     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
                                                                June 25, 2020

                               2020COA100

No. 17CA0444, People v. Yachik — Evidence — Res Gestae

     A division of the court of appeals considers whether the trial

court erroneously admitted evidence that defendant repeatedly

subjected the victim to extreme physical abuse as res gestae for the

charged sexual assaults. This evidence was admitted at trial on the

theory that it provided the jury with context for the family dynamics

and background against which the charged crimes occurred.

However, the division concludes that it was irrelevant, prejudicial,

and encouraged the jury to convict defendant based upon the

impermissible inference that he had a bad character. Therefore, the

division concludes that the trial court abused its discretion by

admitting the physical abuse evidence as res gestae.
     The division also considers two issues that are likely to arise

on remand: the admission of expert testimony about “negative

grooming” and the prosecution’s theme in closing argument that

defendant “groomed the jury” throughout the trial.

     The division concludes that, should the prosecution seek to

admit such expert testimony in defendant’s new trial, the trial court

shall make specific findings on the record regarding the relevance

and reliability of the evidence before deciding whether to admit it.

Finally, comments that defendant “groomed the jury” are improper

and shall not be permitted.

     Accordingly, the division reverses and remands for a new trial.
COLORADO COURT OF APPEALS                                        2020COA100


Court of Appeals No. 17CA0444
Larimer County District Court No. 15CR1475
Honorable Gregory M. Lammons, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremy Neal Yachik,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division II
                          Opinion by JUDGE ROMÁN
                          Tow and Pawar, JJ., concur

                          Announced June 25, 2020


Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Jeremy Neal Yachik, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of two counts

 of sexual assault on a child by one in a position of trust as part of a

 pattern of abuse against his biological daughter, S.Y. See

 § 18-3-405.3(1), (2), C.R.S. 2019. Specifically, he contends that the

 trial court erred by erroneously admitting evidence that he

 subjected S.Y. to physical abuse. This evidence was proffered by

 the prosecution — and accepted by the trial court — as res gestae

 of the family dynamics and background against which the charged

 crimes occurred. Additionally, defendant contends that the court

 erroneously admitted unreliable and irrelevant expert testimony

 about “negative grooming,” without making specific findings

 regarding its admissibility. How the prosecution used the physical

 abuse evidence and the expert testimony about grooming in its

 case-in-chief and closing argument form the basis of defendant’s

 third contention: prosecutorial misconduct. In particular,

 defendant challenges the prosecution’s multiple comments made

 during closing argument that defendant “groomed the jury”

 throughout the trial.




                                    1
¶2    For the reasons that follow, we conclude that defendant’s

 convictions must be reversed and the case remanded for a new trial.

                          I.   Background

¶3    According to the People’s evidence, the first charged sexual

 assault happened around August 2010 after defendant came home

 from the hospital, where his son was being treated for a severe

 illness. S.Y., who was in the eighth grade, had stayed home from

 school that day. Defendant told S.Y. he heard a radio show about

 daughters who wanted to date their fathers before asking her to lie

 down on his bed and pull down her pants. He then inserted a

 vibrator into her vagina. She removed it and put her pants back

 on. Defendant got on top of her and threatened to rape her if she

 told anyone what happened. Then he took a nap.

¶4    The second charged incident occurred in 2011 or 2012, when

 S.Y. was in ninth grade. She was cleaning dishes at the kitchen

 sink when defendant came up behind her and put one hand on her

 breasts and another hand near her vagina. S.Y. was fully clothed at

 the time. Defendant stopped when she told him she thought

 someone was coming downstairs.




                                  2
¶5    S.Y. told defendant’s ex-girlfriend about these incidents

 around August 2014. S.Y. was living with the ex-girlfriend, who

 was involved in an ongoing custody dispute with defendant over

 their son.

¶6    The People charged defendant with two counts of sexual

 assault on a child. At trial, the People introduced extensive and

 graphic evidence of the physical abuse defendant perpetrated

 against S.Y. and asserted that he groomed her and the jury to get

 away with his wrongdoing. They painted a picture of a controlling

 defendant and a fearful victim.

¶7    The jury found defendant guilty as charged. He received

 consecutive sentences of sixteen years to life on each charge.

                       II.    Res Gestae Evidence

¶8    Defendant contends that the trial court erroneously admitted

 evidence that he repeatedly subjected S.Y. to “horrific acts of child

 abuse” as res gestae for the charged sexual assaults. He

 specifically asserts that this evidence was not only irrelevant and

 highly prejudicial, but it encouraged the jury to convict him of the

 charged sexual assault crimes based on prior misconduct and

 “perceived bad character.”


                                    3
¶9     The People respond that the trial court properly admitted this

  evidence as res gestae because it helped the jury understand (1) the

  control defendant exercised over S.Y.; (2) why she lied to protect

  him; and (3) why she delayed reporting despite frequent contact

  with law enforcement and human services.

¶ 10   Because we agree this was improperly admitted as res gestae

  evidence, we reverse and remand.

                          A.    Relevant Facts

¶ 11   In 2013, defendant’s ex-girlfriend sent a video to law

  enforcement showing defendant hitting and kicking S.Y. for taking

  carrots from the refrigerator without permission (the carrot video).

  The carrot video prompted an investigation that resulted in

  defendant being charged with, and pleading guilty to, misdemeanor

  child abuse.

¶ 12   In 2016, the prosecution in the sexual assault case filed a

  pretrial motion seeking to admit as res gestae the carrot video and

  other physical abuse evidence collected during the 2013 child abuse

  investigation. According to the prosecution, the physical abuse

  evidence was “part and parcel of th[e] evolving [sexual assault]

  criminal episode.” The sexual abuse allegations and the physical


                                    4
  abuse “involve[d] the same period of time” and “[a]ny observations of

  the defendant’s behavior towards [the victim] during and near that

  time period [were] crucial to give context and explain the entire

  criminal episode.”

¶ 13   Defense counsel objected because “the child abuse allegations

  [were] not integral to the charges,” were “not relevant,” and “the

  minimal probative value [was] vastly outweighed by their prejudicial

  impact.” Instead, the prosecution was seeking to “convict

  Defendant of the current charges based upon his perceived bad

  character and alleged prior bad acts.” Defense counsel pointed out

  that the child abuse involved “physical punishment or deprivations

  for bad behavior,” not punishments to procure sex. And, in the

  sexual assault case filings, there were no similar allegations that

  defendant sexually assaulted S.Y. because she behaved badly or as

  a form of punishment. Moreover, according to defendant, the

  “story” of the sexual assaults could be understood without any

  reference to the physical abuse. Therefore, defense counsel

  contended that the evidence should not be admitted under res

  gestae, CRE 403, or any other theory.




                                    5
¶ 14   The district court admitted the evidence as res gestae. In a

  written order, it ruled that

             [t]he family dynamics and interactions between
             the Defendant and alleged victim are relevant
             to give context to the jury. They are relatively
             contemporaneous in time and involve the same
             actors. That said, it is not proper for the
             People to introduce any evidence regarding
             charges or convictions that arose out of
             L13M1456 [the child abuse case]. Whether the
             Defendant wishes to do so is his decision. The
             Court notes that in the Defendant’s Motion for
             Specific Discovery, he asserts that L13M1456
             contains exculpatory information related to the
             charged offenses. It is inconsistent to now
             assert that the two cases are not relevant to
             one another.

  The court did not address Rule 403 in its written ruling.

¶ 15   At trial, S.Y. testified extensively about the physical abuse that

  defendant perpetrated against her “almost daily” during the years

  that she lived with him. At the prosecutor’s prompting, she detailed

  for the jury how defendant would force her to eat hot sauce

  concoctions, zip tie her hands behind her back and lock her in a

  dark room for hours, kick her, beat her, choke her, spray her eyes

  with police department grade pepper spray, deprive her of food, and

  force her to endure extreme exercise without rest. She also




                                    6
  described the scars she still had from those experiences and the

  stomach problems that still caused her pain.

¶ 16   Defendant’s ex-girlfriend also testified that defendant

  physically abused S.Y. “[a]lmost on a daily basis.” While she

  described many of the same incidents of abuse that S.Y. had, she

  also described how S.Y. was forced to sleep outside and was hit

  with “a spatula, wooden spoons, [and a] belt.” She even testified

  that the “abuse was getting so severe that [she] was afraid

  [defendant] was going to kill [S.Y.].”

¶ 17   At the close of evidence, the parties discussed a limiting

  instruction on the res gestae. Although such an instruction was

  not required, the court was “convinced in this case it is

  appropriate . . . because we’ve heard so much about the child

  abuse.” So the court gave the following instruction:

             The Defendant is not charged with child abuse
             in this case. The evidence you heard related to
             the allegations of physical abuse of [S.Y.] has
             been admitted for the limited purpose of
             providing the jury with a full and complete
             understanding of the events surrounding the
             charged crimes and the context in which the
             charged crimes occurred.




                                      7
¶ 18   In closing argument, the prosecutor reminded the jury of the

  physical abuse evidence:

             And I know the defense, they will say, think
             about how crazy it is that a guy would come
             home from dropping his kid off at the hospital
             and commit this and take a nap. But keep in
             mind, you are not thinking and analyzing his
             actions from a rational person such as
             yourself. You’ve got to think about this from
             the perspective of someone who wants to
             commit that sexual assault on a child and
             would do the behaviors that you saw on that
             [carrot] video and do the behaviors that are
             described. You can’t look at that in a, well, I
             wouldn’t do that, because you wouldn’t do the
             rest of it.

¶ 19   The prosecutor implored the jury to watch the carrot video

  during its deliberations and asked it to “[l]ook at that evidence,

  think about what this girl went through, think about what she told

  you and described,” and find defendant guilty.

              B.   Standard of Review and Applicable Law

¶ 20   “We review the admission of evidence for an abuse of

  discretion.” People v. Trujillo, 2014 COA 72, ¶ 60. A court abuses

  its discretion when its ruling is manifestly arbitrary, unreasonable,

  or unfair. Id.




                                     8
¶ 21   “All relevant evidence is admissible unless otherwise provided

  by constitution, statute, or rule.” Yusem v. People, 210 P.3d 458,

  463 (Colo. 2009) (citing CRE 402). Relevant evidence is evidence

  that has “any tendency to make the existence of any fact that is of

  consequence to the determination of the action more probable or

  less probable than it would be without the evidence.” Id. (quoting

  CRE 401). But relevant evidence can be excluded “if its probative

  value is substantially outweighed by the danger of unfair prejudice”

  or “if it is used to prove the character of a person in order to show

  that he acted in conformity with that character on a particular

  occasion.” Id. (citing CRE 403, 404(b)).

¶ 22   Evidence of other crimes, wrongs, or acts cannot be

  introduced to show a person acted in conformity with his or her bad

  character. CRE 404(b); People v. Spoto, 795 P.2d 1314, 1318 (Colo.

  1990). “This rule is based upon the fear that the jury will use

  evidence that the defendant has committed other bad acts to

  convict the defendant of the charged offense.” People v. Quintana,

  882 P.2d 1366, 1372 (Colo. 1994). “‘Other act’ evidence, however,

  generally occurs at different times and under different

  circumstances from the charged offense.” Id. By contrast,


                                     9
  “[e]vidence that is contemporaneous with and serves to illustrate

  the character of the crime charged” does not fall under CRE 404(b),

  but rather is res gestae evidence. People v. Rollins, 892 P.2d 866,

  873 (Colo. 1995).

¶ 23   Res gestae evidence “provides the fact-finder with a full and

  complete understanding of the events surrounding the crime and

  the context in which the charged crime occurred, including events

  closely related in time and nature to the charged offense.” People v.

  Martinez, 24 P.3d 629, 633 (Colo. App. 2000); see also Quintana,

  882 P.2d at 1373 (“Evidence of other offenses or acts that is not

  extrinsic to the offense charged, but rather, is part of the criminal

  episode or transaction with which the defendant is charged, is

  admissible to provide the fact-finder with a full and complete

  understanding of the events surrounding the crime and the context

  in which the charged crime occurred.”). Res gestae is “matter

  incidental to the main fact and explanatory of it, including acts and

  words which are so closely connected therewith as to constitute a

  part of the transaction, and without knowledge of which the main

  fact might not be properly understood.” Rollins, 892 P.2d at 872-73

  (quoting Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991)).


                                    10
¶ 24   Res gestae evidence need not meet the procedural

  requirements of Rule 404(b) but is instead admissible if it is

  relevant and if its probative value is not substantially outweighed

  by the danger of unfair prejudice. People v. Czemerynski, 786 P.2d

  1100, 1109 (Colo. 1990).1

                              C.   Analysis

¶ 25   We are not persuaded that the physical abuse evidence was

  admissible as res gestae of the charged sexual assaults because the

  incidents are not “inextricably intertwined,” People v. Coney, 98

  P.3d 930, 933 (Colo. App. 2004), such that the physical abuse

  evidence was “necessary to complete the story” of the sexual




  1Defendant argues that res gestae is a “discredited” doctrine that
  has been abrogated by the Colorado Rules of Evidence. However,
  our supreme court has acknowledged and analyzed the res gestae
  doctrine in numerous cases. See, e.g., Zapata v. People, 2018 CO
  82, ¶¶ 58-60; People v. Quintana, 882 P.3d 1366, 1373 (Colo. 1994).
  But see Zapata, ¶ 76 (“There is . . . good reason for this court, in an
  appropriate case, to consider whether the doctrine [of res gestae]
  has been rendered obsolete by modern rules of evidence. It is a
  vague and nearly standardless concept that is applied too
  expansively to admit otherwise inadmissible evidence.”) (Hart, J.,
  specially concurring). Because we are bound to follow supreme
  court precedent, we decline defendant’s invitation to reconsider the
  doctrine in this case. People v. Harmon, 2019 COA 156, ¶ 3 n.1.


                                    11
  assaults for the jury, People v. Miranda, 2014 COA 102, ¶ 47

  (citation omitted).

                        1.   Admissibility as Res Gestae

¶ 26   The prosecutor elicited testimony throughout defendant’s trial

  about the extreme physical abuse that S.Y. endured. According to

  the People, this evidence was relevant to show the family dynamics

  and interactions between defendant and S.Y. and also to explain

  why S.Y. delayed reporting.2

¶ 27   But the physical abuse evidence was not critical to the jury’s

  understanding of the charged crimes because nothing in the record

  linked those incidents in time or circumstance. Indeed, S.Y.

  testified about the sexual assaults without making any reference to

  physical abuse. In response to the prosecutor’s question about

  whether she feared physical abuse if she told anyone about the

  vibrator incident, S.Y. answered “[n]o, I did not.” Instead, she

  believed she would be in “big trouble” if she told anyone, meaning

  she would “just be grounded.”




  2 The prosecution did not seek to admit the physical abuse evidence
  for any of these specific purposes under CRE 404(b); however, we
  discuss Rule 404(b) in greater detail infra Part II.C.2.

                                      12
¶ 28   The physical abuse evidence certainly gave the jury a clearer

  picture of the violence and volatility S.Y. suffered at home, but the

  jury did not need to know about the pepper spray, hot sauce

  concoctions, choking, and food deprivation to understand the

  “story” of the sexual assaults. This conclusion is made more

  apparent because there is no evidence S.Y. was physically abused

  in connection with the sexual assaults (i.e., to procure sex, to

  punish her for resisting sexual advances, or to secure her silence).

  Cf. People v. Mosley, 2019 COA 143, ¶ 37 (cert. granted Mar. 30,

  2020) (describing res gestae as evidence that is “generally so

  intertwined with the time and circumstances of the offense that its

  exclusion would leave a void in the account”). Instead, S.Y. was

  punished for alleged lying, poor communication, and not doing her

  chores.

¶ 29   The prosecution also suggested at trial that the ongoing threat

  of physical abuse might have explained why S.Y. delayed reporting

  the sexual assaults. Cf. People v. Rojas, 2020 COA 61, ¶ 43

  (Furman, J., dissenting) (“Res gestae evidence is evidence of acts or

  words that are integral, natural, or necessary parts of the crime, not

  of the investigation of the crime.”). But when S.Y. was asked why


                                    13
  she had not reported earlier, she provided various reasons,

  including that she “didn’t know why,” she must have “forgotten” to

  mention it, she did not know what would happen to herself and her

  little brother, she was not sure where she would live, she did not

  want to ruin defendant’s relationship with his ex-girlfriend, she was

  ashamed, and defendant told her not to say anything.

¶ 30   Thus, rather than being “an integral and natural part of an

  account of [the] crime” or “necessary to complete the story of the

  crime for the jury,” People v. Abu-Nantambu-El, 2017 COA 154, ¶ 39

  (quoting People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009)), aff’d,

  2019 CO 106, the physical abuse evidence described specific

  instances of defendant’s prior bad acts and showcased his bad

  character at various times and of a dissimilar nature to the charged

  crimes. The physical abuse was extrinsic to the charged sexual

  assaults and, as such, cannot be characterized as res gestae. See

  Rollins, 892 P.2d at 873 (concluding that defendant’s three

  uncharged sexual incidents against victim were not res gestae in

  sexual assault trial because they occurred under different

  circumstances and in different locations than the charged conduct).




                                   14
¶ 31   Contrary to the People’s assertions, the situation here is

  unlike those in Quintana, Mosley, Miranda, and Rojas. In each of

  those cases, res gestae was admissible because it related to the

  charged crime and filled an evidentiary gap without which the jury

  might be left confused.

¶ 32   In Quintana, 882 P.2d at 1373-74, the supreme court

  considered whether three statements the defendant made about

  killing people were admissible in his murder trial. The court

  concluded the statements were res gestae of the charged crimes

  because they were made during and immediately after the murder,

  were “all linked in time to a single criminal episode,” “form[ed] a

  natural part of the criminal episode as a whole,” and “serve[d] to

  illustrate the character of defendant’s actions.” Id. at 1374.

  Specifically, the statements allowed the jury to “view the criminal

  episode in context and to draw appropriate inferences from the

  evidence.” Id.

¶ 33   In Mosley, a division of this court affirmed the admission as

  res gestae of evidence showing that defendant was involved in an

  altercation in a strip club before the charged assault in a parking

  lot. 2019 COA 143. “Importantly, the two incidents were estimated


                                    15
  to have taken place between ten and twenty minutes apart, and the

  evidence was relevant to establish the character of Mosley’s

  actions.” Id. at ¶ 38. That is, the evidence showed not only why the

  defendant left the club, but also why he was angry and aggressive

  when he encountered the victims, whom he believed were part of

  the same group he confronted inside the club. Id. at ¶¶ 33, 38.

¶ 34   And in Miranda, ¶ 41, the defendant challenged the admission

  as res gestae of seven instances showing that he had groomed the

  victim and engaged in escalating sexual behaviors with her. The

  prosecutor argued that this evidence “help[ed] illustrate for the jury

  the relationship between [Miranda] and the victim, and the ongoing

  sexualized grooming behavior of [Miranda] that played into, and set

  the stage for, the crimes charged against him.” Id. at ¶ 43. Without

  such evidence, the jury might be left with “the mistaken impression

  that the two instances charged as crimes occurred out of the blue.”

  Id. A division of this court concluded the evidence was admissible

  because the charged offenses and grooming acts occurred over

  “approximately the same two-year period” and “showed ‘a highly

  sexualized relationship as initiated by the defendant,” which was

  “probative of his intent.” Id. at ¶¶ 51-52. And the res gestae


                                    16
  showed a “clear pattern of repeated criminal and sexual conduct,”

  including “rewards and punishment based on compliance with

  [defendant’s] sexual demands.” Id. at ¶ 53 (citation omitted); see

  also People v. Rudnick, 878 P.2d 16, 18-19 (Colo. App. 1993)

  (upholding admission of res gestae evidence of defendant’s heated

  argument prior to a traffic altercation, which resulted in the

  defendant firing at, and killing, the driver of the other vehicle).

¶ 35   And finally, in Rojas, ¶ 13, the defendant contended that the

  trial court erroneously admitted res gestae of a false application for

  food stamps in her trial for making another false application. A

  majority of the division disagreed, concluding that the res gestae

  was probative of the defendant’s “mental state and intent to

  knowingly provide false information on food stamp applications,

  and it demonstrated that she had knowingly received a thing of

  value of another by deception,” and so was “‘part and parcel’ of the

  crime charged.” Id. at ¶ 22 (quoting Callis v. People, 692 P.2d 1045,

  1051 n.9 (Colo. 1984)).

¶ 36   This case is distinguishable from each of those cases. The

  physical abuse evidence does not fill in any missing pieces in the

  “story” of the sexual assaults nor does it assist the jury in drawing


                                     17
  appropriate inferences from the evidence. For instance, there is no

  evidence here of “a highly sexualized relationship” between

  defendant and S.Y. or escalating sexual demands or conduct. Cf.

  Miranda, ¶¶ 51-52. Additionally, there is no evidence that

  defendant punished S.Y. based on her compliance (or lack thereof)

  with his sexual demands, and S.Y. denied fearing physical abuse if

  she told anyone about the sexual assaults. And, unlike in Rojas,

  the People do not assert, and the evidence does not support, that

  the physical abuse evidence provided a motive or intent for the

  sexual assaults. To the contrary, S.Y. and defendant’s ex-girlfriend

  testified that the physical abuse was punishment for S.Y.’s other,

  unrelated bad behaviors.

¶ 37   For all these reasons, we conclude that the trial court abused

  its discretion by admitting the physical abuse evidence as res

  gestae.

                          2.    Harmless Error

¶ 38   Where, as here, an error is preserved by a contemporaneous

  objection, we review it for harmlessness. Hagos v. People, 2012 CO

  63, ¶ 12. Under this standard, reversal is warranted if the error

  affects the substantial rights of the parties, meaning that it


                                    18
  “substantially influenced the verdict or affected the fairness of the

  trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342

  (Colo. 1986)); see also Zapata v. People, 2018 CO 82, ¶ 61.

¶ 39   In making this determination, we consider “the specific nature

  of the error committed and the nature of the prejudice or risk of

  prejudice associated with it.” Zapata, ¶ 62 (quoting Crider v. People,

  186 P.3d 39, 43 (Colo. 2008)).

¶ 40   For guidance on whether this error is harmless, we look to the

  Colorado Supreme Court’s Zapata decision. In that case, the

  defendant appealed his convictions for attempted first degree

  murder and first degree assault against a convenience store clerk.

  Id. at ¶ 2. He asserted that the trial court erroneously admitted res

  gestae of his “threatening, harassing, and physically abusive

  behavior” toward his ex-girlfriend and others close to her to show

  his jealousy and motive to attack the victim. Id. at ¶¶ 15, 57. The

  supreme court concluded, however, that any error was harmless.

  The “record reveal[ed] strong evidence” of defendant’s guilt,

  including incriminating photographs, text messages, and

  surveillance video footage. Id. at ¶ 66. “[G]iven the strength of the

  other evidence against Zapata and the implausibility of [his]


                                    19
  ‘innocent bystander’ theory of the case, [the supreme court did] not

  believe the uncharged misconduct was so prejudicial as to

  substantially influence the verdict or impair the fairness of the

  trial.” Id. at ¶ 67.

¶ 41   Conversely, in this case, there exists a very real probability

  that the physical abuse evidence “substantially influence[d] the

  verdict” and “impair[ed] the fairness of the trial.” Id. Indeed, the

  way the prosecution used the physical abuse evidence in its closing

  highlights its harmfulness and the impropriety of its admission.

  Multiple times, the prosecutor implored the jury to revisit the carrot

  video and remember “what [the] victim went through.” The

  prosecutor also asked whether it was “so unbelievable that [the

  victim] was scared to disclose the [sexual] abuse when that’s what

  her daily life was?” And, the prosecutor explained that the victim’s

  memory loss made sense because there were only three incidents3

  of sexual assault but daily incidents of physical abuse.


  3 S.Y. testified that, when she was six years old, there were a few
  times when she would get out of the bathtub and defendant would
  ask to check her bottom “to make sure [she] cleaned it right.” He
  told her to bend over and look away, then she felt something “hard”
  and “wet” on her behind. These incidents were not charged;


                                    20
¶ 42   On this record, we conclude the error in admitting the

  evidence as res gestae was not harmless. Reading through the trial

  transcript, one might easily forget that defendant was on trial for

  sexual assault and believe he was also on trial for charges of child

  abuse. The prosecutor used this evidence to paint the defendant in

  a bad light and appeal to the jury’s emotions. Thus, the physical

  abuse evidence “served the prohibited purpose of demonstrating the

  defendant’s purported threatening and violent bad character,” and

  nothing more. Id. at ¶ 73 (Hart, J., specially concurring).

¶ 43   Further, we conclude there is a reasonable probability that the

  graphic, extensive, and detailed physical abuse evidence

  contributed to defendant’s conviction. And although the court gave

  a limiting instruction,4 it merely said that the evidence could be

  used for “context.” It did not instruct the jury that defendant could




  however, they were listed on the verdict forms as an “additional act”
  for the jury’s consideration of whether defendant committed the
  charged conduct as part of a pattern of abuse.
  4 We recognize that no limiting instruction is required when

  evidence is admitted as res gestae. People v. Griffiths, 251 P.3d
  462, 467 (Colo. App. 2010). Nevertheless, because the trial court
  provided one, it is appropriate to consider whether the instruction
  may have mitigated any error. See People v. Thomeczek, 284 P.3d
  110, 114-15 (Colo. App. 2011).

                                    21
  not be convicted because he was physically abusive, and it did not

  limit the use of the evidence to explain why S.Y. did not report the

  sexual assaults. Because the jury’s consideration of the res gestae

  was not limited to a specific purpose, the prosecutor repeatedly

  encouraged it to keep the physical abuse evidence at the top of its

  mind when deliberating on whether defendant was guilty of the

  charged sexual assaults. Thus, the limiting instruction itself was

  deficient and did nothing to mitigate the harm to defendant of the

  admission of the res gestae evidence. See Yusem, 210 P.3d at 470

  (“Additionally, the jury instructions did nothing to limit the

  prejudice and arguably served only to confuse the jury and permit

  them to rely on the inference of bad character.”).

¶ 44   The People make the alternative argument that, even if the

  evidence was not admissible as res gestae, its admission was

  harmless because it could have been admitted under CRE 404(b).

  Before admitting Rule 404(b) evidence, a trial court must make

  pertinent findings regarding the admissibility of the other bad act

  evidence. See People v. Garner, 806 P.2d 366, 372 n.4 (Colo. 1991);

  Spoto, 795 P.2d at 1318. Failure to do so is not reversible error if

  the record supports the trial court’s admission of the evidence.


                                    22
  People v. Martinez, 36 P.3d 154, 158 (Colo. App. 2001). However,

  the trial court here did not exercise its discretion in this context, so

  we are not equipped on this record to determine whether the

  evidence would have been admissible on these grounds.

¶ 45   In addition, had the trial court admitted this evidence under

  Rule 404(b), the required limiting instruction would have identified

  the particular evidentiary purpose for which the evidence was

  admitted, rather than merely stating that the evidence was “for

  context.”

¶ 46   Thus, although we conclude that the admission of the

  evidence as res gestae was not harmless, we express no opinion as

  to whether on retrial the physical abuse evidence would be

  admissible under Rule 404(b).

¶ 47   Because we cannot say with fair assurance that the error in

  admitting this evidence did not substantially influence the verdict,

  we reverse defendant’s convictions and remand the case for a new

  trial in which this evidence should be excluded.

                         III.   Other Contentions

¶ 48   Because we anticipate that these issues may arise on remand,

  we briefly address defendant’s contentions that the trial court


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  erroneously admitted expert testimony about offender grooming

  behaviors and that the prosecutor committed misconduct by

  arguing that defendant “groomed the jury.”

                   A.    Expert Testimony on Grooming

¶ 49   Kandy Moore testified for the prosecution as a blind expert.5

  The defense raised objections pretrial about the reliability and

  relevance of her testimony and maintained a continuing objection to

  her trial testimony.

¶ 50   The prosecution offered Moore as an expert in several areas,

  including the “behaviors and dynamics of adult perpetrators of

  sexual abuse, including grooming and the use of intimidation and

  isolation.” Without making specific findings or providing a detailed

  explanation, the court found “that she meets the qualifications

  under [CRE] 702 and also under [CRE] 403, and she is accepted as

  an expert and may render opinions in the areas of expertise.”




  5 “A ‘blind’ or ‘cold’ expert knows little or nothing about the facts of
  a particular case, often has not met the victim, and has not
  performed any forensic or psychological examination of the victim
  (or the defendant).” People v. Cooper, 2019 COA 21, ¶ 2 (cert.
  granted Mar. 2, 2020) (citation omitted).

                                     24
¶ 51   During her direct examination, Moore described her

  professional experience, including the years she had spent

  counseling convicted sex offenders and adults who had been

  sexually assaulted as children.

¶ 52   Moore then testified about grooming.6 She explained that

  grooming is “the offender’s plan to keep the child quiet so that the

  child doesn’t tell what’s going on and to fool all the rest of us about

  what’s really happening.” She testified that “[o]ffenders groom the

  child victim, the parents of the child, they groom all of us as a

  community. Even after they’re convicted, they try to groom

  probation and treatment providers. It’s just their way of life for

  them.” She continued, explaining that grooming “tends to be pretty

  pleasurable . . . things like bribing, buying things for the victim to

  keep them quiet, giving them special privileges, treating them

  specially.” But it can also be “very intimidating. It can be very




  6 Significantly, part of Moore’s testimony about grooming occurred
  before she was offered by the prosecution, and accepted by the trial
  court, as an expert. The court noted this error later, outside the
  jury’s presence, commenting that this testimony was “frankly . . .
  expert opinion before [Moore] was qualified.”

                                     25
  harsh and very mean,” including “punishing the child.” The

  prosecutor labeled these latter activities “negative grooming.”

¶ 53   A trial court has “broad discretion to determine the

  admissibility of expert testimony.” People v. Ornelas-Licano, 2020

  COA 62, ¶ 42 (quoting Golob v. People, 180 P.3d 1006, 1011 (Colo.

  2008)). In exercising that discretion, the court must act as a

  “gatekeep[er]” and assure that specialized testimony is “reliable,

  relevant, and helpful to the jury.” People v. Prieto, 124 P.3d 842,

  849 (Colo. App. 2005). In furtherance of this duty, our supreme

  court has consistently required that trial courts

            admitting evidence pursuant to CRE
            702 . . . determine and make specific findings
            on the record, not only as to the reliability of
            the scientific principles upon which the expert
            testimony is based, . . . but also the usefulness
            of such testimony to the jury, including
            specific findings with regard to the court’s
            obligation pursuant to CRE 403 . . . .

  Ruibal v. People, 2018 CO 93, ¶ 12 (citing People v. Shreck, 22 P.3d

  68, 70, 77-78 (Colo. 2001)). This requirement has been

  “unwavering.” Id. at ¶ 13.

¶ 54   Here, the court’s reference in its ruling to Rules 702 and 403

  indicates its “awareness of the applicable standard[s],” but “the



                                    26
  requirement for specific findings is not satisfied by this inference

  alone.” Id. at ¶ 14. As gatekeeper, the trial court needed to make

  specific findings on the record about the reliability, relevance, and

  usefulness of Moore’s testimony, including the concept of “negative

  grooming,” before exercising its discretion whether to admit it. See

  id. at ¶ 12; id. at ¶ 14 (“In light of the broad range of expertise

  governed by the rule and the necessarily non-specific nature of the

  factors governing the reliability, relevance, and incremental

  probativeness of expert opinion in any given case, the requirement

  for specific findings is imposed as a means of ensuring meaningful

  review of this broadly discretionary decision.”).

¶ 55   Accordingly, should the prosecution seek to admit this expert

  testimony in defendant’s new trial, the trial court shall make

  specific findings on the record regarding the relevance and

  reliability of the evidence before deciding whether to admit it.

                      B.    Prosecutorial Misconduct

¶ 56   Finally, we address the novel issue of the “groomed jury.”

  Throughout closing argument, the prosecutor adopted a grooming

  theme. He began by reminding the jury of Moore’s testimony and

  then went one step further and argued that defendant, his counsel,


                                     27
  and the entire defense that the jury had witnessed throughout the

  trial was merely an attempt to groom the jury. Defense counsel

  objected. The trial court forbade the prosecutor from arguing that

  defense counsel had groomed the jury, but it permitted the

  prosecutor to continue arguing that defendant had groomed the

  jury.

¶ 57      We evaluate a claim of improper closing argument as a whole

  and in light of the entire record. People v. Knight, 167 P.3d 147,

  156 (Colo. App. 2006).

¶ 58      “[A] prosecutor, while free to strike hard blows, is not at liberty

  to strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048

  (Colo. 2005) (quoting Berger v. United States, 295 U.S. 78, 88

  (1935)). Here, the prosecutor’s challenged comments regarding

  defendant grooming the jury were repeated blows that violated

  defendant’s right to due process and a fair trial by an impartial

  jury. See Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

¶ 59      By taking the expert’s grooming testimony and arguing that it

  applied directly to the jury, the prosecutor crossed the line from

  permissible commentary on the evidence to impermissible

  commentary not only about defendant’s character, but also about


                                       28
  the jury. See People v. Serra, 2015 COA 130, ¶ 88 (condemning

  arguments implying the defendant has a “bad character”). This

  argument appealed to the passions and prejudices of the jury,

  encouraging it to view defendant in a negative and manipulative

  light. See Domingo-Gomez, 125 P.3d at 1048-49. In a sense, it is a

  type of “golden rule” argument that put the jury on similar footing

  with S.Y.: both victims of defendant’s control and grooming. These

  arguments are improper because they “encourage the jury to decide

  the case based on personal interest and emotion rather than on a

  rational assessment of the evidence.” People v. Munsey, 232 P.3d

  113, 123 (Colo. App. 2009). Essentially, the prosecutor argued

  that, if the jury believed defendant, it was only because he had

  succeeded in grooming them. Who among us, after all, wants to be

  accused of being controlled and groomed by a criminal defendant

  on trial?

¶ 60   These comments were frequent and improper. On remand, the

  trial court should not permit the “groomed jury” comments.

                            IV.   Conclusion

¶ 61   We reverse defendant’s convictions and remand for a new trial.

       JUDGE TOW and JUDGE PAWAR concur.


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