         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
                                                            January 11, 2018

                                 2018COA1

No. 15CA0171, People v. Sparks — Crimes — Sexual Assault on
a Child

     A division of the court of appeals concludes: (1) that the

phrase “subjects another [] to any sexual contact” in the sexual

assault on a child statute does not require the People to prove that

the defendant caused the child-victim to become “subservient or

subordinate” or to prove that the child-victim initiated the sexual

contact at the defendant’s directive; (2) sufficient evidence existed to

convict based on un-objected to testimony that established the

victim’s age, and it was not plain error to allow that testimony, and;

(3) the court’s jury instruction about viewing the defendant’s video

confession during deliberation was not an abuse of discretion, so

any error in giving that correct instruction outside the presence of

counsel, therefore, was harmless.
COLORADO COURT OF APPEALS


Court of Appeals No. 15CA0171
El Paso County District Court No. 13CR3655
Honorable Gregory R. Werner, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Allen Michael Sparks,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division II
                        Opinion by JUDGE HAWTHORNE
                         Dailey and Welling, JJ., concur

                         Announced January 11, 2018


Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    In appealing the judgment of conviction entered on a jury

 verdict finding him guilty of sexual assault on a child, defendant,

 Allen Michael Sparks, raises an issue of first impression in

 Colorado: When a child victim is alleged to have initiated the sexual

 contact with an adult defendant, does the phrase “subjects another

 . . . to any sexual contact” in section 18-3-405(1), C.R.S. 2017, the

 sexual assault on a child statute, require the People to prove that

 the defendant caused the victim to become “subservient or

 subordinate” or to prove that the child victim initiated the sexual

 contact at the defendant’s order, request, or directive? We answer

 that question “no.” For that reason and because we reject the other

 issues raised on appeal, we affirm the judgment of conviction.

                  I.    Facts and Procedural History

¶2    Sparks attended a party at his wife’s cousin’s house. Months

 later, the cousin’s daughter (A.M.) reported that while she was at

 the party and Skyping on her computer, Sparks touched her breast

 over her clothing. She also reported that as she was Skyping, her

 friend S.F. (the victim) and Sparks were behind her, and that

 through her computer’s camera she saw the victim grabbing

 Sparks’s groin area and making other movements. She also

                                   1
 reported hearing heavy breathing and gasping. At the time, A.M.

 was fourteen and the victim was thirteen. The police later

 interviewed Sparks, and he admitted to what A.M. reported, as well

 as to touching the victim’s groin, breast, and bottom area. Sparks

 was charged with two counts of sexual assault on a child and two

 counts of contributing to the delinquency of a minor, one count of

 each for the victim and A.M. He was convicted of one count of

 sexual assault on a child as to the victim.

     II.     The Issue of First Impression is Raised in the Context of
                             Prosecutorial Misconduct

¶3    Sparks contends that the prosecutor engaged in misconduct

 by misstating the law and evidence during closing argument. We

 disagree.

                         A.    Standard of Review

¶4    We review a claim of prosecutorial misconduct by engaging in

 a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

 2010). First, we review whether the prosecutor’s conduct was

 improper considering the totality of the circumstances. Second, we

 determine whether the conduct warrants reversal under the

 applicable standard of review. Id. Sparks did not object, so we


                                      2
 review for plain error. People v. McMinn, 2013 COA 94, ¶ 58.

 Prosecutorial misconduct constitutes plain error where it (1) is

 flagrant or glaringly or tremendously improper and (2) so

 undermines the trial’s fundamental fairness as to cast serious

 doubt on the judgment of conviction’s reliability. Prosecutorial

 misconduct in closing argument rarely constitutes plain error. Id.

                             B.    Analysis

             1.   The Prosecutor Did Not Misstate the Law

¶5    Sparks contends that the prosecutor misstated the law by

 telling the jury in closing argument that it did not matter that the

 victim initiated the sexual contact, because, he argues, if the victim

 subjected him to sexual contact, the acts did not fall under the

 sexual assault statute. Specifically, Sparks argues that the words

 “subjects another . . . to” in the statute required the prosecution to

 prove that he caused the victim to become “subservient or

 subordinate” or that the child victim initiated the sexual contact at

 his “order, request, or directive.” We disagree.

¶6    Because Sparks was charged with sexual assault on a child,

 the prosecution was required to prove that he

      1. knowingly,

                                    3
      2. subjected another person who was not his spouse to any

         sexual contact, and

      3. that person was less than fifteen years of age, and

      4. the defendant was at least four years older than that person

         at the time of the commission of the act.

 See § 18-3-405(1); see also COLJI-Crim. 3-4:31 (2016).

¶7    Sexual contact “means the knowing touching of the victim’s

 intimate parts by the actor, or of the actor’s intimate parts by the

 victim,” including over the clothing, “for the purposes of sexual

 arousal, gratification, or abuse.” § 18-3-401(4), C.R.S. 2017

 (emphasis added). It is not a defense that a defendant does not

 know the age of a child victim. § 18-1-503.5(3), C.R.S. 2017.

¶8    We read these statutes together to give effect to the entire

 statutory scheme and give consistent and sensible effect to all its

 parts. See People v. Steen, 2014 CO 9, ¶ 9. The sexual assault

 statute’s plain language requires the prosecution to prove that a

 defendant knowingly subjected another to any sexual contact.

 Sexual contact includes the touching of the defendant’s intimate

 parts by the victim. § 18-3-401(4).



                                    4
¶9     Sparks asserts that the words “subjects another” are

  understood as causing another to become subservient or

  subordinate. But we conclude that in the context of the statutory

  scheme prohibiting sexual assault on a child, the General Assembly

  has given “subjects another” a broader meaning. That meaning

  encompasses an adult defendant allowing a child to touch the

  defendant’s intimate parts. And by doing so, the defendant

  subjects the child to sexual contact. We reach this conclusion for

  four reasons.

¶ 10   First, accepting Sparks’s argument would result in making

  some form of force or threat by a defendant an element of the

  sexual assault on a child offense. But the use of force or a threat

  cannot be considered an element of sexual assault on a child

  because the General Assembly clearly treats the use of force or

  threats by the defendant as a sentence enhancer, not an element, of

  the crime. See § 18-3-405(2)(a)-(c).

¶ 11   Second, “subjects another” cannot be reasonably read to

  exclusively require that a defendant initiate or cause the contact,

  because sexual contact is statutorily defined to include the knowing

  touching of the defendant’s intimate parts by the victim. § 18-3-

                                    5
  401(4). And as to the victim touching the defendant, the statute

  does not contain any mention of initiation, coercion, or persuasion

  by the defendant. So construing the statute to require that the

  prosecution show some sort of coercive or persuasive act by the

  defendant to make the victim subservient or subordinate is contrary

  to the statute’s plain language and would require us to add words

  to the statute. This we cannot do. People v. Diaz, 2015 CO 28,

  ¶ 15.

¶ 12      And we note that in other contexts, courts have held that “a

  person ‘subjects’ another . . . if he or she affirmatively acts,

  participates in another’s affirmative act, or omits to perform an act

  which he or she is legally required to do and causes the

  complained-of deprivation.” Santibanez v. Holland, No. CV 10-

  09086-GAF (MAN), 2012 WL 933349, at *6 (C.D. Cal. Jan. 24, 2012)

  (emphasis added) (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th

  Cir. 1978)) (construing 42 U.S.C. § 1983 (2012)).

¶ 13      Third, our General Assembly has made clear that in any

  unlawful sexual contact or activity between a child and an adult,

  the adult is the culpable actor. For example, in the context of

  sexual exploitation of a child, a child under eighteen years of age is

                                      6
  incapable of giving informed consent to the use of his or her body

  for a sexual purpose. See § 18-6-403, C.R.S. 2017. Thus, the law

  will not recognize the child as the initiator of unlawful sexual

  contact or activity with an adult. See United States v. De La Cruz-

  Garcia, 590 F.3d 1157, 1160 (10th Cir. 2010) (construing sections

  18-3-401(4) and 18-3-405(1) and recognizing that legally

  nonconsensual sexual activity between an adult and a minor victim

  “inherently involves taking unfair or undue advantage of the

  victim”); Davis v. United States, 873 A.2d 1101, 1107 (D.C. 2005)

  (“As his eleven-year-old daughter was legally incapable of

  consenting to [defendant’s] sexual advance, coercion was implicit

  and need not have been otherwise shown.”). So construing the

  phrase “subjects another” as requiring the prosecution to prove

  conduct by a defendant that coerced or persuaded a child victim

  into touching the defendant’s intimate parts would undermine the

  sexual assault on a child statutory scheme.

¶ 14   Finally, Sparks’s interpretation would lead to an absurd result

  where a defendant could, without violating the sexual assault on a

  child statute, knowingly allow, by passive acceptance, a child victim

  to touch the defendant’s intimate parts because the defendant did

                                     7
  not coerce or persuade the victim, even if the defendant allowed the

  touching to continue. We must avoid interpretations that would

  lead to an absurd result. Doubleday v. People, 2016 CO 3, ¶ 20.

¶ 15   Our interpretation is consistent with other jurisdictions’ courts

  that have considered this issue.

¶ 16   In State v. Severy, the Maine Supreme Court interpreted the

  phrase “subjects another” in an unlawful sexual contact statute to

  include a defendant’s conduct of intentionally failing to stop a child

  from initiating sexual contact. 8 A.3d 715, 716, 718 (Me. 2010)

  (quoting Me. Rev. Stat. Ann. tit. 17-A, § 255-A(1) (2016)) (“[A]n adult

  does ‘subject’ a child to sexual contact by failing to stop the child

  from touching the adult’s genitals on multiple occasions and

  instead allowing the child to continue this contact.”). The statute at

  issue in that case reads, in part: “A person is guilty of unlawful

  sexual contact if the actor intentionally subjects another person to

  any sexual contact and . . . [t]he other person, not the actor’s

  spouse, is in fact less than 12 years of age and the actor is at least

  3 years older.” Id. at 718 (quoting Me. Rev. Stat. Ann. tit. 17-A,

  § 255-A(1)(E-1)).



                                     8
¶ 17    The Severy court noted that “[t]he verb ‘subject’ is not defined

  by statute,” and it concluded that the trial court’s instruction to the

  jury that “‘subject’ could mean, among other things, ‘to cause to

  experience,’” was consistent with a common understanding of the

  term. Id. (citing Webster’s Third New International Dictionary of the

  English Language Unabridged 2275 (2002)). The court held as

  follows:

             Taking into account the language of all
             relevant statutes, and giving the statutory
             terms their common meaning, [defendant]
             could be found guilty if he intentionally caused
             the child to have contact with his genitals, for
             purposes of gratifying his sexual desire, by
             failing to act to stop the child. In other words,
             the jury could find him guilty if it found that,
             to arouse or gratify his sexual desire,
             [defendant] intentionally allowed the child to
             continue to touch his penis, instead of
             stopping her.

  Id.

¶ 18    And in State v. Traylor, the Wisconsin Court of Appeals held

  that the trial court did not err in submitting to the jury a modified

  instruction that defined sexual contact with a child to include the

  defendant allowing the victim to touch his intimate parts. 489

  N.W.2d 626, 630 (Wis. Ct. App. 1992). The defendant argued that


                                     9
  the statute required “an affirmative act and [not] mere passivity” to

  constitute sexual contact with a child. Id. (citing Wis J I—Criminal

  2103). The court rejected this argument and concluded that the

  defendant did not have to initiate sexual contact with the child, and

  “[i]f the defendant allows the contact, that is sufficient to constitute

  intentional touching because it indicates that the defendant had the

  requisite purpose of causing sexual arousal or gratification.” Id.

¶ 19   We conclude that the prosecutor’s closing arguments did not

  misstate the law and did not constitute prosecutorial misconduct.

           2.    The Prosecutor Did Not Misstate the Evidence

¶ 20   Next, Sparks argues that the prosecutor misstated the

  evidence by saying A.M. saw improper sexual contact between the

  victim and Sparks through a computer camera while on Skype, and

  that Sparks knew exactly how old the victim was.

¶ 21   Prosecutors may comment on the evidence admitted at trial

  and the reasonable inferences that can be drawn from it. People v.

  Samson, 2012 COA 167, ¶ 31. Prosecutors may not, however,

  misstate the evidence. Id. at ¶ 32. Nor may they refer to facts not

  in evidence. People v. Castillo, 2014 COA 140M, ¶ 59 (cert. granted

  Nov. 23, 2015).

                                     10
¶ 22   A.M. testified that she saw the victim touching Sparks’s groin

  area. While A.M. did not testify that she saw Sparks touch the

  victim, this was not necessary to show improper sexual contact.

  So, the prosecutor’s statement did not misstate this evidence.

¶ 23        The prosecutor’s closing comments that Sparks knew

  exactly the age of A.M.’s friends was also not improper. As we

  discuss below, the court did not err by admitting this evidence. In

  his interview with the police, Sparks said that he thought the victim

  was sixteen, but “heard” she was fourteen. And Sparks is related to

  A.M. Given this evidence, it was not improper for the prosecutor to

  infer that Sparks knew that A.M.’s friends would be her age as well.

                       III.   Sufficiency of the Evidence

¶ 24   Sparks contends that because the only evidence as to the

  victim’s age was inadmissible, the prosecution failed to produce

  sufficient evidence to prove beyond a reasonable doubt that he

  committed sexual assault on a child.

¶ 25   We review the record to determine whether the evidence before

  the jury was sufficient in both quantity and quality to sustain the

  conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005).

  The prosecution has the burden of establishing a prima facie case

                                    11
  of guilt, which requires it to introduce sufficient evidence to

  establish guilt. Id. This requires that the evidence be viewed in the

  light most favorable to the prosecution and that it be substantial

  and sufficient to support the defendant’s guilt beyond a reasonable

  doubt. Id.

¶ 26   A.M. and the detective both testified that the victim was under

  the age of fourteen at the time of the alleged crime. That evidence

  was admitted without objection and was sufficient for the jury to

  find beyond a reasonable doubt that the victim was less than fifteen

  years of age at the time of the crime and to convict Sparks of sexual

  assault on a child. Even if that evidence was arguably excludable,

  it was “admitted without objection and retained without a motion to

  strike.” And as we conclude in Part IV below, it was not plain error

  to admit the evidence, so “the jury [was] generally free to consider

  it.” People v. McGrath, 793 P.2d 664, 667 (Colo. App. 1989).

  Accordingly, we conclude that the evidence was sufficient.

           IV. Testimony and Statements About Victim’s Age

¶ 27   Sparks next contends that the court erred in admitting a

  detective’s and A.M.’s testimony and his own interview statement as

  to the victim’s age because they were hearsay and violated his

                                    12
  constitutional rights under both the Federal and Colorado

  Confrontation Clauses. We discern no reversible error.

                     A.     Testimony and Statement

¶ 28   The prosecutor asked A.M., who had previously testified that

  she was fourteen years old at the time of the offense, if the victim

  was the same age as her, to which she replied, “No. She is a year

  younger than me.” The prosecutor also asked a detective if he had

  “determine[d] whether or not [the victim was] under 15 [years old] at

  the time of the offense?” The detective responded, “I did.” During

  Sparks’s interview, he admitted that he had “heard” that the victim

  was fourteen years old, but he had thought she was “at least”

  sixteen years old. The interview video was admitted into evidence.

  All of the above evidence was admitted without objection.

                              B.   Analysis

                       1.    Confrontation Clauses

¶ 29   “Normally, we review a trial court’s evidentiary rulings for an

  abuse of discretion; however, whether the admission of evidence

  violates the Confrontation Clause is reviewed de novo.” People v.

  Barry, 2015 COA 4, ¶ 65. Where, as here, the Confrontation Clause

  issue is not preserved, we review for plain error. Id. But we require

                                    13
  a sufficient record to review an alleged unpreserved constitutional

  error. See People v. Allman, 2012 COA 212, ¶ 15 (“[T]he absence of

  a sufficient record is a common basis for refusing to review

  unpreserved constitutional error . . . .”).

¶ 30   Our supreme court has “long interpreted Colorado’s

  Confrontation Clause as commensurate with the federal

  Confrontation Clause.” Nicholls v. People, 2017 CO 71, ¶ 31 (citing

  Compan v. People, 121 P.3d 876, 885 (Colo. 2005), overruled by

  Nicholls, 2017 CO 71); Compan, 121 P.3d at 885 (rejecting the

  petitioner’s argument that the state confrontation clause protects

  broader rights than the Federal Confrontation Clause).

¶ 31   Considering this consistency between state and federal law, we

  conclude that Sparks’s own prior statements in the interview video

  do not implicate either the Federal or Colorado Confrontation

  Clause. See, e.g., United States v. Brown, 441 F.3d 1330, 1358-59

  (11th Cir. 2006) (“[A] party cannot seriously claim that his or her

  own statement should be excluded because it was not made under

  oath or subject to cross-examination.” (quoting 4 Jack B. Weinstein

  & Margaret A. Berger, Weinstein’s Federal Evidence § 802.05[3][d]

  (2d ed. 2005))); United States v. Zizzo, 120 F.3d 1338, 1354 (7th Cir.

                                     14
  1997) (“We likewise find no merit in [defendant’s] suggestion that

  admission of the challenged evidence violated the Confrontation

  Clause. [Defendant’s] own statements, admitted under [Fed. R.

  Evid.] 801(d)(2)(A), obviously pose no problem.”); United States v.

  Nazemian, 948 F.2d 522, 525-26 (9th Cir. 1991).

¶ 32   As to A.M.’s testimony about the victim’s age, Sparks concedes

  it was non-testimonial. More accurately, because A.M. was

  testifying at trial and available for cross-examination, her

  testimonial statements did not violate either the Federal or Colorado

  Confrontation Clause. People v. Argomaniz-Ramirez, 102 P.3d

  1015, 1017-18 (Colo. 2004).

¶ 33   Sparks argues that the basis for the detective’s knowledge of

  the victim’s age “surely resulted from law enforcement asking” the

  victim and A.M. their ages. So, he asserts that the underlying basis

  for the detective’s testimony was testimonial in nature and therefore

  violated the Federal and Colorado Confrontation Clauses. We

  construe this argument as asserting that because the victim

  provided her age in response to investigative questions, those

  statements were testimonial, see Davis v. Washington, 547 U.S.

  813, 829 (2006), and because the victim was not available for cross-

                                    15
  examination, the detective’s testimony violated Sparks’s

  confrontation rights.

¶ 34   As the parties’ briefings demonstrate, there is no record

  evidence from which the underlying basis for the detective’s

  testimony can be determined. And the lack of objection by Sparks

  deprived the prosecutor of any opportunity to correct the alleged

  error or offer a non-hearsay basis for the testimony. Because there

  is not a sufficient record to allow us to review the alleged

  constitutional error in admitting such evidence, we decline to do so.

  People v. Greer, 262 P.3d 920, 930 (Colo. App. 2011) (Declining to

  review an alleged constitutional error first raised on appeal where

  “the record may not be complete and the trial court was not

  afforded an opportunity to rule.”); see United States v. Zubia-Torres,

  550 F.3d 1202, 1209-10 (10th Cir. 2008) (a lack of factual record

  made it impossible to determine if the defendant’s substantive

  rights were affected); Allman, ¶¶ 14-16.

                          2.   Evidentiary Rulings

¶ 35   Sparks contends that the court abused its discretion in

  admitting the detective’s and A.M.’s testimony and his own



                                    16
  interview statement as to the victim’s age because the evidence was

  inadmissible hearsay without an exception.

¶ 36   We review the trial court’s ruling on the admissibility of

  evidence for an abuse of discretion. And, where, as here, the issues

  were not preserved, we review for plain error. People v. Trujillo,

  2015 COA 22, ¶ 8. Plain error is error that is so obvious that a trial

  court should be able to avoid it without benefit of objection, and the

  error must so undermine the trial’s fundamental fairness as to cast

  serious doubt on the conviction’s reliability. People v. Davis, 2012

  COA 56, ¶ 39.

                         a.   Sparks’s Statement

¶ 37   Sparks argues that his interview statement was inadmissible

  hearsay because if he “heard” that the victim was fourteen years

  old, he must have been told that by someone else. See CRE 805;

  People v. Phillips, 2012 COA 176, ¶ 101 (noting that where a

  statement contains multiple layers of potential hearsay, a court

  must analyze each layer separately to determine whether a hearsay

  exclusion or exception applies).

¶ 38   Because CRE 805 is virtually identical to Fed. R. Evid. 805, we

  consider federal cases and authorities concerning the federal rule

                                     17
  highly persuasive in interpreting and applying our own. See, e.g.,

  Faris v. Rothenberg, 648 P.2d 1089, 1091 n.1 (Colo. 1982) (“Fed. R.

  Civ. P. 63 is identical to C.R.C.P. 63. Thus, federal cases and

  authorities interpreting the federal rule are highly persuasive.”);

  United Bank of Denver Nat’l Ass’n v. Shavlik, 189 Colo. 280, 282,

  541 P.2d 317, 318 (1975) (deeming the authority and commentators

  on Fed. R. Civ. P. 14 to be persuasive because C.R.C.P. 14 is

  virtually identical).

¶ 39   Consistent with the federal rule, CRE 805 does not apply to

  Sparks’s interview admission because as a party opponent his

  statement does not require firsthand knowledge to be admissible.

  See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 96-97 (3d

  Cir. 1999) (“Admissions by a party-opponent need not be based on

  personal knowledge to be admitted under [Fed. R. Evid.] 801(d)(2).

  Therefore, we need not be concerned here that the basis for [the

  defendant’s] statement is likely hearsay . . . which would ordinarily

  require an additional exception to make her statements admissible.

  See Fed. R. Evid. 805.” (citing United States v. Ammar, 714 F.2d

  238, 254 (3d Cir. 1983))); Anmar, 714 F.2d at 254 (“[I]t is clear from

  the Advisory Committee Notes that the drafters intended that the

                                    18
  personal knowledge foundation requirement of [Fed. R. Evid.] 602

  should . . . not [apply] to admissions (including coconspirator

  statements) admissible under [Fed. R. Evid.] 801(d)(2).”); see also

  Grace United Methodist Church v. City Of Cheyenne, 451 F.3d 643,

  668 (10th Cir. 2006) (“[A]ny contention that [a party opponent’s]

  letter was inadmissible under [Fed. R. Evid.] 801(d)(2) because his

  opinions in the letter were not rationally based on his perceptions

  lacks merit.”); 30B Charles Alan Wright et al., Federal Practice and

  Procedure § 7043, Westlaw (database updated Sept. 2017) (“If an

  out-of-court speaker is not required to possess firsthand knowledge

  of a statement, the statement cannot be objected to simply because

  it relates information transmitted to the speaker by someone else.”).

  We conclude that the trial court did not commit plain error.

                         b.    A.M.’s Testimony

¶ 40   Sparks also argues that A.M.’s testimony was inadmissible

  hearsay because it was “likely based on some prior statement” by

  the victim or someone close to the victim. But, on the other hand,

  A.M. may have just as likely based her testimony on her personal

  knowledge as a friend in the same class at school as the victim, or

  on the victim’s reputed age at school. If that was the case, A.M.’s

                                    19
  testimony would not have been hearsay or would have fallen within

  an exception. See CRE 803(19) (providing a hearsay exception

  covering “[r]eputation among . . . [her] associates, or in the

  community, concerning a person’s birth . . .”); cf. People v. Aryee,

  2014 COA 94, ¶ 32 (there was sufficient evidence as to victim’s age

  where part of the evidence included testimony from family friend).

¶ 41   Therefore, under the circumstances, we cannot conclude that

  the trial court’s ruling admitting A.M.’s testimony was erroneous,

  much less obviously so. See People v. Petschow, 119 P.3d 495, 505

  (Colo. App. 2004) (“Plain error assumes that the court should have

  intervened sua sponte because the error was so obvious.”).

  Accordingly, we conclude that the trial court did not commit plain

  error.

                        c.   Detective’s Testimony

¶ 42   Similarly, we cannot determine the basis for the detective’s

  testimony, but the hearsay exceptions discussed above would likely

  not be available here. For example, any statements to the detective

  about the victim’s age would more likely be testimonial. Phillips,

  ¶ 121 (holding that statements to a police officer were testimonial

  where primary purpose of investigation was to prove past events for

                                    20
  criminal prosecution). And any non-testimonial records or

  documents about her age would be subject to the best evidence

  rule. See CRE 1002; Banks v. People, 696 P.2d 293, 297 (Colo.

  1985) (content of writing being directly at issue invokes best

  evidence rule). Again, the record offers no help.

¶ 43   But we cannot conclude that the trial court’s ruling admitting

  the detective’s testimony was obviously erroneous. See People v.

  Ujaama, 2012 COA 36, ¶ 42 (“To qualify as plain error, the error

  must be one that ‘is so clear-cut, so obvious,’ a trial judge should

  be able to avoid it without benefit of objection.” (quoting People v.

  Taylor, 159 P.3d 730, 738 (Colo. App. 2006))).

¶ 44   Even assuming that admitting the detective’s testimony was

  obvious error, the error would be harmless in light of A.M.’s

  testimony and Sparks’s interview statement. People v. James, 117

  P.3d 91, 95 (Colo. App. 2004) (“[A]ny error was harmless in light of

  similar evidence, presented through other witnesses . . . .”). Such

  an error would not “so undermine the fundamental fairness of the

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

  conviction.” Id. So, we conclude that the trial court did not commit

  plain error.

                                    21
                   V.    Interview Video and Instruction

¶ 45   Sparks next asserts that the court abused its discretion by

  instructing the jury that it could assign his interview video any

  weight it wanted when the court provided the video to the jury

  during deliberations. Sparks argues that the court should instead

  have instructed the jury not to give the exhibit undue weight. We

  disagree.

                         A.        Standard of Review

¶ 46   We review the court’s instruction to the jury for an abuse of

  discretion. People v. Jefferson, 2017 CO 35, ¶ 25. The trial court

  has discretion over the use of exhibits during jury deliberations,

  and we may not substitute our own judgment for the court’s

  because we would have reached a different conclusion. Rael v.

  People, 2017 CO 67, ¶ 15. We will not disturb the court’s refusal to

  exclude or limit the use of an exhibit unless its decision was

  manifestly arbitrary, unreasonable, or unfair. Id.

                              B.     Applicable Law

¶ 47   A trial court has an “obligation, at least where prompted to do

  so by a party, to exercise its discretion to guard . . . against the risk

  that testimonial exhibits will be given undue weight or emphasis.”

                                        22
  Carter v. People, 2017 CO 59M, ¶ 17 (citing Frasco v. People, 165

  P.3d 701, 704 (Colo. 2007)). And “the trial court must ultimately

  retain discretionary control over all jury exhibits allowed to go to

  the jury.” Frasco, 165 P.3d at 705.

¶ 48   Under DeBella v. People, trial courts are required to assess any

  possible undue prejudice before allowing juries access to videos of

  testimonial out-of-court statements of child victims during

  deliberation. 233 P.3d 664, 668 (Colo. 2010).

¶ 49   But the use of a defendant’s out-of-court statement is

  analyzed under a different framework than that prescribed by

  DeBella. See Rael, ¶ 35 (“Applying the foregoing principles here, we

  conclude that the concerns that motivated our decision in

  DeBella . . . do not apply to a defendant’s own out-of-court

  statements.”).

¶ 50   A defendant’s out-of-court statement “offered against [him]

  ha[s] . . . never been considered primarily testimonial in nature”; its

  value is “primarily as demonstrative evidence of conduct on his part

  that is contradictory of a position he takes at trial.” Carter, ¶¶ 18,

  21. Use of this evidence “does not implicate the same danger of

  undue emphasis inherent in permitting the jury access to . . .

                                    23
  testimonial evidence” because it has additional probative value “for

  reasons more related to the adversary process than any narrative or

  testimonial value.” Id. at ¶ 21.

¶ 51   “[H]owever, trial courts nonetheless retain discretionary

  control over jury access to such exhibits.” Rael, ¶ 35 (first citing

  Carter, ¶ 22; then citing Frasco, 165 P.3d at 704). While a court

  may find grounds to restrict the jury’s access to a defendant’s

  interview under certain circumstances, “they would not typically be

  the same reasons that might lead it to caution the jury concerning

  the use of, or limit its access to, testimonial exhibits.” Carter, ¶ 22.

                               C.    Analysis

¶ 52   The trial court instructed the jury on how to view Sparks’s

  interview video during deliberations:

             You have requested certain video or audio
             evidence. You may listen to the video/audio
             recording no more than three times. Each
             time you listen to it, you must listen to it all
             the way through. You may not rewind or fast
             forward the recording. You should consider all
             of the evidence in the case and determine what
             weight, if any, should be given to any
             particular piece of evidence.

¶ 53   Sparks argues that this “effectively instructed the jury [that] it

  could give the [video] all of the weight it wanted,” which is contrary

                                     24
  to DeBella’s precaution against undue weight. We reject this

  argument for three reasons.

¶ 54   First, the court did not instruct the jury to give Sparks’s

  statements all of the weight it wanted. Second, our supreme court

  has made clear as to a defendant’s out-of-court statements that “no

  special protections against undue emphasis are required and the

  jury is entitled to unrestricted access . . . .” Rael, ¶ 32. The court

  was not obliged under DeBella to specifically admonish the jury not

  to give the evidence undue weight. And third, the court

  appropriately exercised its discretion by providing specific

  instructions for the jury to follow in viewing the evidence.

¶ 55   But, Sparks further argues that the precise reason the court

  should have instructed the jury not to give the video unfair weight

  was that, unlike the DVD of Sparks’s out-of-court statements,1 a

  transcript of other testimony that had been subjected to cross-

  examination was not available to the jury during its deliberations.

  We also reject this argument.



  1Sparks notes that he was “manipulated with false information” in
  his interview, but he does not argue that his interview statements
  were coerced and involuntary, so we do not consider that issue.
                                     25
¶ 56   The court specifically instructed the jury to view the video in

  its entirety, to not rewind or fast forward through it, and to view it

  no more than three times. And again, specific instructions to

  control for undue weight are not required for a defendant’s out-of-

  court statements. Id.

¶ 57   The trial court did not abuse its discretion in giving the

  instruction to the jury.

                   VI.    Effective Assistance of Counsel

¶ 58   Sparks contends that the trial court denied him his

  constitutional right to effective assistance of counsel by providing

  his interview video to the jury during deliberations without notifying

  his counsel. We agree but conclude the error was harmless beyond

  a reasonable doubt.

                            A.   Standard of Review

¶ 59   The parties agree that we review the possible violation of

  Sparks’s constitutional right to effective assistance of counsel de

  novo. Sparks contends that this issue was preserved and we

  should apply a harmless beyond a reasonable doubt review. The

  People disagree that this issue was preserved and argue we should

  review for plain error.

                                      26
¶ 60   We need not address this issue because we conclude that even

  under a harmless beyond a reasonable doubt standard, the error is

  harmless. See People v. Mollaun, 194 P.3d 411, 415 (Colo. App.

  2008).

                              B.    Analysis

¶ 61   “The right to counsel exists at every critical stage of a criminal

  proceeding.” Key v. People, 865 P.2d 822, 825 (Colo. 1994); see

  U.S. Const. amend. VI; Colo. Const. art. II, § 16. A court’s

  discussion with the jurors is a critical stage in a criminal

  proceeding. People v. Guzman-Rincon, 2015 COA 166M, ¶ 20. “It is

  therefore constitutional error for a trial judge to respond to an

  inquiry from a jury without first making reasonable efforts to obtain

  the presence of the defendant’s counsel.” Key, 865 P.2d at 825

  (quoting Leonardo v. People, 728 P.2d 1252, 1257 (Colo. 1986)).

¶ 62   The trial court erred in submitting Sparks’s interview video to

  the jury without notifying his counsel. But if a court properly

  responds to a jury’s question during deliberations, its failure to

  have previously secured defense counsel’s presence is harmless

  beyond a reasonable doubt. People v. Isom, 140 P.3d 100, 104-05

  (Colo. App. 2005) (citing People v. Dunlap, 124 P.3d 780 (Colo. App.

                                    27
  2004)). We have concluded above that the court properly responded

  to the jury’s question and did not abuse its discretion in providing

  Sparks’s interview video to the jury with an appropriate instruction.

¶ 63   We also note that there is no indication that counsel’s

  presence would have made any difference. When the court first

  notified the parties’ counsel that it anticipated that the jury would

  request Sparks’s interview video and that it would give a DeBella

  instruction to the jury, defense counsel did not object. And after

  the jury returned its verdict, defense counsel inquired whether the

  court had provided the video to the jury. When the court responded

  that it had and had read the instruction it gave, counsel did not

  object: “Just so I wanted to be clear for the record . . . counsel

  wasn’t informed of the request to view the video.” See Isom, 140

  P.3d at 105 (“[T]here is no indication that the presence of counsel

  would have altered the court’s decision.”).

¶ 64   We therefore conclude that the court’s error in not obtaining

  defense counsel’s presence was harmless beyond a reasonable

  doubt.

                             VII. Conclusion

¶ 65   We affirm the trial court’s judgment of conviction.

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JUDGE DAILEY and JUDGE WELLING concur.




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