the ruling affects the

  accused’s substantial rights.” Id. (quoting Nicholls v. People, 2017

  CO 71, ¶ 17). This determination necessarily results from “a case

  specific assessment of the likely impact of the error in question on

  the outcome of the litigation as a whole.” Id. (quoting People v.

  Rock, 2017 CO 84, ¶ 22). An error is harmless “if there is no

  reasonable possibility that it contributed to the defendant’s

  conviction.” Id.

                              2.    Applicable Law

¶ 63   Hearsay is “a statement other than one made by the declarant

  while testifying at the trial or hearing, offered in evidence to prove

  the truth of the matter asserted.” CRE 801(c). If a statement is

  hearsay, it is inadmissible unless it falls within an exception. CRE

  802. “The burden of establishing the preliminary facts to establish

  the hearsay exception is on the proponent of the evidence.” People

  v. Garcia, 826 P.2d 1259, 1264 (Colo. 1992).

                         3.        Excited Utterances

¶ 64   Hearsay may be admitted at trial if it constitutes an excited

  utterance — a statement relating to a startling event made while the

  declarant was under the stress of the excitement caused by the


                                        29
  event. See CRE 803(2). A statement may qualify under the excited

  utterance exception if

            (1) the occurrence or event was sufficiently
            startling to render inoperative the normal
            reflective thought processes of an observer; (2)
            the declarant’s statement was a spontaneous
            reaction to the event; and (3) direct or
            circumstantial evidence supports an inference
            that the declarant had the opportunity to
            observe the startling event.

  People v. King, 121 P.3d 234, 237-38 (Colo. App. 2005).

¶ 65   Factors to be considered in determining whether the statement

  was spontaneous include the lapse of time between the startling

  event and the out-of-court statement, whether the statement was

  made in response to an inquiry, whether the statement was

  accompanied by outward signs of excitement or emotional distress,

  and the choice of words employed by the declarant to describe the

  experience. People v. Compan, 100 P.3d 533, 536 (Colo. App. 2004),

  aff’d, 121 P.3d 876 (Colo. 2005). While there is no “bright-line time

  limitation” for an excited utterance, the statement must be a

  spontaneous reaction rather than the operation of “normal reflective

  thought processes.” People v. Stephenson, 56 P.3d 1112, 1115-16

  (Colo. App. 2001). The trial court is in the best position to consider



                                    30
  the effect of a startling event on a declarant, and it is afforded wide

  discretion in determining admissibility under the excited utterance

  hearsay exception. People v. Martinez, 18 P.3d 831, 835 (Colo. App.

  2000).

                     a.    The Detective’s Testimony

¶ 66   Abdulla argues that the trial court erred by admitting, as an

  excited utterance, L.C.’s statements made while she was at the

  police station at approximately 2 p.m. the day after the alleged

  incident.

¶ 67   L.C. testified that when she woke up the morning after the

  assault, she took a shower and went to church with her son. At

  church, she spoke with her pastor’s wife. And after church, she

  went to the police station with her son.

¶ 68   Detective Derek McCluskie testified at trial regarding L.C.’s

  initial report at the police station. The detective described L.C.’s

  demeanor upon arriving at the station as “fearful, visibly upset,

  crying, and distraught.” When the prosecutor asked the detective

  whether L.C. had “indicate[d] how [he] could help her,” Abdulla

  objected on hearsay grounds.




                                     31
¶ 69   The trial court overruled the objection, reasoning that L.C.’s

  statements to the detective fell within the excited utterance

  exception to hearsay. In support of its ruling, the trial court made

  the following record:

           “[T]here is no timeframe specifically for excited

             utterances.”

           Though the timeframe was unclear, it was “certainly

             some time, some hours after the alleged incident

             occurred.”

           “According to [Detective McCluskie], she was still under

             the trauma, if you will, excitement, stress of what had

             occurred to her according to the physical demeanor that

             has been described to us.”

           The detective’s description was “consistent with someone

             who is still seeing or feeling the effects of the trauma.”

¶ 70   Detective McCluskie then testified that L.C. reported that “her

  husband had made her take off her clothing, he whipped her with a

  belt and made her - - her words - - suck his dick, then had sex with

  her.” L.C. “didn’t tell [Abdulla] to stop for fear of further assault.”




                                     32
¶ 71   On appeal, Abdulla does not argue that the event L.C.

  described was not “startling” or that L.C. did not have the

  opportunity to observe it (nor could he, based on the evidence).

  Instead, he argues that too much time passed between the event

  and the statements and “that [L.C.] had regained her composure

  and exercised reflective thought,” as evidenced by having gone to

  church and spoken with the pastor’s wife before going to the police

  station. Under such circumstances, he argues, the statements were

  not excited utterances.

¶ 72   Abdulla is correct that the passage of time and L.C.’s

  intervening conduct both cut against the likelihood that the

  statement to the detective was an excited utterance. We

  acknowledge that “the excited utterance exception extends to

  statements made in response to questioning.” King, 121 P.3d at

  238 (citing People v. Hulsing, 825 P.2d 1027, 1031 (Colo. App.

  1991)). And we acknowledge that there is no bright line rule

  regarding the passage of time between the startling event and the

  excited utterance. Stephenson, 56 P.3d at 1115-16.

¶ 73   But at least a dozen hours had passed between the event and

  L.C.’s report to the detective, which is more time than has been


                                   33
  sanctioned by previous reported decisions of this court for adult

  excited utterances. Pernell, ¶¶ 27-35 (holding it was error to admit

  statements made twelve hours after a sexual assault because the

  declarant’s testimony indicated that she had “several independent

  interludes of reflective thought” before making the statements

  (quoting People v. Pernell, 2015 COA 157, ¶ 34)); Stephenson, 56

  P.3d at 1116 (holding it was error to admit statements made three

  hours after the declarant witnessed a shooting because there were

  “several independent interludes of reflective thought” that removed

  the required spontaneity from the declarant’s statements). And the

  trial court’s finding that L.C. was “still under the trauma” of the

  event when she was speaking with the detective would be

  insufficient by itself to support admitting the challenged statements

  under CRE 803(2). See Pernell, ¶¶ 31, 33. But even if the court

  erred by admitting the statement as an excited utterance, for the

  reasons set forth infra Part II.C.5, we conclude that any error was

  harmless.

                       b.   The Sister’s Testimony

¶ 74   Abdulla also argues that the trial court erred by admitting,

  under the excited utterance exception to hearsay, statements L.C.


                                    34
  made during a phone call with her younger sister the day after the

  alleged incident.

¶ 75   Although L.C.’s sister testified that L.C. called her before L.C.

  went to the police station, L.C. testified that she called her sister

  after she had been at the police station. Her sister testified that

  when L.C. called, L.C. was “quiet . . . shaky . . . real shaky like she

  was scared” and that she “could tell that she was crying” and that

  something was wrong. When the prosecutor asked her, “What did

  she tell you?” Abdulla’s attorney objected on hearsay grounds.

¶ 76   The trial court overruled the objection, reasoning that L.C.’s

  statements to her sister satisfied the excited utterance exception to

  the hearsay rule. In support of its ruling, the trial court made the

  following record:

           The incident occurred on the evening of Saturday,

             January 23, sometime after 7 p.m.

           The phone call occurred early the next morning.

           “This is her sister, whom she’s close to.”

           “[L.C.] was crying. She appeared scared. Her - - her

             voice was different, soft.”

           “[S]he was crying as she relayed the information.”

                                     35
           “The important thing about excited utterance, leaving

             aside the time frame, which is close in time here in terms

             of the number of hours, but, secondly, the person

             appears to be still under the stress of the trauma,

             emotion of the incident that was being discussed at that

             time.”

¶ 77   L.C.’s sister then testified that L.C. told her “that her and her

  husband had gotten into a fight, and he had beat her with a belt

  and raped her.”

¶ 78   Again, Abdulla does not challenge the nature of the event L.C.

  reported to her sister or L.C.’s ability to observe it; instead, he

  argues that the lengthy time lapse between the event and the

  statement and the evidence that L.C. had regained her composure

  and reflected cause the statements to fall outside the excited

  utterance exception to the hearsay rule.

¶ 79   We have the same concerns about the admission of L.C.’s

  statements to her sister as we do regarding L.C.’s statements to the

  detective. A significant amount of time had passed between the

  event and the statement, and it appears that L.C. had several

  independent interludes of reflective thought during that interval.


                                     36
  But, again, even if the trial court abused its discretion by admitting

  L.C.’s statement to her sister, for the reasons set forth infra Part

  II.C.5, we conclude that any error was harmless.

       4.   Statements Made for Medical Treatment or Diagnosis

¶ 80   Hearsay statements may be admitted if they are “[s]tatements

  made for purposes of medical diagnosis or treatment and describing

  medical history, or past or present symptoms, pain, or sensations,

  or the inception or general character of the cause or external source

  thereof insofar as reasonably pertinent to diagnosis or treatment.”

  CRE 803(4). Statements made to a medical professional are

  presumptively reliable due to the declarant’s general belief that

  providing truthful information to medical professionals will assist in

  effective diagnosis and treatment. People v. Galloway, 726 P.2d

  249, 252 (Colo. App. 1986). A statement made to a medical

  professional during an exam is admissible if (1) the statement is

  reasonably pertinent to treatment or diagnosis and (2) the content

  of the statement is such as is reasonably relied on by a physician in

  treatment or diagnosis. Tyme, ¶ 16.




                                     37
¶ 81   Abdulla contends that the trial court erred by admitting the

  hearsay testimony of the SANE, who recounted what L.C. told her

  regarding the alleged sexual assault.

¶ 82   The SANE testified that she first takes a “medical history from

  [the patient] about what happened, the events of the assault.” The

  medical history helps her identify injuries and determine whether

  the patient may need further treatment. She explained that she

  writes down what the patient says word for word. Then she

  conducts a “head-to-toe-body-surface exam looking for injury” while

  also “collecting evidence.” When the prosecutor said to the SANE,

  “So let’s talk about what she told you that you took down word for

  word,” Abdulla’s counsel objected on hearsay grounds.

¶ 83   The trial court overruled the objection, reasoning that L.C.’s

  statements to the SANE were admissible pursuant to the medical

  diagnosis exception. Citing Tyme, the trial court made the following

  record in support of its ruling:

           There is “ample case law” that “allows SANE testimony

             for a number of reasons.”

           One of the reasons SANE testimony is generally

             admissible is that “the patient has to consent.”

                                     38
           Another reason is that “a SANE nurse doing an

             examination collects evidence and statements from the

             alleged victim in order to determine what to relate to the

             doctor, what type of treatment is necessary, whether it be

             physical injuries, internal injuries.”

           The information the SANE nurse collects is for purposes

             of medical diagnosis and treatment.

¶ 84   The SANE then testified that L.C. told her that the assailant

  “hit [L.C.’s] arm and told her to call the police, and said that he

  wasn’t leaving until she called police.” Then he took away L.C.’s

  cellphones and went looking for something in the house. He said

  he “couldn’t find a wire hanger, so that’s when he took his belt off

  and hit her in the back with his belt and then made her get on her

  knees and put his penis in her mouth and then had her get on the

  bed and had sex with her, and then there was another time he had

  sex with her.” The SANE also said that “at one point in the

  morning, he told [L.C.] that if they don’t get an understanding this

  will happen again.”

¶ 85   On appeal, Abdulla challenges the admissibility of L.C.’s

  statements to the SANE (1) indicating that it was Abdulla who

                                     39
  assaulted her; (2) describing how Abdulla assaulted her; and (3)

  alleging that Abdulla made threats during the assault.2

¶ 86   As an initial matter, the record belies Abdulla’s contention

  that the trial court erred by allowing the SANE to testify that L.C.

  “indicat[ed] it was Mr. Abdulla who assaulted her.” The SANE did

  not identify Abdulla by name at any point during her testimony,

  and, even if she had, identity was not an issue in this case.

¶ 87   Given that one purpose of the SANE’s examination was to

  provide medical care or treatment to L.C., the trial court did not

  abuse its discretion by admitting most of the SANE’s testimony

  regarding what L.C. told her about the sexual assault, including

  L.C.’s “statements as to how [Abdulla] allegedly assaulted her.” See

  CRE 803(4).

¶ 88   But we agree with Abdulla that not all of the testimony fit the

  exception. The statements regarding (1) L.C.’s phones being taken

  away; (2) Abdulla looking for a wire hanger; and (3) the threat that


  2 We note that, after the trial court overruled defense counsel’s
  initial objection and ruled that the SANE’s testimony fell under the
  medical diagnosis exception to the hearsay rule, defense counsel
  did not renew the objection when the SANE relayed statements that
  would fall outside that exception. But the People do not challenge
  preservation of this issue, so we analyze it as if it were preserved.

                                    40
  “if they don’t get an understanding this will happen again” likely fall

  outside the exception. See People v. Jaramillo, 183 P.3d 665, 669

  (Colo. App. 2008) (concluding that the victim’s statements to a

  nurse practitioner were inadmissible hearsay because the

  challenged statements were not necessary for or pertinent to the

  nurse practitioner’s diagnosis or treatment).

¶ 89   But even if the trial court abused its discretion by admitting

  these statements, for the reasons set forth in the following section,

  we conclude that any error was harmless.

            5.    Any Error Admitting Hearsay Was Harmless

¶ 90   Even if the trial court erred by admitting L.C.’s statements to

  the detective, to her sister, and to the SANE under exceptions to the

  hearsay rule, we conclude that the error was harmless and reversal

  is not required. Hagos, ¶ 12; People v. Gaffney, 769 P.2d 1081,

  1088 (Colo. 1989) (“If a reviewing court can say with fair assurance

  that, in light of the entire record of the trial, the error did not

  substantially influence the verdict or impair the fairness of the trial,

  the error may properly be deemed harmless.”).

¶ 91   Abdulla admitted to a physical altercation and did not dispute

  that the sexual acts occurred; his defense was that L.C. had


                                      41
  consented. Indeed, the defense theory instruction stated, “[L.C.]

  and her husband, Sharif Abdulla, had a verbal argument about him

  being out all night on Friday. The fight became physical and

  thereafter, [L.C.] consented to all sexual acts with Mr. Abdulla.”

  Thus, any hearsay statements about the physical acts were largely

  cumulative and related to uncontested facts. See People in Interest

  of R.D.H., 944 P.2d 660, 664 (Colo. App. 1997) (determining that

  any error in allowing a social worker to testify as to mother’s history

  of drug use was harmless because the challenged evidence was

  cumulative); see also Jaramillo, 183 P.3d at 669 (noting the

  improperly admitted hearsay statements were related to

  uncontested facts and concluding any error in the admission of the

  challenged statements was harmless).

¶ 92   To the extent that the hearsay statements related to the

  contested issue of consent, they appear not to have had an impact

  on the jury. People v. Harris, 43 P.3d 221, 231 (Colo. 2002)

  (considering, among other things, whether the impact the

  erroneously admitted hearsay evidence had on the jury was

  significant). At trial, L.C. admitted that she did not indicate to

  Abdulla that any of the sexual acts were nonconsensual; rather, she


                                    42
  said she was too scared to tell him no. The jury was able to judge

  L.C.’s credibility for itself. By acquitting Abdulla of sexual assault,

  it appears the jury did not believe L.C. that the sex was

  nonconsensual or that she communicated her lack of consent to

  Abdulla.

¶ 93   To the extent that the hearsay statements related to the

  contested issue of exactly how Abdulla assaulted L.C., the

  prosecution offered strong, corroborating evidence, including L.C.’s

  own testimony at trial, pictures of L.C.’s injuries, and the SANE’s

  testimony that L.C.’s injuries were consistent with what L.C.

  reported to her. Blecha v. People, 962 P.2d 931, 944 (Colo. 1998)

  (determining that any error in the improperly admitted hearsay

  statements was harmless because there was “persuasive

  corroborative evidence”).

¶ 94   In addition, had the improperly admitted statements been

  offered after L.C. testified, they may have been admitted as prior

  consistent statements. See CRE 801(d)(1)(B). The trial court even

  alluded to this when overruling Abdulla’s objection to the detective’s

  testimony when it said, “In addition, I don’t know this, I haven’t

  heard from the alleged victim, [but it] might be a prior consistent or


                                     43
  inconsistent statement.” L.C. did testify and, on cross-examination,

  defense counsel attacked her credibility, impeached her with prior

  inconsistent statements, and suggested she had an ulterior motive

  for making allegations against her husband. See People v. Eppens,

  979 P.2d 14, 21-22 (Colo. 1999).

¶ 95   Abdulla argues the acquittal on the sexual assault charge

  demonstrates that “this was a very close case,” thus increasing the

  likelihood that “[a]dmission of the improperly admitted hearsay

  statements . . . may have tipped the balance in favor of a jury

  determination that, although he had not committed the sexual

  assault, Mr. Abdulla had been abusive and should be found guilty

  of some sort of sexual misconduct.” We disagree. If the jury was

  improperly influenced, it would have been more likely to have

  convicted of the greater offense. Instead, its verdict demonstrates it

  was not improperly swayed by what L.C. said to the detective, her

  sister, or the SANE; rather, it was thoughtful and deliberate in its

  decision.

¶ 96   Ultimately, we conclude that any erroneous admission of

  hearsay statements was harmless as it did not substantially




                                     44
  influence the verdict or affect the fairness of the trial proceedings.

  Yusem v. People, 210 P.3d 458, 469 (Colo. 2009).

                             III.   Conclusion

¶ 97   The judgment of conviction is affirmed.

       JUDGE J. JONES and JUDGE HARRIS concur.




                                     45
