COLORADO COURT OF APPEALS                                          2016COA99


Court of Appeals No. 15CA0124
Mesa County District Court No. 11CR1108
Honorable Richard T. Gurley, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

David A. Relaford,

Defendant-Appellant.


                      JUDGMENT AND SENTENCE AFFIRMED

                                   Division V
                          Opinion by JUDGE BERGER
                         Román and Plank*, JJ., concur

                           Announced June 30, 2016


Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2015.
¶1    A jury convicted defendant, David A. Relaford, of twenty-seven

 offenses related to sexual assaults against two child victims, and

 the trial court sentenced him to an aggregate indeterminate term of

 204 years to life under the Colorado Sex Offender Lifetime

 Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S.

 2015. Relaford appeals the judgment of conviction and the

 sentence imposed.

¶2    Relaford argues that the trial court reversibly erred in

 admitting (1) expert testimony about the credibility of child victims

 of sexual assault and (2) numerous sex toys and pornography found

 at his home. He also argues that SOLSA is unconstitutional. We

 address and reject these contentions and affirm.

                   I. Facts and Procedural History

¶3    In the summer of 2011, seven-year-old O.S. and his adoptive

 mother lived with Relaford at his house. Several weeks after O.S.

 and his mother moved out, O.S. told his mother that Relaford had

 sexually assaulted him. His mother called the police, and a police

 detective conducted a forensic interview with O.S.

¶4    During the interview, O.S. described multiple incidents in

 which Relaford sexually assaulted him. O.S. said that Relaford


                                   1
 sometimes used sex toys during the assaults and they had watched

 a pornographic movie and looked at pornographic magazines

 together. O.S. also told the detective that he had witnessed

 Relaford sexually assault another child, M.D., an eight-year-old girl

 who lived nearby and was friends with O.S.

¶5    The detective conducted a forensic interview with M.D. M.D.

 initially denied that anything had happened with Relaford. About

 twenty-five minutes into the interview, the detective began to ask

 more focused questions about M.D.’s relationship and experiences

 with O.S. and Relaford. The detective told M.D. that O.S. said that

 he had seen something happen to M.D. when M.D. was at his

 house. About fifteen minutes later, the detective told M.D. that she

 (the detective) knew what had happened but that “it need[ed] to

 come from M.D.” M.D. responded, “Dave [Relaford] has actually

 done it to me.”

¶6    Like O.S., M.D. detailed several instances of sexual assault by

 Relaford, including at least one instance in which he used a sex toy.

 M.D. also described watching pornographic movies with Relaford

 and looking at pornographic magazines at his house.




                                   2
¶7    The People charged Relaford with five incidents of sexual

 assault against O.S. and six incidents against M.D., differentiated

 by the location where each incident occurred. For each incident,

 Relaford was charged with one count of sexual assault on a child

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

 trust. He was also charged with four counts of committing sexual

 assault on a child as part of a pattern of abuse and one count of

 second degree kidnapping (based on M.D.’s statement that during

 one assault, Relaford took her from the living room of his home into

 his bedroom).

¶8    Both victims testified at trial, and video recordings of their

 forensic interviews were admitted and played for the jury. The

 interviewing detective also testified regarding the interviews and the

 investigation of Relaford, including the search of his home (under a

 warrant) and his police interview.

¶9    The detective testified that the police had found numerous sex

 toys and pornographic videos and magazines at Relaford’s house

 and property. Many of the places where the sex toys and

 pornography were found were consistent with the victims’

 descriptions of those locations. Both victims also said that Relaford


                                      3
  used Vaseline during the assaults, and O.S. testified that Relaford

  got the Vaseline from the bathroom. Vaseline was found in

  Relaford’s bathroom. Additionally, O.S.’s description of several of

  the sex toys Relaford used during the assaults matched the

  appearance of some of the toys found. A sex toy that M.D. gave to

  her mother after her forensic interview was also admitted into

  evidence. Her mother testified that M.D. had told her that Relaford

  had given M.D. the toy with instructions to use it on herself.

¶ 10   The sex toys were submitted for DNA testing. The

  prosecution’s DNA expert testified that DNA samples from one of

  the sex toys O.S. had identified matched O.S.’s and Relaford’s DNA.

  DNA samples from the sex toy M.D. said Relaford had given her

  matched M.D.’s DNA.

¶ 11   The prosecution also presented testimony from the nurses who

  had examined the victims. The nurse who examined O.S. testified

  that the findings she made during her examination of his anus were

  consistent with the disclosures he had made to her about the

  sexual assaults by Relaford. The nurse who examined M.D.

  testified that she did not observe any injuries attributable to the




                                     4
  disclosures M.D. had made to her about the sexual assaults, but

  that did not mean M.D. had not been sexually assaulted.

¶ 12   Another part of the prosecution’s case-in-chief was evidence of

  statements Relaford made during the investigation. The detective

  testified that during her interview of Relaford, he had initially told

  her that he had been alone with both children, that the children

  had never been in his bedroom, and that his pornography was

  locked up where the children could not access it. However, after

  the detective told Relaford that items had been collected for DNA

  tests, he said the children could have gotten into his bedroom and

  “snooped,” and that he had never been alone with the children.

¶ 13   The detective also testified about a letter Relaford had written

  to his girlfriend after his arrest, which she had given to the police.

  In the letter, Relaford said that he had once masturbated in their

  tent when he was alone, and then he had “cleaned up” with soap

  and water. He said that when he went camping with O.S., O.S.

  vomited in almost the same spot. The prosecution argued that

  these statements were significant because O.S. alleged that Relaford

  had sexually assaulted him when they were camping, and before

  Relaford wrote the letter, the detective had told him essentially that


                                     5
  if the police found his DNA and the kids’ DNA mixed together, it

  would be very bad for him.

¶ 14   Relaford’s defense at trial was primarily that the victims’

  testimony was not believable. Among other things, defense counsel

  emphasized that (1) O.S. and M.D. testified to certain details that

  they had omitted in their forensic interviews; (2) M.D. initially

  denied that Relaford had sexually assaulted her; and (3) O.S.’s

  description in his interview regarding some of Relaford’s physical

  characteristics was inaccurate.

¶ 15   The jury convicted Relaford on all charges. The trial court

  sentenced Relaford to twenty-four years’ imprisonment for

  kidnapping, to be served consecutively to fifteen consecutive

  sentences of twelve years to life that were concurrent to eleven

  sentences of six years to life for the sexual assault convictions.

                           II. Expert Testimony

                           A. Additional Facts

¶ 16   During trial, the prosecution presented testimony from a

  marriage and family therapist who was qualified as an expert in

  “child sexual assault and abuse, specifically patterns of disclosure,

  outcry statements, Victim-Offender relationship dynamics, the


                                     6
  process of memory, and suggestibility and fabrications.” Defense

  counsel did not object to the therapist’s qualifications as an expert

  in these areas. The therapist testified that she did not review any of

  the police reports in the case or watch the forensic interviews, but

  the prosecutor had provided her with some basic information about

  the ages of the children, the relationships of the parties, and where

  the events occurred.

¶ 17   The therapist then described the process of memory in general

  and in children who have been sexually assaulted. She testified

  that with multiple incidents of sexual assault occurring in similar

  locations, children might mix up the details of each episode, and

  inconsistent statements about what happened when were not

  unusual. Additionally, she testified that younger children were

  much more likely to omit an accurate detail about an event in one

  interview that they included in a later interview than they were to

  agree with suggestive or coercive questioning about something that

  did not occur. Defense counsel did not object to any of this

  testimony, and Relaford does not challenge it on appeal.

¶ 18   The prosecutor next asked the therapist a series of questions

  about “fabrication.” The therapist testified that children do lie. She


                                    7
  said that preschool-age children lie when they are playing games

  like hide-and-go-seek, and older children lie to avoid the

  consequences of their actions and the blame, disappointment, or

  disapproval of adults. However, she testified that research showed

  that it is “pretty unusual, even kind of rare” for children to lie about

  an adult. She testified that the few times they do so is because they

  have mental health issues and (or alternatively) they are telling lies

  in “the school environment” about teachers, family members, or

  daycare providers.

¶ 19   After this testimony, the prosecutor asked the therapist about

  her experiences with children fabricating allegations of sexual

  assault. She testified that there were two areas in which

  practitioners had encountered such fabrication. One was with

  “system-savvy adolescents” who have “been in lots of different sorts

  of institutional settings” and might fabricate an allegation against a

  caregiver to force a placement change or to “get even.” The other

  was in “very, very disturbed, high-conflict custody cases” in which

  one parent convinced the child to say the other parent was sexually

  abusing him or her. The therapist added that she had also




                                     8
  encountered situations in which adults misunderstood an innocent

  statement by a preschooler as an allegation of sexual assault.

¶ 20   The prosecutor then asked the therapist, “Okay, what about,

  of course, in our situation we’re talking about a seven- and eight-

  year-old, a little bit beyond preschool? So, I mean, have you ever

  experienced a situation where somebody in that age, seven or eight

  — ,” at which point defense counsel objected. At the bench, defense

  counsel explained that the prosecutor was trying to impermissibly

  “get [the therapist] to say that these kids were not lying.” The trial

  court sustained the objection but told the prosecutor he could ask

  another question. The following colloquy between the prosecutor

  and the therapist then occurred:

             Q. [Prosecutor:] Okay, in your personal
             experience and practice, have you ever come
             across a false allegation of sexual abuse for —
             in any other circumstance, other than what
             you’ve already mentioned: severe mental
             health, system-savvy adolescent regarding
             placement, or high-conflict custody?

             A. [Therapist:] The — those are the only ones
             that I can think of that I have professionally
             seen in 30 years, or in the people I’ve
             supervised.

  Defense counsel did not object to this testimony.



                                     9
¶ 21   The therapist proceeded to testify about other topics, such as

  the dynamics between sexual abuse victims and perpetrators,

  including why a child might deny that abuse occurred or delay in

  disclosing a sexual assault; the typical demeanor of children during

  forensic interviews and when a child might make a “fantastic

  statement” about something that cannot be true; and the

  “grooming” of children for sexual assault, including the use of

  pornography and sex toys. No objections were lodged to this

  testimony, and none of it is challenged on appeal.

¶ 22   At the close of evidence, the trial court gave the jury a

  standard credibility of witnesses instruction and instructed the jury

  that it was not bound by the testimony of experts and expert

  testimony was to be weighed as that of any other witness.

¶ 23   During rebuttal closing argument, the prosecutor relied on the

  therapist’s testimony on fabrication to argue that none of the

  circumstances in which the therapist testified children lie about

  sexual assault were present here, thus implying that the victims

  were telling the truth.




                                    10
                         B. Law and Application

¶ 24   Relaford argues that the therapist’s testimony regarding the

  circumstances in which a child might fabricate claims of sexual

  assault and her statement that she had never encountered sexual

  assault fabrications in any other circumstances constituted

  impermissible opinion testimony that the victims in this case were

  not lying. We agree, but we conclude that the admission of this

  evidence did not constitute plain error.

                    1. Admissibility of the Testimony

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

  discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). A trial

  court abuses its discretion if its ruling was manifestly arbitrary,

  unreasonable, or unfair, id., or if it misconstrued or misapplied the

  law, People v. Glover, 2015 COA 16, ¶ 10.

¶ 26   CRE 402 provides that relevant evidence is generally

  admissible. However, specific evidentiary rules limit the

  admissibility of certain types of evidence. CRE 404(a) prohibits

  “[e]vidence of a person’s character or a trait of his character” if

  admitted “for the purpose of proving that he acted in conformity

  therewith on a particular occasion.” CRE 608(a) provides a limited


                                     11
  exception to the general rule of CRE 404(a) and allows a party,

  under the prescribed conditions, to present opinion or reputation

  evidence of a witness’s character for truthfulness. People v. Serra,

  2015 COA 130, ¶ 62.

¶ 27   “CRE 608 evidence is not permitted to establish whether a

  witness testified truthfully on the witness stand or whether he or

  she was truthful on a particular occasion.” Liggett v. People, 135

  P.3d 725, 731 (Colo. 2006). “[E]xperts may not offer their direct

  opinion on a child victim’s truthfulness or their opinion on whether

  children tend to fabricate sexual abuse allegations.” People v.

  Wittrein, 221 P.3d 1076, 1081 (Colo. 2009). The supreme court has

  held that expert testimony that children tend not to fabricate stories

  of sexual abuse is “tantamount to [an expert] testifying that [a] child

  victim was telling the truth about her allegations.” Id. at 1082

  (citing People v. Snook, 745 P.2d 647, 648 (Colo. 1987)).1


  1 In People v. Snook, 745 P.2d 647, 648-49 (Colo. 1987), the
  supreme court concluded that the expert’s testimony that children
  tend not to fabricate stories of sexual abuse was improper under
  CRE 608(a) also because the testimony “necessarily refer[ed] to [the
  victim’s] character for truthfulness,” and the victim’s character for
  truthfulness had not been attacked at the time the expert opinion
  was offered. Although the supreme court did not explicitly state


                                    12
¶ 28   On the other hand, expert testimony is admissible under CRE

  702 “if the expert’s specialized knowledge will assist the jury in

  understanding the evidence or in determining a fact in issue.”

  People v. Mintz, 165 P.3d 829, 831 (Colo. App. 2007). Along these

  lines, “[a]n expert may testify as to the typical demeanor and

  behavioral traits displayed by a sexually abused child.” Id. This

  type of testimony is generally admissible because it assists the jury

  in understanding the victim’s behavior after the incident — why the

  victim acted the way he or she did. See, e.g., People v. Fasy, 829

  P.2d 1314, 1317-18 (Colo. 1992); People v. Morrison, 985 P.2d 1, 3-

  6 (Colo. App. 1999), aff’d, 19 P.3d 668 (Colo. 2000); People v. Koon,

  724 P.2d 1367, 1369-70 (Colo. App. 1986). “Background data

  providing a relevant insight into the puzzling aspects of the child’s

  conduct and demeanor which the jury could not otherwise bring to

  its evaluation . . . is helpful and appropriate in cases of sexual

  abuse of children . . . .” People v. Whitman, 205 P.3d 371, 383

  (Colo. App. 2007) (citation omitted).

  that the testimony was improper both for this reason and because
  the expert opinion referred to the victim’s truthfulness on a specific
  occasion, a careful reading of the decision shows that this is the
  case.


                                     13
¶ 29   For example, in Koon, 724 P.2d at 1369, a division of this

  court held admissible expert “testimony by [a] police psychologist

  about behavioral patterns of child incest victims, and the

  supporting testimony by [a] social worker that the [child victim] fit

  these patterns.” The division explained that the testimony was

  admissible to show that the reaction of the victim was “uniquely

  similar to the reaction of most victims of familial child abuse.” Id.

  at 1369-70.

¶ 30   While such “testimony may incidentally give rise to an

  inference that a victim is or is not telling the truth about the

  specific incident,” “this fact alone is insufficient to deny admission

  of the evidence, because expert testimony generally tends to bolster

  or attack the credibility of another witness.” Id. at 1370; see also

  Morrison, 985 P.2d at 5-6 (Although this type of testimony

  “necessarily carrie[s] with it the implication that the child’s report of

  sexual abuse was true,” it is proper expert testimony because it

  “aid[s] the jury in understanding the typicality of reactions by

  [children] who have been subjected to sexual abuse that might,

  under other circumstances, be considered bizarre.”); People v.




                                     14
  Aldrich, 849 P.2d 821, 829 (Colo. App. 1992); People v. Deninger,

  772 P.2d 674, 676 (Colo. App. 1989).

¶ 31   However, Koon and similar cases “do not stand for the

  proposition that testimony of general characteristics of any type is

  admissible to attack or support a witness’s credibility.” People v.

  Cernazanu, 2015 COA 122, ¶ 20. Rather, they “deal with the

  admissibility of general characteristics evidence which (1) relates to

  an issue apart from credibility and (2) only incidentally tends to

  corroborate a witness’s testimony.” Id.

¶ 32   The therapist’s testimony here, that she had not encountered

  any circumstances in her thirty-year career in which children had

  lied about sexual abuse other than those she had described, did not

  relate to an issue apart from credibility. The testimony was not an

  explanation of the typical demeanor and behavioral traits displayed

  by a sexually abused child for the purpose of allowing the jury to

  compare the victims’ behavior with the typical behavior of child

  sexual abuse victims and aid it in understanding the victims’

  actions. Cf. Morrison, 985 P.2d at 6 (“[S]ubstantially all of th[e]

  expert’s testimony was properly received under CRE 702 to aid the




                                     15
  jury in understanding the typicality of reactions by young boys who

  have been subjected to sexual abuse.”).

¶ 33   The other testimony by the therapist, describing in general

  terms the process of memory, common reactions of child victims of

  sexual abuse, and the typical relationship between victims and

  perpetrators, served this purpose. That testimony could have

  assisted the jury in understanding, for example, O.S.’s delay in

  disclosing the sexual assaults to his mother; the inconsistencies

  between each victim’s statements, including why the victim

  mentioned certain details in one statement that he or she had

  omitted in a prior statement; M.D.’s initial denial that Relaford had

  sexually assaulted her; and O.S.’s inaccurate description of

  Relaford’s physical appearance. Thus, the therapist’s testimony

  regarding the general behavior of child sexual assault victims could

  have aided the jurors in deciding the case by providing them a

  context in which to understand specific evidence, but it did not tell

  them what result to reach.

¶ 34   In contrast, the therapist’s testimony about children

  fabricating sexual assault allegations did not serve any purpose

  other than to attempt to influence the jurors’ credibility


                                    16
  determinations. See id.; see also Snook, 745 P.2d at 649 (“[T]he

  jury’s only conceivable use of [the] testimony would be as support

  for the [victims’] truthful character[s].”). Because the therapist

  testified that she had not encountered any circumstances other

  than those she had described in which children lied about being

  sexually assaulted, and those circumstances were not present in

  this case, the testimony necessarily constituted an impermissible

  expert opinion that the victims were “almost certainly telling the

  truth.” Snook, 745 P.2d at 649.

¶ 35   Accordingly, this evidence should not have been presented to

  the jury.

                                2. Plain Error

¶ 36   Although defense counsel objected to one question that the

  prosecutor asked the therapist and the objection was sustained,

  defense counsel did not object to the testimony that we have

  concluded was inadmissible. We thus review for plain error. See

  Wittrein, 221 P.3d at 1082.

¶ 37    “To constitute plain error, the trial court’s error must be

  obvious and substantial and so undermine the fundamental

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


                                      17
  of the judgment of conviction.” People v. Weinreich, 119 P.3d 1073,

  1078 (Colo. 2005).

¶ 38   An error may be obvious “if the issue has been decided by a

  division of this court or the Colorado Supreme Court.” People v.

  Ujaama, 2012 COA 36, ¶ 42.

¶ 39   For two reasons, the admission of the therapist’s testimony on

  fabrication was not plain error.

¶ 40   First, the error was not “obvious.” Miller, 113 P.3d at 750.

  The therapist did not directly testify that the child victims were

  telling the truth, which would have been obviously impermissible.

  Conversely, under the existing case law, it is not always clear (or

  even consistent among cases) where to draw the line between expert

  testimony on the typical characteristics of sexual assault victims

  that is permissible and that which is impermissible because it is

  tantamount to an opinion that the victim was telling the truth.

¶ 41   Cernazanu, ¶ 20, explicitly states the rule that general

  characteristics evidence is permissible when the evidence “relates to

  an issue apart from credibility and . . . [it] only incidentally tends to

  corroborate a witness’s testimony.” But at issue in Cernazanu,

  ¶ 21, was testimony regarding “‘characteristics’ peculiar to [the


                                     18
  victim that] were directly indicative of [her] credibility,” not the

  characteristics “of a class of victims.” Cernazanu’s holding thus did

  not concern when expert testimony on the general characteristics of

  sexual assault victims is inadmissible because it constitutes an

  opinion that the victims in the case had been truthful.

¶ 42   Accordingly, the issue here “ha[d] not yet been decided by a

  division of this court or the Colorado Supreme Court,” and so the

  error was not obvious. People v. Sandoval-Candelaria, 328 P.3d

  193, 201 (Colo. App. 2011), rev’d on other grounds, 2014 CO 21; see

  also People v. O’Connell, 134 P.3d 460, 464 (Colo. App. 2005) (“[We]

  cannot correct an error pursuant to [plain error review] unless the

  error is clear under current law.”) (citation omitted). However, the

  inadmissibility of expert testimony on the general characteristics of

  child sexual assault victims that does not relate to an issue other

  than credibility is an issue that has now been decided by a division

  of this court.

¶ 43   The second reason the admission of the expert’s testimony in

  this case was not plain error is that the record does not “reveal[] a

  reasonable possibility that the error contributed to [Relaford’s]

  conviction[s].” Weinreich, 119 P.3d at 1078. A reviewing court


                                      19
  “must evaluate [an error] in light of the entire record below” to

  determine its effect on the verdict and the trial. People v. Eppens,

  979 P.2d 14, 18 (Colo. 1999). Whether the erroneous admission of

  testimony that a child victim was credible is plain error “turns to a

  considerable extent on both the strength and breadth of the

  properly admitted evidence, the extent and significance of the

  improper evidence or testimony, and the reliance, if any, of the

  prosecution in closing arguments on the improper evidence.”

  People v. Cook, 197 P.3d 269, 276 (Colo. App. 2008).

¶ 44   Cases in which this type of error was held reversible include

  those in which “there was no physical evidence of, or third-party

  eyewitness testimony to, the alleged sexual assaults.” Koon, 724

  P.2d at 1370-71; see also Snook, 745 P.2d at 649; Cernazanu, ¶ 27;

  Cook, 197 P.3d at 276.

¶ 45   Conversely, an important factor that “mitigate[s] the potential

  power” of an expert’s improper opinion of a child victim’s veracity is

  that other evidence corroborates the child victim’s allegations.

  Eppens, 979 P.2d at 18-19. Indeed, “the major factor [in

  determining whether an error was substantial] is the quantum and




                                    20
  quality of other and independent corroborating evidence of guilt.”

  Cook, 197 P.3d at 277.

¶ 46   For instance, in People v. Gaffney, 769 P.2d 1081, 1087-89

  (Colo. 1989), the supreme court held harmless the admission of

  testimony by a doctor that the child victim’s “history,” which

  included his statement that the defendant sexually assaulted him,

  was “very believable.” The supreme court explained that “of

  significance is the fact that [the victim’s] statement to [the doctor]

  about the sexual assault was not without corroboration,” which

  included the victim’s testimony, the doctor’s testimony that the

  results of the physical examination of the victim were consistent

  with the victim’s description of the sexual assault, and the victim’s

  mother’s and the investigating police officer’s testimony about the

  victim’s statements to them. Id. at 1089.

¶ 47   Similarly, in People v. Gillispie, 767 P.2d 778, 780 (Colo. App.

  1988), the admission of testimony by an expert that she believed

  the child victim’s statement that she had been sexually abused was

  held harmless by a division of this court in part because “[t]he child

  victim described the assaults to four different people, each




                                     21
  description was consistent with the others, and medical evidence

  corroborated her detailed explanations.”

¶ 48   Here, although the prosecutor relied on the therapist’s

  improper fabrication testimony during rebuttal closing, most of the

  prosecutor’s initial and rebuttal closing arguments focused on other

  evidence and the other parts of the therapist’s testimony that were

  “properly received under CRE 702 to aid the jury in understanding

  the typicality of reactions by [children] who have been subjected to

  sexual abuse.” Morrison, 985 P.2d at 4-6. The victims also both

  provided detailed testimony about the assaults and were cross-

  examined by defense counsel, thus “providing the jury with a full

  opportunity to judge [their] credibility in light of [their] demeanor.”

  Eppens, 979 P.2d at 18-19. And the “jury was properly instructed

  as to how to evaluate expert testimony and . . . the general

  credibility . . . of witnesses.” Tevlin v. People, 715 P.2d 338, 339-40,

  342 (Colo. 1986).

¶ 49   While the credibility of O.S. and M.D. was undeniably a

  central focus at trial, there was substantial evidence, perhaps even

  overwhelming evidence, corroborating the victims’ statements, such

  as the nurse’s testimony that her physical examination of O.S.


                                     22
  showed injury consistent with sexual assault, the DNA evidence

  from the sex toys, and the details of the assaults that the victims

  provided that matched the evidence and the location of the evidence

  found in Relaford’s home.

¶ 50       Moreover, the victims had very similar accounts of how and

  where Relaford sexually assaulted them, and O.S. testified that he

  had seen Relaford sexually assault M.D. The victims’ testimony,

  their forensic interview statements, and the testimony of other

  people to whom they had described the assaults — the detective,

  their mothers, and the nurses — showed that each victim’s account

  was mostly the same in each statement. And the statements of

  Relaford that were admitted tended to indicate consciousness of

  guilt.

¶ 51       Under all of these circumstances, we conclude that the

  admission of the therapist’s testimony on fabrication did not “so

  undermine[] the fundamental fairness of the trial itself as to cast

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

  Wittrein, 221 P.3d at 1082 (citation omitted). Thus, there was no

  plain error, and reversal is not required.




                                      23
                     III. Sex Toys and Pornography

                           A. Additional Facts

¶ 52   Over defense counsel’s objection, the trial court granted the

  prosecution’s pretrial motion to admit as res gestae all of the sex

  toys and pornographic videos and magazines found during the

  search of Relaford’s home.

¶ 53   At trial, numerous sex toys and accessories, and pictures of

  the items, were admitted into evidence, as was the detective’s

  testimony about finding each item during the search of Relaford’s

  home. The items admitted included at least three (and maybe four,

  the record is unclear) sex toys that O.S. identified in his testimony

  as those that Relaford had used when he sexually assaulted him.

  The sex toy that M.D. said Relaford had used on her and given to

  her was also admitted. There were other sex toys and accessories

  admitted, however, that were not identified or discussed by either

  victim.

¶ 54   Also admitted were eight pornographic VHS videos, thirty-

  three pornographic DVD videos, twenty-four pornographic

  magazines, and photographs of the items. The detective’s testimony

  about these items included that although M.D. and O.S. had told


                                    24
  her that the videos they saw with Relaford had adults, teens, and

  children in them, the police did not find any illegal child

  pornography. The detective testified, however, that many of the

  videos found included “school-age dressed younger small-framed

  individuals that looked younger” (and one video was entitled,

  “Barely Legal Boot Camp Teens in Training”). The detective further

  testified that one of the videos matched a description M.D. had

  provided about watching a pornographic video that looked

  “cartoonish.”

¶ 55   During closing argument, the prosecutor discussed the sex

  toys that the victims had identified and the results of the DNA

  testing and argued that this evidence corroborated the victims’

  testimony. The prosecutor also emphasized that the sex toys and

  pornography were found in locations consistent with the victims’

  descriptions.

¶ 56   In his closing argument, defense counsel essentially argued

  that the prosecution had introduced all of the sex toys and

  pornography to try to convince the jury that Relaford was a bad

  person and a “sexual molester.” In rebuttal closing argument, the

  prosecutor expressly disclaimed such a purpose. The prosecutor


                                    25
  stated that it would be inappropriate for the jury to find Relaford

  guilty of sexual assault just because he had sex toys and

  pornography; rather, the prosecution had introduced the evidence

  because it corroborated the victims’ disclosures and to establish the

  thoroughness of the police investigation.

                         B. Law and Application

¶ 57   Relaford concedes that the admission of evidence regarding

  the sex toys the children identified was proper, but he argues that

  the trial court erred in admitting evidence of the other sex toys and

  the pornography because it was irrelevant and constituted

  impermissible bad acts or character evidence. We agree that some

  of this evidence probably should not have been admitted, but we

  conclude that any error in this respect was harmless.

¶ 58   We review the trial court’s decision to admit the evidence for

  an abuse of discretion. See People v. Perry, 68 P.3d 472, 475 (Colo.

  App. 2002). Because Relaford objected to the admission of the

  evidence, we review for harmless error. See Yusem v. People, 210

  P.3d 458, 463 (Colo. 2009).

¶ 59   “Relevancy is a threshold standard which all evidentiary

  offerings must meet.” Vialpando v. People, 727 P.2d 1090, 1094


                                    26
  (Colo. 1986). Evidence that is irrelevant — evidence that does not

  have 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 — is

  inadmissible at trial. CRE 401, 402. However, even relevant

  evidence may be excluded under CRE 403 “if its probative value is

  substantially outweighed by the danger of unfair prejudice.”

¶ 60   Evidence may also be excluded under CRE 404(b), which

  prohibits the admission of “other crimes, wrongs, or acts . . . to

  prove the character of a person in order to show that he acted in

  conformity therewith.” If evidence of other acts is offered only to

  show a defendant’s bad character and that he “acted in conformity

  therewith” (often described as propensity evidence), the evidence

  will always be inadmissible. Masters v. People, 58 P.3d 979, 995

  (Colo. 2002).

¶ 61   CRE 404(b) generally governs evidence of a defendant’s other

  acts that are extrinsic to the events charged. People v. Gee, 2015

  COA 151, ¶ 27. Res gestae evidence, on the other hand, is

  “[e]vidence of other offenses or acts that is not extrinsic to the

  offense charged, but rather, is part of the criminal episode or


                                     27
  transaction with which the defendant is charged.” People v.

  Quintana, 882 P.2d 1366, 1373 (Colo. 1994). Thus, while “CRE

  404(b) evidence is independent from the charged offense, res gestae

  evidence is linked to the offense.” Id. at 1373 n.12. Res gestae

  evidence is admissible so long as it is relevant and its probative

  value is not substantially outweighed by the danger of unfair

  prejudice. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.

  1990).

¶ 62   The sex toys identified by the victims were plainly relevant and

  admissible as direct evidence that Relaford had committed the

  crimes charged. Similarly, because pornographic magazines and

  videos were described by the victims and were found where the

  victims said that they had seen them, at least some of the

  pornography was properly admitted to corroborate the victims’

  statements. See Aldrich, 849 P.2d at 829 (concluding that the trial

  court did not abuse its discretion in admitting pornographic

  magazines found in the defendant’s home under very similar

  circumstances).

¶ 63   Because this evidence was directly relevant, we do not need to

  consider the trial court’s conclusion that it was admissible as res


                                    28
  gestae. We may affirm a trial court’s ruling on grounds different

  from those upon which it relied, as long as they are supported by

  the record. People v. Chase, 2013 COA 27, ¶ 17. “Res gestae is a

  theory of relevance which recognizes that certain evidence is

  relevant because of its unique relationship to the charged crime,”

  and thus, “where . . . evidence is admissible under general rules of

  relevancy,” there is “no need to consider an alternative theory of

  relevance, such as res gestae.” People v. Greenlee, 200 P.3d 363,

  368 (Colo. 2009); see also Gee, ¶ 34.

¶ 64   Similarly, evidence of the sex toys described in the victims’

  statements and at least some of the pornography was not prohibited

  by CRE 404(b) because it did not “involve[] a separate and distinct

  episode wholly independent from the offense charged,” Quintana,

  882 P.2d at 1372, and its relevance did “not depend on an

  impermissible inference about [Relaford’s] character,” Greenlee, 200

  P.3d at 368; see also People v. Munoz, 240 P.3d 311, 320-21 (Colo.

  App. 2009).

¶ 65   Nevertheless, it is difficult for us to discern the relevance of the

  evidence of the sex toys and accessories not identified by the

  victims or not found in a location they described. Likewise,


                                    29
  although some of the pornography was admissible to corroborate

  the victims’ statements, not every pornographic video and magazine

  found was necessarily relevant for this purpose. And even if all the

  pornography was somehow relevant, the “major function [of CRE

  403] is . . . excluding matters of scant or cumulative probative force,

  dragged in by the heels for the sake of its prejudicial effect.”

  Masters, 58 P.3d at 1001 (citation omitted).

¶ 66   However, even if we were to conclude that some of the sex toys

  and pornography were irrelevant or their admission was prohibited

  by CRE 403 or CRE 404(b), we would not reverse on this basis.

  “Even when a trial court may have abused its discretion in

  admitting certain evidence, reversal is not required if the error was

  harmless . . . .” People v. Summitt, 132 P.3d 320, 327 (Colo. 2006).

  “If a reviewing court can say with fair assurance that, in light of the

  entire record of the trial, the error did not substantially influence

  the verdict or impair the fairness of the trial, the error may properly

  be deemed harmless.” People v. Stewart, 55 P.3d 107, 124 (Colo.

  2002) (citation omitted). Thus, a defendant is only “entitled to

  reversal if there is ‘a reasonable probability that the error




                                     30
  contributed to the defendant’s conviction.’” Yusem, 210 P.3d at 469

  (citation omitted).

¶ 67   There was no such reasonable probability here, especially

  considering that some of the sex toys and pornography were

  properly admitted, and the prosecutor did not argue — and in fact

  explicitly disclaimed — that the jury should use the sex toys and

  pornography as propensity evidence. Moreoever, as discussed

  above in Part II of the opinion, the prosecution presented a

  substantial, and maybe overwhelming, amount of other evidence

  that showed Relaford’s guilt. Cf. Summitt, 132 P.3d at 327 (holding

  that if properly admitted evidence overwhelmingly shows guilt, there

  is no reasonable probability that an error contributed to the

  conviction).

¶ 68   Considering the entire record of the trial and that the jury

  properly heard and viewed evidence of some of the sex toys and

  pornography, we can say with fair assurance that evidence of the

  other sex toys and pornography did not substantially influence the

  verdict or affect the fairness of the trial. See Masters, 58 P.3d at

  1002-03.




                                    31
¶ 69   Accordingly, even if the admission of evidence of certain sex

  toys and some of the pornography found at Relaford’s home was

  error, reversal is not required.

                                IV. SOLSA

¶ 70   Relaford argues that SOLSA, § 18-1.3-1004, C.R.S. 2015, is

  facially unconstitutional.2 He contends that SOLSA violates an

  offender’s procedural and substantive due process and equal

  protection rights, the prohibition against cruel and unusual

  punishment, and the separation of powers doctrine.

¶ 71   Relaford did not raise these constitutional challenges at trial,

  and we thus could decline to review them. See People v. DeWitt,

  275 P.3d 728, 730 (Colo. App. 2011). However, even if we were to

  exercise our discretion to review Relaford’s constitutional claims, we

  would conclude that he is not entitled to relief.

¶ 72   As Relaford concedes, several divisions of this court have

  previously considered challenges to the constitutionality of SOLSA,


  2 Relaford also asserts that SOLSA is unconstitutional as applied.
  However, this assertion is not supported by any analysis or
  supporting authority. We do not consider bare or conclusory
  assertions presented without argument or development. See People
  v. Durapau, 280 P.3d 42, 49 (Colo. App. 2011).


                                     32
  and all have concluded that it is constitutional. See People v.

  Collins, 250 P.3d 668, 679 (Colo. App. 2010) (listing cases).

  Relaford’s arguments are identical to those considered and rejected

  in those cases. See, e.g., People v. Dash, 104 P.3d 286, 290-93

  (Colo. App. 2004); People v. Oglethorpe, 87 P.3d 129, 133-36 (Colo.

  App. 2003); People v. Strean, 74 P.3d 387, 393-95 (Colo. App.

  2002).

¶ 73   Relaford has not provided any compelling reason for us to

  reconsider or depart from those decisions, and we reject his

  contentions for the reasons stated in those cases. See People v.

  Villa, 240 P.3d 343, 359 (Colo. App. 2009).

                             V. Conclusion

¶ 74   The judgment and sentence are affirmed.

       JUDGE ROMÁN and JUDGE PLANK concur.




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