COLORADO COURT OF APPEALS                                       2017COA63


Court of Appeals No. 14CA1331
City and County of Denver District Court No. 13CR1748
Honorable Martin F. Egelhoff, Judge
Honorable John W. Madden, IV, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leroy Salas,

Defendant-Appellant.


               JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                  AND CASE REMANDED WITH DIRECTIONS

                                  Division I
                        Opinion by JUDGE TAUBMAN
                       Graham and Navarro, JJ., concur

                           Announced May 18, 2017


Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Leroy Salas, appeals his judgment of conviction

 and sentence entered on jury verdicts finding him guilty of sexual

 assault on a child by one in a position of trust and sexual assault

 on a child, pattern of abuse. Salas also appeals the trial court’s

 order finding him to be a sexually violent predator (SVP). We affirm

 in part, vacate in part, and remand for findings.

                          I.     Background

¶2    The victim was nine years old when her mother began dating

 Salas in August 2011. At the time, the victim lived with her mother

 in Loveland. In September 2011, the three moved in with the

 victim’s grandmother, at her apartment in Denver. In November

 2011, Salas and mother moved into a separate apartment together

 in Denver, but the victim continued to live with grandmother. The

 victim occasionally visited her mother’s apartment.

¶3    At trial, the victim testified that, during visits, she would

 sometimes be alone with Salas in the apartment while mother

 worked. She testified that on occasion, Salas told the victim to lie

 down on his bed and touched her “stomach and legs” and her

 “private parts” over her clothing. The prosecutor asked the victim

 to indicate on a diagram where Salas touched her, and she


                                    1
 indicated the buttocks. On another occasion, Salas made the

 victim touch his penis. The victim did not tell anyone about these

 incidents because Salas told her not to, and she was scared.

¶4    In early 2012, mother and Salas broke up, and mother moved

 to California; the victim followed once she finished school in

 Denver. There, the victim told a family friend about the assaults.

 The friend relayed the information to mother and mother called the

 police. The victim spoke about the incidents with a sheriff and a

 counselor in California.

¶5    In November 2012, the victim moved back in with

 grandmother in Denver. The victim discussed the assaults with a

 forensic interviewer at the Denver Children’s Advocacy Center.

¶6    At trial, the theory of defense was that the victim fabricated

 the assaults in order to gain attention, and that Salas could not

 have sexually assaulted her because he was never alone with her

 for a sufficient period.

                             II.   Mistrial

¶7    Salas first contends that the trial court abused its discretion

 and violated his rights to due process, a fair trial, and an impartial

 jury by denying his motion for a mistrial after grandmother testified


                                     2
 that Salas had “some type of court proceedings on an alcohol

 problem,” a nonresponsive answer to a question which, he says,

 impermissibly referred to prior criminality. We disagree.

¶8    Grandmother testified that mother and Salas lived with her for

 a few months before they moved into their own apartment. The

 court asked grandmother a question posed by the jury: “Was Salas

 employed during the two- to three-month period and if so how

 many hours per week?” Grandmother replied that he was

 employed. Defense counsel questioned grandmother further on

 whether Salas was employed full-time, to which grandmother

 responded, “He had — no — how can I say this except to be honest.

 There was some type of court proceedings on an alcohol problem.”

 Defense counsel moved for a mistrial. The trial court denied the

 motion and instructed the jury to disregard grandmother’s

 response.

                       A.   Standard of Review

¶9    A trial court has broad discretion to grant or deny a mistrial,

 and its decision will not be disturbed on appeal absent an abuse of

 discretion and prejudice to the defendant. People v. Santana, 255

 P.3d 1126 (Colo. 2011); People v. Abbott, 690 P.2d 1263, 1269


                                   3
  (Colo. 1984). A court abuses its discretion only when inadmissible

  evidence is likely to have substantially prejudiced the jurors despite

  the use of any alternative remedies. People v. Lahr, 2013 COA 57,

  ¶ 23, 316 P.3d 74, 79. A mistrial is “the most drastic of remedies,”

  and is “only warranted where the prejudice to the accused is too

  substantial to be remedied by other means.” Abbott, 690 P.2d at

  1269.

¶ 10   Relying on Santana and People v. Chastain, 733 P.2d 1206

  (Colo. 1987), Salas asserts that he has presented a constitutional

  claim because grandmother’s statement violated his rights to due

  process and a fair trial by an impartial jury. However, neither of

  these cases involved a motion for a mistrial based on a reference to

  prior criminality. Further, an erroneous reference to a defendant’s

  prior criminality is not an error of constitutional dimension, and we

  therefore review such claims for nonconstitutional harmless error.

  See, e.g., People v. Pernell, 2014 COA 157, ¶¶ 26, 42-52, __ P.3d __,

  __, __; Lahr, ¶ 23, 316 P.3d at 79; see also People v. Yusem, 210

  P.3d 458, 469 n.16 (Colo. 2009) (erroneous admission of prior bad

  act evidence is not error of constitutional dimension). Therefore, we

  review Salas’ claim for nonconstitutional harmless error.


                                    4
                           B.   Applicable Law

¶ 11   Salas relies on Goldsberry to assert that “[i]n a criminal trial to

  a jury, evidence of a defendant’s criminal activity, which is

  unrelated to the offense charged, is inadmissible.” People v.

  Goldsberry, 181 Colo. 406, 409, 509 P.2d 801, 803 (1973).

  However, Goldsberry also notes that “exceptions to this rule are

  limited to well defined and special situations where proof of similar

  offenses will show the defendant’s intent, motive, plan, scheme, or

  design with respect to the crime charged.” Id. The supreme court

  in Goldsberry held that in such situations, the court is required to

  give instructions limiting the purpose of such evidence, id., and that

  when reference is made in the presence of the jury to a defendant’s

  unrelated criminal activity, “a mistrial is normally required,” id.

¶ 12   However, subsequent cases have limited the holding in

  Goldsberry: “[A]n ambiguous reference to evidence of a defendant’s

  criminality does not necessitate a new trial.” Lahr, ¶ 24, 316 P.3d

  at 79 (citations omitted); see also People v. Vigil, 718 P.2d 496,

  505-06 (Colo. 1986) (police officer’s reference to contraband found

  in defendant’s home did not warrant mistrial). In addition, fleeting

  references to a defendant’s alleged criminal history have even less


                                     5
  prejudicial impact. Lahr, ¶ 24, 316 P.3d at 79-80; see also Abbott,

  690 P.2d at 1269 (A mistrial was unwarranted in part because “the

  reference to past criminal acts was a single unelicited remark.”).

  The circumstances of each case must be reviewed to determine

  whether the defendant was prejudiced. Abbott, 690 P.2d at 1269;

  People v. Moore, 226 P.3d 1076, 1087-88 (Colo. App. 2009).

¶ 13   Further, Goldsberry was announced prior to the promulgation

  of the Colorado Rules of Evidence. While the rules state that

  evidence of other crimes, wrongs, or acts is not admissible to prove

  the defendant’s character in order to show that he or she acted in

  conformity therewith, see CRE 404(b); Kaufman v. People, 202 P.3d

  542, 552 (Colo. 2009), such evidence can be admissible for the

  same purposes and under the same conditions enumerated in

  Goldsberry, see Kaufman, 202 P.3d at 552 (citing CRE 404(b));

  People v. Beasley, 43 Colo. App. 488, 492, 608 P.2d 835, 838 (1979)

  (citing Goldsberry and CRE 404(b)).

¶ 14   Generally, the erroneous admission of evidence is remedied by

  instructing the jurors to disregard it. Vigil v. People, 731 P.2d 713,

  716 (Colo. 1987); Lahr, ¶ 25, 316 P.3d at 80. Absent evidence to

  the contrary, we presume jurors follow such an instruction. Lahr,


                                     6
  ¶ 25, 316 P.3d at 80. The supreme court noted in Goldsberry that

  where the prosecution has intentionally elicited the prejudicial

  information, evidence of a defendant’s guilt is “thin,” and if the

  proof of at least one of the essential elements of the crime charged

  is entirely circumstantial, a trial court’s cautionary instruction will

  not suffice. Goldsberry, 181 Colo. at 409, 509 P.2d at 803.

  However, the supreme court has since clarified that “[t]he

  circumstances are . . . rare where we . . . will depart from the

  presumption that a jury follows a court’s curative instructions.”

  Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091 (Colo. 2011); see

  also People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001)

  (acknowledging Goldsberry but concluding that court’s instruction

  was sufficient to cure prejudice); People v. Gillispie, 767 P.2d 778,

  780 (Colo. App. 1988) (“[A]n instruction is inadequate only when

  evidence is so prejudicial that, but for its exposure, the jury might

  not have found the defendant guilty.”).

                               C.   Analysis

¶ 15   Here, grandmother’s comment regarding “court proceedings on

  an alcohol problem” referred ambiguously to possible past

  criminality. It was a single, fleeting, nonresponsive comment. It


                                     7
  did not necessarily reference any criminal behavior on the part of

  Salas, since “court proceedings” on an “alcohol problem” could also

  refer to civil and administrative proceedings involving alcohol

  consumption. See, e.g., § 27-81-112, C.R.S. 2016 (governing

  involuntary civil commitment of alcoholics); § 42-2-126, C.R.S.

  2016 (governing license revocation proceedings based on an

  administrative determination).

¶ 16    The possibility that a reasonable juror inferred Salas’ guilt

  based on grandmother’s reference to an “alcohol problem” is highly

  attenuated. If such a comment had an impact on the jury, it was

  not “so prejudicial that, but for its exposure, the jury might not

  have found against the defendant.” People v. McNeely, 68 P.3d 540,

  542 (Colo. App. 2002) (citation omitted); see also People v. Ned, 923

  P.2d 271, 275 (Colo. App. 1996) (“Speculation of prejudice is

  insufficient to warrant reversal of a trial court’s denial of a motion

  for mistrial.”).

¶ 17    Further, the trial court immediately instructed the jurors to

  disregard grandmother’s comment, and, absent exceptional

  circumstances where the evidence against Salas is thin, we

  presume that the jury followed such an instruction. This is


                                     8
  particularly the case here because, unlike in Goldsberry, the

  remark was not intentionally elicited to prejudice Salas. See

  Goldsberry, 181 Colo. at 409, 509 P.2d at 803. Rather, the counsel

  for the defense elicited this information when she pressed

  grandmother further on whether Salas was employed full time.

¶ 18   Because grandmother’s remark was fleeting, minimally

  prejudicial, and immediately followed by a curative instruction, we

  conclude that the trial court did not abuse its discretion when it

  denied Salas’ motion for a mistrial.

                 III.   Grandmother’s Interview Video

¶ 19   Salas next contends that the district court abused its

  discretion when it denied his request to play a videotaped interview

  of grandmother after concluding that she had not denied anything

  that would be subject to impeachment through a collateral source.

  We disagree.

¶ 20   After the victim told a family friend in California about Salas’

  actions in August 2012, a San Bernardino sheriff contacted

  grandmother to talk about the sexual assault allegations.

  Grandmother told the sheriff that she knew of “one or two —

  possibly two occasions” that Salas had been alone with the victim.


                                    9
  Grandmother told the sheriff that the victim lived with her “99

  percent of the time.”

¶ 21   In October 2013, Detective Nash Gurule of the Denver Police

  Department interviewed grandmother. During the recorded

  interview, grandmother relayed information about the sexual

  assaults that she had learned from the victim, specifically: (1)

  “[mother] told me that . . . Salas would have [the victim] grab him”;

  (2) “according to [mother], [the victim] said she never let him touch

  her uh, without any clothes on”; and (3) mother told grandmother

  that the victim had touched Salas while he did not have clothes on,

  but that the victim had never taken her clothes off.

¶ 22   Detective Gurule also asked grandmother how long Salas and

  mother had lived together in their Denver apartment. Grandmother

  explained that they lived there “maybe November of 2011 into like

  maybe January, February 2012. Right around that time . . . I know

  Christmas for sure of 2011. . . .” The detective then asked her,

  “[D]uring that time, how long do you think you had [the victim] at

  your house?” Grandmother misunderstood and replied, “[H]ow long

  did [the victim] stay there? Maybe, maybe a half a dozen times. . .

  .” The detective asked: “Stayed with you or stayed there?”


                                    10
  Grandmother clarified and reiterated that the victim stayed at

  mother’s and Salas’ apartment “[m]aybe a half a dozen times” but

  did not identify any specific dates, nor did the detective ask for any.

¶ 23   At trial, grandmother testified that Salas, mother, and the

  victim lived with her in Denver from about September to November

  2011 until Salas and mother moved into their own apartment. The

  victim continued to live with grandmother because she was

  attending a school near grandmother’s house, but would

  occasionally visit and spend the night with mother and Salas on the

  weekends. Grandmother testified that one such occasion was

  during Christmas vacation. Grandmother testified that “once or

  twice Salas came himself to take [the victim] over there because

  [mother] was working and he would be watching her. The other

  times [mother] would come or maybe [mother] and Salas would

  come. It is a short period of time just to pinpoint those days.”

¶ 24   During cross-examination, defense counsel asked

  grandmother if she had spoken to the San Bernardino sheriff,

  mother, and Detective Gurule about the allegations, and

  grandmother answered affirmatively. Defense counsel asked if she

  had testified previously, and grandmother again affirmed. Defense


                                    11
  counsel also asked if she had spoken with mother about the

  allegations on “numerous occasions,” and grandmother denied that

  she had spoken in detail with mother. Defense counsel then

  confronted grandmother with the statements she had made to

  Detective Gurule in which she relayed information she had learned

  from mother. Grandmother admitted to making each statement.

  Defense counsel then asked grandmother, “And nowhere in this

  interview do you say anything about [the victim] spending time with

  [mother] and Salas over Christmas vacation?” Grandmother agreed

  and explained that Detective Gurule did not ask her that question.

  Defense counsel later asked grandmother if she did not mention

  Christmas to the detective because of a lack of recollection.

  Grandmother reiterated that she did not mention it because she

  was “never asked the question.”

¶ 25   During redirect examination, the prosecutor asked

  grandmother if she had spoken to mother “in detail” about the

  sexual assaults, and grandmother denied doing so.

¶ 26   During recross-examination, defense counsel again questioned

  grandmother about the “details” she had learned from mother.

  Grandmother reiterated that she had heard things from mother, but


                                    12
  had no knowledge of certain details. Defense counsel then

  confronted grandmother again with her statements to Detective

  Gurule in which she relayed information she had learned from

  mother. Grandmother again agreed that she had made the

  statements. Counsel asked grandmother if those were “details.”

  Grandmother agreed that they were.

¶ 27   The next day, defense counsel sought to admit and publish the

  interview between grandmother and Detective Gurule. The

  prosecutor objected, arguing that the video was not admissible

  under section 16-10-201, C.R.S. 2016, because grandmother had

  not denied at trial that she had made any inconsistent statements

  in the interview. Defense counsel argued that (1) grandmother’s

  testimony was “all over the board”; (2) she had been inconsistent

  regarding whether she had given details to the detective; and (3) she

  had made it sound as though she did not give certain evidence to

  the detective because he had not asked her for it, while “the whole

  flavor of that interview” demonstrated that the detective did not ask

  many questions because grandmother was extremely talkative and

  forthcoming, even volunteering information that the detective had




                                   13
  not asked about. Defense counsel also argued that any irrelevant

  and prejudicial information on the video could easily be cut.

¶ 28   The court denied defense counsel’s request to play the

  videotape, concluding that grandmother had not denied anything

  that would be subject to impeachment through the videotape:

            Okay. Well, I was taking pretty careful — I
            paid pretty close attention to [grandmother’s]
            testimony, and I was trying to take some notes
            with respect to those areas in which she was
            impeached, and she didn’t deny anything. She
            didn’t claim lack of memory of anything.
            When she was confronted with the transcripts
            of things to impeach her, she agreed with what
            was in the transcripts. So, I don’t find that
            there’s anything more, or I don’t think there’s
            anything that she denied which would be
            subject to . . . impeachment through the
            collateral source or the source of the tape,
            which is — so, I just don’t find that, especially
            that the evidence is sufficiently impeaching as
            to the specific testimony that she gave here in
            court. So, I don’t feel this is admissible. So, I
            am going to deny the request, or refuse the
            evidence.

                          A.    Standard of Review

¶ 29   The People assert that Salas has not properly preserved this

  issue for review because defense counsel did not identify whether

  his request to admit the video fell under CRE 613 or section

  16-10-201. We conclude that even though defense counsel did not


                                   14
  cite either the rule or the statute in court, he preserved such claims

  for appeal because his arguments for submitting the video into

  evidence identified the subject matter of both the rule and the

  statute, and the trial prosecutor identified the statute on which

  Salas relies on appeal. We conclude that these circumstances were

  sufficient to preserve his claim. See People v. Melendez, 102 P.3d

  315, 322 (Colo. 2004) (“We do not require that parties use

  ‘talismanic language’ to preserve particular arguments for appeal,

  but the trial court must be presented with an adequate opportunity

  to make findings of fact and conclusions of law on any issue before

  we will review it.” (quoting People v. Syrie, 101 P.3d 219, 223 n.7

  (Colo. 2004))); see also Martinez v. People, 2015 CO 16, ¶ 14, 344

  P.3d 862, 868 (“An adequate objection allows the trial court a

  meaningful chance to prevent or correct the error and creates a

  record for appellate review.” (citing Melendez, 102 P.3d at 322)).

¶ 30   Accordingly, we review the trial court’s decision to exclude the

  evidence for an abuse of discretion. People v. Welsh, 80 P.3d 296,

  304 (Colo. 2003). However, a trial court’s interpretation of a statute

  or rule governing the admissibility of evidence is reviewed de novo.

  People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009). A court abuses


                                    15
  its discretion when its decision is manifestly arbitrary,

  unreasonable, or unfair, or when it misconstrues the law. People v.

  Acosta, 2014 COA 82, ¶ 75, 338 P.3d 472, 485.

¶ 31   A court’s erroneous exclusion of a witness’ prior inconsistent

  statements is reviewed for nonconstitutional harmless error. People

  v. Komar, 2015 COA 171M, ¶ 55, __ P.3d __, __ (citing Hagos v.

  People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119). Reversal is

  warranted only where the error “substantially influenced the verdict

  or affected the fairness of the trial proceedings.” Id. (citation

  omitted).

¶ 32   The People contend that it is unclear which alleged

  inconsistencies Salas relies on in his claim of error, arguing that

  Salas only broadly contends that grandmother “made statements at

  trial that were not consistent with prior statements she made to

  Detective Gurule, including statements regarding how often the

  victim spent time at her mother and Salas’ apartment.” Salas also

  references testimony related to grandmother’s conversation with a

  San Bernardino sheriff earlier in the year. To the extent Salas

  argues inconsistencies that were never raised in the trial court, we

  review them only for plain error. Melendez, 102 P.3d at 322; see


                                     16
  also People v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304 (An

  issue is unpreserved for review when an objection is made “on

  unspecific grounds which would not have alerted the trial court to

  the issue of which the defendant now seeks review.”). Plain error

  must be both “obvious and substantial,” and must have “so

  undermined the fundamental fairness of the trial itself so as to cast

  serious doubt on the reliability of the judgment of conviction.”

  People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (citations omitted).

                             B.    Applicable Law

¶ 33   The use of prior inconsistent statements in criminal trials is

  expressly governed by both statute and rule. People v. Saiz, 32 P.3d

  441, 445 (Colo. 2001); see also Montoya v. People, 740 P.2d 992,

  995-96 (Colo. 1987).

            CRE 613 comports generally with prior case
            law by prohibiting examination of a witness for
            impeachment by prior inconsistent statement
            until his attention has been called to the time,
            place, and circumstances of the prior
            statement and by barring the admission of
            extrinsic evidence to prove any prior statement
            that is conceded by the witness.

  Saiz, 32 P.3d at 445; see also Montoya, 740 P.2d at 995-96. In

  contrast, section 16-10-201 creates “a new rule of substantive



                                    17
evidence” for criminal cases by “eliminating the hearsay impediment

to using prior inconsistent statements for the purpose of

establishing a fact to which witness’ testimony and prior statement

relate, as long as the witness is still available and his prior

statement relates to a matter within his own knowledge.” Saiz, 32

P.3d at 445; see also Montoya, 740 P.2d at 997-98. The statute

“allows a prior inconsistent statement to be used as substantive

evidence of the fact to which the statement relates,” and it “does not

include the foundation requirement that a witness must have

denied or failed to remember the prior statement before it can be

proved by extrinsic evidence.” Montoya, 740 P.2d at 996. The

statute provides:

           (1) Where a witness in a criminal trial has
           made a previous statement inconsistent with
           his [or her] testimony at the trial, the previous
           inconsistent statement may be shown by any
           otherwise competent evidence and is
           admissible not only for the purpose of
           impeaching the testimony of the witness, but
           also for the purpose of establishing a fact to
           which his [or her] testimony and the
           inconsistent statement relate, if:
           (a) The witness, while testifying, was given an
           opportunity to explain or deny the statement
           or the witness is still available to give further
           testimony in the trial; and



                                   18
             (b) The previous inconsistent statement
             purports to relate to a matter within the
             witness’s own knowledge.

  § 16-10-201. While section 16-10-201 also relaxes the foundational

  requirements for impeachment by prior inconsistent statement in

  some respects, CRE 613 does not conflict with the statute and

  continues to apply in civil cases and in criminal cases in which the

  foundational requirements of the statute are not met. Saiz, 32 P.3d

  at 445; see also Montoya, 740 P.2d at 997-98.

¶ 34   In Saiz, the supreme court addressed the admissibility of a

  videotaped interview containing prior inconsistent statements under

  the statute. It held that the trial court did not abuse its discretion

  in excluding a videotape of the defendant’s minor son which

  contained inconsistent statements. This was because, even though

  the video evidence demonstrated inconsistent statements, “the

  defense was in no way limited from introducing extrinsic evidence of

  those statements.” Saiz, 32 P.3d at 447. This was particularly so

  because the son contradicted himself during trial. Further, the

  video was offered solely to impeach the witness; there was no

  contention that the video would be any different from the testimony

  already offered to impeach the witness. “Without offering the


                                    19
  videotape for any purpose other than to impeach [the witness’]

  testimony . . . the defendant’s counsel asserted that this additional

  extrinsic evidence was admissible simply because it was a videotape

  of [the witness’] own words.” Id. The supreme court concluded:

                In light of the other evidence already admitted
                and the offer of proof before it, the trial court’s
                ruling amounted to little more than a
                determination that under the circumstances of
                this case the defendant was not entitled to
                introduce a videotape to show the same
                statements that it had already shown by
                uncontested testimony.

  Id. at 449.

                                     C.    Analysis

¶ 35   Both parties concede that the video is not admissible under

  CRE 613. Salas did not argue specifically that the video was

  admissible under section 16-10-201 at trial, but asserts on appeal

  that the district court misapplied section 16-10-201 in excluding

  the tape because he was not required to confront grandmother with

  her inconsistent testimony in order for it to be admissible.

¶ 36   Here, as in Saiz, the district court did not abuse its discretion

  in excluding the videotaped interview of grandmother after defense




                                          20
  counsel sufficiently confronted grandmother with her inconsistent

  statements and she either explained or conceded them.

¶ 37   The district court denied defense counsel’s request to play the

  tendered videotape after concluding that grandmother had not

  denied anything that would be subject to impeachment. During

  grandmother’s trial testimony, defense counsel presented direct

  quotes of her inconsistent statements from her videotaped

  interview, and she conceded those inconsistencies. The statements

  that she did not concede related to the amount of time that the

  victim had spent with her, which she sought to explain. Defense

  counsel argued that the videotape was admissible because the

  applicable foundational requirements were met, the videotaped

  interview demonstrated that grandmother was “talkative,” and the

  jurors needed the overall “flavor” of the interview to assess

  grandmother’s testimony.

¶ 38   Defense counsel thoroughly impeached grandmother during

  cross-examination and, in offering the videotaped interview, did not

  assert that anything in it would differ from grandmother’s

  cross-examination testimony. See id. at 450. Further, “[t]he jury

  was not shielded in any way from [the witness’] apparent


                                    21
  contradictions but was able to observe, first hand, the nuances in

  questioning that led to his different responses.” Id. Thus, the trial

  court did not abuse its discretion in excluding the videotape

  because Salas’ offered purpose had already been accomplished by

  his cross-examination of grandmother. To the extent there were

  any inconsistencies between the interview and grandmother’s trial

  testimony, grandmother admitted them. Thus, admission of the

  video would have been cumulative. The trial court could have

  properly excluded the video on that basis alone. See CRE 403

  (“Although relevant, evidence may be excluded if its probative value

  is substantially outweighed by the danger of unfair prejudice,

  confusion of the issues, or misleading the jury, or by considerations

  of undue delay, waste of time, or needless presentation of

  cumulative evidence.”); see also Saiz, 32 P.3d at 445-49.

¶ 39   Accordingly, we conclude that the district court did not abuse

  its discretion in refusing to admit the videotape.

                        IV.   SVP Designation

¶ 40   Last, Salas contends that the trial court’s determination that

  he qualified as an SVP failed to satisfy statutory and due process

  requirements because the court never made specific findings of fact


                                    22
  in support of its determination as required by section 18-3-414.5(2),

  C.R.S. 2016. We agree that the court’s analysis did not satisfy the

  statute and related case law.

¶ 41   Prior to Salas’ sentencing, a probation officer completed a

  Colorado Sexually Violent Predator Assessment Screening

  Instrument (SVPASI), as required by section 18-3-414.5. The

  probation officer found that Salas satisfied the criteria for SVP

  designation, in part because he promoted a relationship with the

  victim primarily for the purpose of sexual victimization. The

  SVPASI was provided to the court at sentencing along with a

  presentence investigation report (PSI) summarizing the facts and

  background of the case. At sentencing, the prosecutor asked “that

  the Court find that Salas is a sexually violent predator per the

  assessment.” After imposing a sentence, the trial court stated, “Oh,

  and also based upon the [SVPASI] report, Salas meets the criteria of

  a sexually violent predator.”

               A.    Review of SVP Designation on Appeal

¶ 42   Initially, the People contend that because an SVP designation

  is a civil matter and because Salas did not object to the SVP

  designation in the trial court and preserve the issue for appeal, we


                                    23
  should not review this claim of error. See Estate of Stevenson v.

  Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)

  (“Arguments never presented to, considered or ruled upon by a trial

  court may not be raised for the first time on appeal.”). However, we

  disagree.

¶ 43   The People assert that “though the SVP statute is housed in

  the criminal code, the designation is met with a civil burden of

  proof.” People v. Allen, 2013 CO 44, ¶ 7, 307 P.3d 1102, 1105. Cf.

  People v. Daly, 313 P.3d 571 (Colo. App. 2011) (restitution is a civil

  judgment independent of a defendant’s conviction). As a result,

  they argue, an SVP designation is not part of a criminal proceeding

  and it is not a punishment. Therefore, “a trial court’s decision to

  designate an offender as an SVP is legally and practically distinct

  from its sentencing function.” Allen, ¶ 7, 307 P.3d at 1105; see also

  People v. Stead, 66 P.3d 117, 123 (Colo. App. 2002), overruled by

  Candelaria v. People on other grounds, 2013 CO 47, 303 P.3d 1202.

  However, the Allen court did not suggest that an SVP designation

  imposed in a criminal case pursuant to a criminal statute is not

  part of a criminal proceeding subject to direct appeal in a criminal

  case. It only concluded that appellate courts must defer to a trial


                                    24
  court’s factual SVP findings when they are supported by the record

  and review de novo the trial court’s legal conclusions regarding

  whether an offender should be designated as an SVP. Allen, ¶ 4,

  307 P.3d at 1105.

¶ 44   Before Allen, multiple divisions of this court held that when a

  defendant fails to object to a lack of specific findings on an SVP

  designation, we review for plain error. See, e.g., People v. Mendoza,

  313 P.3d 637, 641 n.4 (Colo. App. 2011); People v. Loyas, 259 P.3d

  505, 511 (Colo. App. 2010); People v. Buerge, 240 P.3d 363, 369

  (Colo. App. 2009). However, since Allen established that an SVP

  designation carries a civil burden of proof, no court has addressed

  the People’s contention that we may not review an SVP designation

  when a defendant has not preserved the issue for appeal.

¶ 45   We conclude that although the SVP designation is not a

  criminal punishment, it is only imposed in conjunction with a

  criminal conviction and thus should not be separated from the

  appeal of criminal trial issues. This is particularly so because an

  SVP designation only accompanies a conviction of a sexual offense.

  See § 18-3-414.5(2) (When an offender has been convicted of a

  sexual offense listed in this section, “the court shall make specific


                                    25
  findings of fact and enter an order concerning whether the

  defendant is a sexually violent predator” based on the SVPASI.).

¶ 46   Considering the logic above and the holdings of various

  divisions of this court prior to the decision in Allen, we reject the

  People’s contention that we should not review Salas’ unpreserved

  challenge to his SVP designation, and therefore review the merits of

  his claim for plain error, following the pre-Allen decisions by

  divisions of this court noted above. See, e.g., Mendoza, 313 P.3d at

  641 n.4.

                         B.     Standard of Review

¶ 47   A trial court’s SVP designation involves a mixed question of

  law and fact. Allen, ¶ 4, 307 P.3d at 1105. We must defer to a trial

  court’s factual findings if they are supported by the record, but

  review any legal conclusions de novo. Id.

                           C.    Applicable Law

¶ 48   A trial court shall designate an offender an SVP when the

  offender: (1) was eighteen years of age or older as of the date of the

  offense; (2) was convicted of an enumerated sexual offense; (3)

  committed the offense against a victim who was a stranger or was a

  person with whom the offender established or promoted a


                                     26
  relationship primarily for the purpose of sexual victimization; and

  (4) is likely to recidivate. § 18-3-414.5(1)(a)(I)-(IV); Allen, ¶ 6, 307

  P.3d at 1105.

¶ 49   When a defendant is convicted of an enumerated offense, the

  probation department completes an SVP assessment.

  § 18-3-414.5(2). “Based on the results of the assessment, the court

  shall make specific findings of fact and enter an order concerning

  whether the defendant is a sexually violent predator.” Id.

¶ 50   The trial court is ultimately responsible for determining

  whether a defendant satisfies the four elements of the SVP statute.

  Uribe-Sanchez v. People, 2013 CO 46, ¶ 8, 307 P.3d 1090, 1091-92.

  “In making this ultimate determination, the trial court relies on

  both the statute itself, and on the appellate courts’ interpretations

  of the language employed by the General Assembly.” Candelaria,

  ¶ 9, 303 P.3d at 1204.

¶ 51   At the time of the trial court’s SVP determination, the supreme

  court had already announced the legal test for trial courts to apply

  when determining if a defendant established or promoted a

  relationship for SVP purposes. See People v. Gallegos, 2013 CO 45,

  307 P.3d 1096. In Gallegos, the court explained that the SVP


                                      27
statute “does not grant the [Sex Offender Management Board

(SOMB)] the authority to define [the] terms” contained in the third

element of the statute. Id. at ¶ 10, 307 P.3d at 1100. The portion

of the SVPASI utilized in this case that provides definitions or

criteria for the qualifying relationship types (stranger, established,

or promoted) is not authorized by statute, and it is not the proper

test for determining whether a defendant’s relationship with the

victim satisfies the SVP statute. See id.; People v. Tunis, 2013 COA

161, ¶ 39, 318 P.3d 524, 531-32 (Because the statute does not

authorize the SOMB to define the phrases “established a

relationship” or “promoted a relationship,” the reviewing court

“must disregard the two-step inquiry and underlying criteria

identified in the screening instrument.”). In fact, because the

SOMB does not have the authority to define the terms in the

relationship criterion of the SVP statute, district courts should

disregard the screening instrument’s description of factors for

determining whether an offender established or promoted a

relationship with the victim primarily for purposes of sexual

victimization. See Gallegos, ¶ 10, 307 P.3d at 1100; see also Tunis,

¶ 39, 318 P.3d at 531 (after Gallegos, “we must disregard” the


                                  28
  screening instrument’s findings regarding the relationship

  criterion).

¶ 52   The Gallegos court further held that a defendant’s conduct

  during the commission of the sexual assault or offense cannot be

  used to satisfy the relationship element of the SVP statute.

  Gallegos, ¶¶ 10-21, 307 P.3d at 1101-02; see also Uribe-Sanchez,

  ¶¶ 4-11, 307 P.3d at 1091-92 (defendant’s conduct during offense

  could not be considered in determining whether he promoted

  relationship with victim for purpose of sexualization); Tunis, ¶ 41,

  318 P.3d at 532 (recognizing that reliance on the facts of the

  assault “is now precluded” by Gallegos). To satisfy the “promoted a

  relationship” criterion under the SVP statute, the offender,

  excluding his or her behavior during the commission of the

  offense(s), must have “otherwise encouraged a person with whom he

  had a limited relationship to enter into a broader relationship

  primarily for the purpose of sexual victimization.” Gallegos,

  ¶¶ 14-15, 307 P.3d at 1100-01.




                                    29
                              D.   Analysis

¶ 53   Here, the district court erred in not using the legal definitions

  established in Gallegos. Thus, a remand is necessary for the trial

  court to apply those definitions after making findings of fact.

¶ 54   The SVPASI concluded Salas did not meet the “stranger”

  criterion or the “established a relationship” criterion but met the

  “promoted a relationship” criterion. While the district court

  designated Salas as an SVP “based on the assessment,” it made no

  factual findings on whether Salas “encouraged” the victim “to enter

  into a broader relationship primarily for the purpose of sexual

  victimization,” as required by statute. See, e.g., id. at ¶¶ 14-17, 307

  P.3d at 1100-01; Tunis, ¶¶ 37-40, 318 P.3d at 531-32.

¶ 55   The People assert that because the PSI and SVPASI included

  other accounts of sexual assault between Salas and the victim and

  because the court explicitly stated that it was relying on the

  assessment in making its determination, the court did not err in

  designating Salas as an SVP. However, “we examine the court’s

  findings and the testimony at the sentencing hearing using the

  definition in Gallegos . . . .” Tunis, ¶ 39, 318 P.3d at 532. Because

  the court relied on the screening instrument’s description of factors


                                    30
  when determining whether Salas met the relationship criterion of

  the SVP statute and made no findings on any of the criteria in the

  statute, we are unable to determine whether the court erred in

  designating Salas an SVP.

¶ 56   Having determined that the court should not have relied on

  the screening instrument for its finding that Salas met the

  relationship criterion of the SVP statute, we next consider whether

  that error requires reversal, as Salas asserts.

¶ 57   We conclude that the error committed in this case was plain.

  It was obvious because the court did not follow the holding in

  Gallegos in making its own factual findings relevant to whether

  Salas was an SVP. While evidence in the record might support the

  conclusion that Salas either established or promoted a relationship

  with the victim primarily for purposes of sexual victimization under

  the Gallegos standards, the court did not make specific factual

  findings on the matter. Other evidence might lead to the opposite

  conclusion. We perceive that such error was substantial and casts

  serious doubt on the reliability of the SVP designation. Therefore,

  we vacate the court’s SVP designation and remand to the trial court




                                    31
  so that it can make specific findings of fact regarding Salas’ SVP

  designation. See Gallegos, ¶ 2, 307 P.3d 1098.

                           V.   Conclusion

¶ 58   Accordingly, the judgment and sentence are affirmed. The

  SVP designation is vacated, and the case is remanded to the trial

  court to make specific findings of fact supporting its determination

  whether Salas is an SVP, including regarding the relationship

  criterion of the SVP statute, in accordance with the holding in

  Gallegos.

       JUDGE GRAHAM and JUDGE NAVARRO concur.




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