Peo v. Martinez

     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
                                                              October 8, 2020

                               2020COA141

No. 17CA1583, Peo v Martinez — Evidence — Admissibility —
Victim Impact Evidence — Irrelevant Evidence Inadmissible

     A division of the court of appeals considers whether victim

impact evidence is admissible during the guilt/innocence phase of a

sexual assault trial. The division holds that the trial court erred by

admitting victim impact evidence because the evidence did not

make any material fact or element of the offense more or less

probable and was thus inadmissible. Even though the trial court

erred by admitting the victim impact evidence, however, under the

circumstances of this case, the division concludes that the

admission of the evidence was harmless.
COLORADO COURT OF APPEALS                                         2020C0A141


Court of Appeals No. 17CA1583
City and County of Denver District Court No. 16CR710
Honorable Shelley I. Gilman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Samuel Martinez,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE LIPINSKY
                         Navarro and Tow, JJ., concur

                          Announced October 8, 2020


Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Victim impact testimony packs a punch at a criminal trial.

 Trial courts may understandably be inclined to give the victim and

 the victim’s family the catharsis of describing the effect on them of

 the crime with which the defendant is charged. But the

 admissibility of such evidence can deprive the defendant of the right

 to be judged based on the jury’s rational deliberation, rather than

 on jurors’ visceral reaction upon hearing how the defendant’s

 alleged acts affected the victim. “A fair and impartial jury is a key

 element of a defendant’s constitutional right to a fair trial under

 both the United States and Colorado Constitutions.” People v. Abu-

 Nantambu-El, 

, ¶ 14, 

, 1047 (citations

 omitted).

¶2    Today we decide that a trial court erred by allowing a jury to

 hear victim impact evidence — “that evidence relating to the victim's

 personal characteristics and to the physical, emotional, or social

 impact of a crime on its victim and the victim's family,” Smith v.

 State, 

, 416 (Wyo. 2005) — during the guilt/innocence

 portion of a sexual assault trial. The evidence had the potential to

 shift the jury’s focus improperly from deciding whether the

 defendant, Joseph Samuel Martinez, committed the crime to


                                    1
 whether a guilty verdict would assuage the trauma of A.R., the

 victim.

¶3    Under the circumstances of this case, however, the admission

 of the victim impact evidence constituted harmless error. The guilty

 verdict rested on the jury’s implicit but necessary finding that

 Martinez lacked credibility in claiming that A.R. had consented to

 engage in sex with him. Thus, the admission of the victim impact

 evidence did not affect Martinez’s substantial rights and there is no

 reasonable probability that it contributed to his conviction.

¶4    We reject Martinez’s other arguments and affirm his judgment

 of conviction entered on the jury verdict finding him guilty of sexual

 assault on a victim incapable of appraising the nature of her

 conduct.

            I.   Background Facts and Procedural History

                           A.   The Incident

¶5    The trial in this case rested on a single factual dispute —

 whether Martinez had known that A.R. was too intoxicated to

 consent to sex. Every other material fact was undisputed.

¶6    A.R. recalled consuming three drinks in three hours at a

 Denver bar. Her last memory of the evening was checking her


                                   2
 phone and using the restroom at the bar at around 9:00 p.m.

 A.R.’s bank records reflected that she continued to make purchases

 at the bar, in addition to the three drinks, as the evening wore on.

¶7    A.R. next remembered lying on the ground at a Regional

 Transportation District (RTD) light-rail station. She recalled that an

 RTD officer helped her board a train and that she felt “very

 confused, very disoriented,” and “[v]ery, very drunk.” While on the

 train, A.R. noticed that her sweatshirt was inside out and that she

 was missing her identification card, bus pass, debit card, lunch

 bag, and items she had purchased before visiting the bar. She later

 discovered that her marijuana pipe and marijuana were also

 missing. A.R. did not remember much about the initial train ride or

 that she had transferred trains.

¶8    A.R. arrived at the light-rail station nearest her home shortly

 before 2:00 a.m. She remembered borrowing a stranger’s cell phone

 to call a cab. A.R. recalled that the cab driver was “nice,” but did

 not remember the specifics of their conversation. When she

 reached her home, A.R. awakened her mother to ask for money to

 pay the cab driver. Because A.R. was “stumbling” and “slurring her




                                    3
  words,” A.R.’s mother said she believed A.R. was “completely

  drunk.”

¶9     The next day, after experiencing painful bowel movements and

  seeing blood in the toilet, A.R. told her mother that she “th[ought]

  something bad happened.” A.R. and her mother went to the

  hospital, where A.R. underwent a sexual assault examination. A

  nurse collected DNA, blood, and urine samples from A.R. The

  examination revealed that A.R. had a small but “significant” rectal

  tear, a small abrasion to her knee, and a sore thumb. The DNA

  obtained during A.R.’s examination matched that of Martinez. A

  DNA test of Martinez’s saliva confirmed the match.

¶ 10   When a detective notified A.R. of the DNA match and showed

  A.R. a picture of Martinez, A.R. said she did not recognize him.

  Based on this information, the prosecution charged Martinez with

  one count of sexual assault on a victim incapable of appraising the

  nature of her conduct, pursuant to section 18-3-402(1)(b), C.R.S.

  2019.

                          B.    Martinez’s Trial

¶ 11   At Martinez’s trial, A.R. and her mother testified about the

  impact of the alleged sexual assault on A.R., including that,


                                    4
  following the incident, A.R. exhibited signs of depression and had a

  “close suicidal scare.” Martinez’s counsel objected to the relevancy

  of this testimony and, after the district court overruled his

  objection, moved for a mistrial. The court denied Martinez’s

  motion, but permitted him to cross-examine A.R. and her mother

  on issues related to A.R.’s mental health. Martinez’s counsel

  pursued this line of cross-examination.

¶ 12   In addition to discussing the impact of the alleged sexual

  assault, A.R. testified that her light-rail commute from downtown

  Denver typically took an average of between an hour and an

  hour-and-a-half. On the night of the incident, however, it took A.R.

  three hours and eleven minutes to return home from downtown

  Denver.

¶ 13   The detective who investigated the alleged sexual assault

  testified next. Although the prosecutor had neither designated him

  nor qualified him as an expert witness, the detective testified that

  A.R.’s injuries and demeanor during their interview were consistent

  with the types of injuries and demeanor he had seen in other

  victims of sexual assault.




                                     5
¶ 14   An expert witness in the fields of “forensic toxicology” and “the

  effect of alcohol and controlled substances on the human body” (the

  toxicology expert) also testified for the prosecution. Based on the

  level of alcohol in A.R.’s urine sample taken during her sexual

  assault examination and the average alcohol elimination rate for a

  female with A.R.’s weight, the toxicology expert opined that A.R.’s

  peak blood alcohol concentration on the night of the incident had

  been between 0.3 and 0.4 percent. The expert said that A.R. would

  have had to consume between nine and eleven drinks over a

  two-and-a-half-hour period to reach that level of intoxication.

¶ 15   The expert further opined that a person who has consumed

  that amount of alcohol can “blackout,” meaning that he or she is

  conscious but is not forming memories. The expert testified that

  she would expect to see outward signs of impairment from a person

  in a blackout state.

¶ 16   Finally, the prosecutor introduced into evidence

  video-recordings from several RTD light-rail stations on the night of

  the incident. The videos showed A.R. stumbling, falling while

  crossing light-rail tracks, sleeping on station benches and

  platforms, missing trains, and getting on a wrong train.


                                    6
¶ 17   Martinez’s defense rested on his contention that he and A.R.

  had engaged in consensual sex. He said that A.R. approached him

  and a group of friends and asked one of his friends whether he

  wanted to have sex with her. According to Martinez, after his friend

  rejected A.R.’s advances, A.R. handed out marijuana to Martinez

  and his friends and then had sex with him. He testified that he

  spent between forty and fifty-five minutes conversing with A.R.

  before they had sex. He said that A.R. “looked fine,” “was

  coherent,” “was walking fine,” and that nothing about her

  appearance made him believe that she was too drunk to know what

  she was doing.

¶ 18   The cab driver who drove A.R. home from the light-rail station

  testified that, while A.R. would “maybe fail a breathalyzer,” “she was

  functioning just fine,” did not have any issues entering or exiting

  the cab, did not have any problems communicating her address, did

  not “pass out,” and did not vomit.

¶ 19   An expert in “forensic psychology related to alcohol, blackouts,

  and memory impairment” (the psychology expert) also testified for

  Martinez. The psychology expert opined that people can engage in

  complex activities during blackouts and that blackouts can, but do


                                    7
  not always, cause “substantial impairments due to the alcohol.”

  The expert further explained that people who experience blackouts

  often try to fill in the gaps in their memory by creating false

  memories that align with their assumptions and expectations of

  themselves.

¶ 20   During closing argument, the prosecutor did not mention the

  impact of the alleged sexual assault on A.R. Rather, the prosecutor

  focused on two points. First, she argued that Martinez had tailored

  his testimony about A.R.’s missing marijuana to fit the evidence he

  had heard while attending the trial. Second, she asserted that,

  regardless of the competing expert testimony and A.R.’s lack of

  memory of the incident, the video-recordings from the light-rail

  stations conclusively proved that, on the night of the incident, A.R.

  exhibited outward signs of impairment that showed her incapacity

  to appraise the nature of her conduct.

¶ 21   The jury found Martinez guilty of sexual assault on a victim

  incapable of appraising the nature of her conduct. The district

  court sentenced Martinez to an indeterminate sentence pursuant to

  the Colorado Sex Offender Lifetime Supervision Act of 1998

  (SOLSA). §§ 18-1.3-1001 to -1012, C.R.S. 2019.


                                     8
                               II.   Analysis

¶ 22   Martinez presents four principal arguments on appeal. He

  contends that the district court erred by

       (1)    admitting irrelevant and highly prejudicial victim impact

              evidence regarding A.R.’s depression and close suicidal

              scare, and failing to grant his motion for a mistrial after

              the jury heard the evidence;

       (2)    allowing the prosecutor to present a generic tailoring

              argument during closing argument;

       (3)    admitting opinion testimony from the detective even

              though he had neither been designated nor qualified as

              an expert witness; and

       (4)    providing a revised theory of defense instruction over the

              objection of Martinez’s counsel.

¶ 23   Martinez further asserts that, even if these errors do not

  independently require reversal, their cumulative effect requires it.

  Finally, Martinez advances a facial challenge to the constitutionality

  of SOLSA.




                                       9
                       A.        Victim Impact Evidence

¶ 24    We agree with Martinez’s contention that the district court

  erred by admitting evidence regarding A.R.’s depression and “close

  suicidal scare” following the incident. However, we find that the

  error was harmless and, thus, the court did not abuse its discretion

  in denying Martinez’s motion for a mistrial.

                            1.     Standard of Review

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

  rulings, People v. Stewart, 

, 122 (Colo. 2002), as well as

  its denial of a motion for mistrial, People v. Santana, 

,

  1130 (Colo. 2011). “A trial court abuses its discretion when its

  ruling is manifestly arbitrary, unreasonable, or unfair, or when it

  misapplies the law.” People v. Williams, 

, ¶ 21, 

, 950.

       2.   The Nonconstitutional Harmless Error Standard Applies

¶ 26    The parties disagree on the appropriate standard for our

  review of the district court’s admission of the victim impact

  evidence. Martinez contends that the constitutional harmless error

  standard applies because the admission of the evidence violated his

  rights to due process and a fair trial. In contrast, the People assert


                                        10
  that we review for nonconstitutional harmless error because any

  error was evidentiary and not of a constitutional magnitude.

¶ 27   We agree with the People and hold that the nonconstitutional

  harmless error standard applies to the district court’s evidentiary

  rulings. Pernell v. People, 

, ¶ 22, 

, 673;

  see State v. Maske, 

, 528 (N.C. 2004) (reviewing the

  admission of victim impact evidence for nonconstitutional harmless

  error); Justice v. State, 

, 1011 (Wyo. 1989) (same); see

  also People v. Flockhart, 

, ¶ 20, 

, 233

  (“Only those errors ‘that specifically and directly offend a

  defendant’s constitutional rights are “constitutional” in nature.’”

  (quoting Wend v. People, 

, 1097 (Colo. 2010))).

¶ 28   Under the nonconstitutional harmless error standard,

  “reversal is warranted if the error affects the substantial rights of

  the parties, meaning ‘the error substantially influenced the verdict

  or affected the fairness of the trial proceedings.’” Zapata v. People,

  

, ¶ 61, 

, 530 (quoting Hagos v. People,

  

, ¶ 12, 

, 119). Thus, “[i]f we 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


                                     11
  the trial, the error is harmless.”

P.3d at 530; see

  Pernell, ¶ 

(“[A]n objected-to trial error is

  harmless if there is no reasonable possibility that it contributed to

  the defendant’s conviction.”).

                           3.      Legal Authority

¶ 29   Victim impact evidence is evidence that relates to “the victim’s

  personal characteristics and to the physical, emotional, or social

  impact of a crime on its victim and the victim’s family.”

  Schreibvogel v. State, 

, 883 (Wyo. 2010) (quoting Smith

  v. State, 

, 416 (Wyo. 2005)); see State v. Graham, 

, 645 (N.C. Ct. App. 2007) (explaining that victim impact

  evidence includes the physical, psychological, emotional, and

  economic toll a crime takes on the victim and the victim’s family).

¶ 30   The United States Supreme Court decided more than three

  decades ago that victim impact evidence is inadmissible because it

  may be “wholly unrelated to the blameworthiness of a particular

  defendant” and “could divert the jury's attention away from the

  defendant’s background and record, and the circumstances of the

  crime.” Booth v. Maryland, 

, 504, 505 (1987),

  overruled by Payne v. Tennessee, 

(1991).


                                      12
¶ 31   But after a change in the composition of the Court, it reversed

  course and held that, during the sentencing phase of a death

  penalty trial, a prosecutor may present evidence of the impact of the

  murder. 

(holding that victim impact

  evidence is admissible to remind the jury that “the victim is an

  individual whose death represents a unique loss to society and in

  particular to his family” (quoting 

) (White, J.,

  dissenting)). The Colorado Supreme Court has cited Payne

  approvingly. See People v. Dunlap, 

, 744 n.14 (Colo.

  1999) (holding that “evidence about the victim and about the impact

  of the murder on the victim’s family is relevant to the jury’s decision

  as to whether or not the death penalty should be imposed” (quoting

  

)).

¶ 32   No Colorado case has addressed the admissibility of victim

  impact evidence during the guilt/innocence phase of a criminal

  trial. But we need not decide today whether victim impact evidence

  is ever admissible during the guilt/innocence phase of a criminal

  case because we hold that, in this case, the victim impact evidence

  was irrelevant and, thus, inadmissible.




                                    13
¶ 33   Because “the effect of a crime on a [victim or the] victim’s

  family often has no tendency to prove whether a particular

  defendant committed a particular criminal act against a particular

  victim,” such evidence is generally irrelevant during the

  guilt/innocence phase of a trial. 

.

  Thus, the admissibility of victim impact evidence during the

  guilt/innocence phase of a trial turns on whether the evidence is

  relevant to determining whether the defendant committed the crime

  for which he or she was charged. See id.; 

; see also CRE 402 (irrelevant evidence is inadmissible); People

  v. Clark, 

, ¶ 17, 

, 204 (“In criminal cases,

  evidence is relevant if the evidence makes it more or less probable

  that a criminal act occurred, the defendant was the perpetrator, or

  the defendant acted with the necessary criminal intent.”).

¶ 34   Thus, victim impact evidence is admissible only if it “tends to

  show the context or circumstances of the crime itself.” 

. In Graham, a first degree burglary and assault

  case, the appellate court considered whether the trial court had

  erred in admitting, during the guilt/innocence phase of the trial,

  evidence of the impact of the crimes on the mental health of the


                                    14
  victim’s mother. The Graham court concluded that admission of

  the evidence was error, albeit harmless error, because the evidence

  did not “have any tendency to prove that defendant was the

  intruder . . . .”

     The District Court Erred by Admitting the Victim Impact
                                      Evidence

¶ 35    After the prosecutor asked A.R. “how things have been

  different for you since the night of the [sexual assault],” A.R.

  testified,

                Immediately following, I missed out on a lot of
                work. I loved my job, but I ended up — there
                were mornings where I couldn’t get out of bed.
                I couldn’t move. I was in physical pain.

                I ended up no-calling/no-showing to my job
                three times in a row, so I was fired. My boss
                sent a police officer to my house because she
                was afraid I had killed myself.

                I spent the next six months just circling the
                drain for a long time. It wasn’t that I wanted
                to kill myself; it was that I just wanted to turn
                off. I wished there was a switch where I didn’t
                have to feel or think or be conscious.

                I had class two days a week, and school’s kind
                of always been my safe place, a place where I
                really excel. The other five days a week I spent
                either sleeping too much, not sleeping at all,
                eating too much, not eating at all. I was very,
                very, very depressed, to say the least.


                                       15
            That following March . . . I did have a close
            suicidal scare.

¶ 36   The prosecutor elicited similar testimony from A.R.’s mother:

            [PROSECUTOR:] Now, I want to talk to you a
            little bit about [A.R.’s] behavior after the
            assault. Did you notice anything different
            after the assault about her behavior?

            [MOTHER:] She hibernated afterwards. She
            went into her room and didn’t come out for an
            extended period of time. She would come out,
            go right back.

            [PROSECUTOR:] Was this different than how
            she behaved before?

            [MOTHER:] Yes.

            [PROSECUTOR:] Did you notice any signs of
            depression?

            [MOTHER:] Yeah. She quit going to work.
            She quit hanging out with friends, taking her
            dog on a walk. She just — she just closed
            herself into the basement bedroom and
            bathroom and made herself have a very small
            world.

¶ 37   Martinez contends that this testimony was irrelevant because

  it had no tendency to prove the contested issue at trial: whether he

  “[knew] that [A.R. was] incapable of appraising the nature of [her]

  conduct.” § 18-3-402(1)(b). Moreover, according to Martinez, the




                                   16
  evidence was highly prejudicial because it came from two witnesses

  and likely elicited the jury’s sympathy for A.R.

¶ 38   In response, the People assert that the testimony did not

  constitute victim impact evidence and, in any event, was relevant

  because it showed “A.R.’s behaviors in the aftermath of her rape to

  show her lack of recall of the events that occurred on the night of

  the rape to counter [Martinez’s] claim that A.R. was cognizant of her

  actions and consented to sex with him.” Thus, according to the

  People, A.R.’s and her mother’s testimony was necessary “to show

  that A.R. was so heavily intoxicated that she was incapable of

  apprising the nature of her conduct, and, thus, she could not and

  did not consent to have sex with [Martinez].”

¶ 39   As an initial matter, we hold that the testimony constituted

  victim impact evidence because it described the “physical [and]

  emotional” toll that the alleged sexual assault took on A.R. See

  

(quoting 

).

¶ 40   We agree with Martinez that A.R.’s and her mother’s testimony

  was irrelevant. The prosecutor did not establish at trial how A.R.’s

  depression and “close suicidal scare” following the sexual assault

  were relevant to any material fact. Specifically, the prosecutor did


                                    17
  not show that the victim impact evidence made any material fact or

  element of the offense more or less probable. For example, the

  evidence did not shed light on why the victim could not remember

  anything between 9:00 p.m., when she was still at the bar, and

  when she found herself lying on the ground at a light-rail station

  hours later. And it did not tend to prove that Martinez possessed or

  lacked the criminal intent to be found guilty of sexual assault. See

  § 18-3-402(1)(b); see also 

(“[The victims’]

  discussion of the impact of the crime upon them could not in any

  way serve to establish any of the elements of the crime . . . .”).

¶ 41        For these reasons, the district court erred by admitting A.R.’s

  victim impact evidence.

       5.      The District Court’s Error in Admitting the Victim Impact
                               Evidence Was Harmless

¶ 42        Although the district court erred in admitting the victim

  impact evidence, we hold that the error was harmless because, “in

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

  influence the verdict or impair the fairness of the trial.” Zapata,

  ¶ 

.




                                        18
¶ 43   The victim impact evidence constituted a minor portion of

  Martinez’s trial. See People v. Whitman, 

, 385 (Colo.

  App. 2007). The prosecutor asked A.R. and her mother a total of

  four questions regarding A.R.’s behavior following the sexual

  assault. This questioning constituted, at most, a few minutes of

  Martinez’s three-day trial. Moreover, the prosecutor did not refer to

  or repeat this testimony at any other point of the trial, including

  during her opening statement and closing argument. Thus, the

  prosecutor did not unduly highlight the victim impact evidence or

  direct the jury to convict Martinez because of it.

¶ 44   The district court also blunted the prejudicial force of the

  victim impact evidence by permitting Martinez’s counsel to inquire

  into A.R.’s mental health history on cross-examination. In doing so,

  Martinez’s counsel established that A.R. had a history of depression

  and alcohol use, thereby showing that her “close suicidal scare”

  could have been caused by factors other than the alleged sexual

  assault. Further, absent evidence to the contrary, we assume the

  jury heeded the court’s instruction not to be influenced by

  sympathy, bias, or prejudice in reaching its decision. See People v.

  Villa, 

, 352 (Colo. App. 2009).


                                    19
¶ 45   Most significantly, the evidence of Martinez’s guilt was

  overwhelming. The prosecutor’s closing argument focused on

  Martinez’s lack of credibility and A.R.’s obvious impairment in the

  video-recordings from the light-rail stations. Indeed, after

  discussing the video-recordings, the prosecutor stated,

            There’s nothing vague or speculative or
            imaginary about what you just saw. It is real.
            And we could have gone through this trial and
            never presented [the toxicology expert] to you,
            and you would have had enough evidence just
            based on this video about [A.R.’s] level of
            intoxication at the time that she encountered
            [Martinez] and about her ability to consent.

¶ 46   Thus, contrary to Martinez’s characterization of the evidence,

  this was not a he said/she said case that rested solely on two

  individuals’ conflicting accounts. While Martinez’s counsel

  challenged A.R.’s credibility, the prosecutor’s case did not rest on

  whether the jury thought A.R. was believable. A.R. said she could

  not recall her encounter with Martinez.

¶ 47   Rather, the prosecutor’s key evidence was the video-recordings

  showing A.R. at the various light-rail stations following the incident.

  Even setting aside the evidence of A.R.’s blood alcohol level at the

  time of the incident, the video-recordings provided objective



                                    20
  evidence that could not be squared with Martinez’s testimony that

  nothing about A.R. had caused him to believe she was too

  intoxicated to consent to sex.

¶ 48   The video-recordings establish that A.R. was highly intoxicated

  while at the light-rail stations. The videos depict an individual who

  could not walk without stumbling, dropped to the ground for

  approximately four minutes before pulling herself onto a bench,

  tumbled while crossing light-rail tracks, fell asleep at two light-rail

  stations — once on a bench and once while propped up against a

  signpost, missed trains she needed to take to return home, and had

  to be awakened by an RTD officer so she could board one of the last

  trains leaving the station for the night. This evidence directly bore

  on Martinez’s credibility because it allowed the jury to infer that

  A.R. was highly intoxicated — and exhibited outward signs of

  impairment — during her encounter with Martinez. See People v.

  Bertrand, 

, ¶ 9, 

, 584 (“The law makes

  no distinction between direct and circumstantial evidence.”).

¶ 49   In sum, although the district court erred by admitting A.R.’s

  victim impact evidence, the error was harmless in light of the

  overwhelming evidence of Martinez’s guilt. “[T]here is no reasonable


                                     21
  possibility that [the victim impact evidence] contributed to [his]

  conviction.” Pernell, ¶ 

.

¶ 50   And because Martinez has failed to show that he was

  substantially prejudiced by the admission of the victim impact

  evidence, the district court did not abuse its discretion in denying

  his motion for a mistrial. See People v. Ned, 

, 275

  (Colo. App. 1996) (holding that a defendant must show actual

  prejudice to warrant reversal of a trial court’s denial of a motion for

  mistrial).

       B.      The Prosecutor’s Comments on Martinez’s Credibility

¶ 51   Martinez asserts that reversal is required because the district

  court permitted the prosecutor to present a generic tailoring

  argument during closing, which “create[d] an unjustifiable inference

  of guilt” based solely upon Martinez’s presence at trial. We

  disagree.

                          1.   Standard of Review

¶ 52   We review claims of prosecutorial misconduct under a

  two-step analysis. 

. “First, [we] must

  determine whether the prosecutor’s questionable conduct was

  improper based on the totality of the circumstances and, second,


                                    22
  whether such actions warrant reversal according to the proper

  standard of review.”

   Preservation

¶ 53   The parties disagree whether Martinez preserved this issue for

  appeal. Martinez contends that he preserved the issue through his

  counsel’s objection that the prosecutor had engaged in burden-

  shifting, thereby “alert[ing] the trial court to the potential

  impropriety of the prosecutor’s closing argument.” Martinez v.

  People, 

, 140 (Colo. 2010). In response, the People

  assert that Martinez failed to preserve the issue because his counsel

  objected “on grounds different from those raised on appeal.” People

  v. Ujaama, 

, ¶ 37, 

, 304.

¶ 54   Because we conclude that the prosecutor did not engage in

  misconduct, we need not resolve this dispute. See Hagos, ¶ 

(explaining that preservation affects the standard of

  review that we employ “to determine whether an error in criminal

  proceedings necessitates reversal of the judgment of conviction”).

                             3.    Legal Authority

¶ 55   A prosecutor may attack a defendant’s credibility during

  closing argument as long as the attack is based on the evidence in


                                      23
  the record or a reasonable inference from that evidence. See

  

; People v. Walters, 

, 334

  (Colo. App. 2006) (“[A] prosecutor has wide latitude and may refer to

  the strength and significance of the evidence, conflicting evidence,

  and reasonable inferences that may be drawn from the evidence.”).

  The prosecutor may do so through a “tailoring argument,” in which

  the prosecutor asserts that, by virtue of the defendant’s presence at

  trial, the defendant “tailor[ed] his testimony to fit that of other

  witnesses.” 

.

¶ 56   While a prosecutor may not make generic tailoring arguments,

  the prosecutor may make specific tailoring arguments.

occur when the prosecution attacks the

  defendant’s credibility by simply drawing the jury’s attention to the

  defendant’s presence at trial and his resultant opportunity to tailor

  his testimony.”

improper because “they

  are not based on reasonable inferences from evidence in the

  record,” and they imply that the defendant is less believable

  because he or she exercised the right of confrontation and upheld

  his or her statutory duty to be present at trial. Id.; see People v.

  Knapp, 

, ¶¶ 58-59, ___ P.3d ___, ___ (deciding that


                                     24
  the prosecutor made an improper generic tailoring argument by

  telling the jury that the defendant “got to sit and listen to the

  evidence, and then testify, based upon the evidence heard in

  court”); see also Crim. P. 43(a).

¶ 57   In contrast, a specific tailoring argument is “tied to evidence in

  the record. In such circumstances, it is reasonable for the jury to

  draw inferences regarding the credibility of the defendant.”

  

; see State v. Weatherspoon, 

, 221 (Conn. 2019) (holding that prosecutor’s reference to

  conflicting versions of events offered by sexual assault victim and

  by defendant, followed by suggestion that defendant’s version was

  fabricated, constituted specific tailoring because the argument was

  “tied to evidence that supported such an inference”).

  4.    The Prosecutor Did Not Present a Generic Tailoring Argument

¶ 58   During closing argument, the prosecutor argued,

             the defendant also wants you to believe that
             when the true target of [A.R.’s] affection . . .
             rebuffed her advances twice, that she was
             completely unfazed. This drunken girl didn’t
             think a thing of it, and instead what she
             started doing was passing out her weed,
             passing out her weed like candy to every
             person who was standing there, not to smoke



                                      25
            it; that might make a little bit of sense. But
            nobody smoked.

            [Martinez] can’t tell you that, because there’s
            no evidence that there is marijuana in [A.R.’s]
            urine results. And so, instead, he tells you
            this unrealistic story that she just, out of the
            kindness of her heart, decides to pass out her
            weed to everybody. Well, why? Why does he
            have to tell you that story? Well, because
            that’s the thing that she’s missing.

            Because, otherwise, how does he explain the
            one thing that’s missing from her stuff, right?
            Unless he’s gone through it. That’s the
            alternative. So instead, she just passed it out
            like candy, and that’s the explanation for why
            she no longer has that or her pipe at the end of
            the event.

¶ 59   We disagree with Martinez’s assertion that the prosecutor’s

  comments constituted a generic tailoring argument. Although the

  prosecutor argued that Martinez tailored his testimony to fit other

  witnesses’ testimony, the prosecutor tied her argument to evidence

  in the record. 

. She specifically

  referenced Martinez’s testimony concerning A.R.’s missing

  marijuana and pipe and asked the jury to infer that Martinez’s

  account lacked credibility. This was a proper specific tailoring

  argument. See id.; People v. Constant, 

, 845-46 (Colo.

  1982) (“Counsel can with propriety comment on how well and in


                                   26
  what manner a witness measures up to the tests of credibility set

  forth in the [jury] instruction.”); 

  (providing example of specific tailoring). Thus, the district court did

  not err by permitting the prosecutor to present a tailoring

  argument.

                     C.        The Detective’s Testimony

¶ 60   Martinez contends that the district court plainly erred by

  permitting the prosecutor to elicit expert testimony from the

  detective without designating or qualifying the detective as an

  expert witness. We conclude that the detective’s testimony was

  improper, but, given the detective’s qualifications and the

  unsurprising nature of his testimony, we hold that the admission of

  the testimony did not constitute plain error.

                          1.      Standard of Review

¶ 61   We review a trial court’s evidentiary rulings, including the

  admission of expert testimony, for an abuse of discretion.

  Venalonzo v. People, 

, ¶¶ 15, 24, 

, 873, 875.

  “A trial court abuses its discretion when its ruling is manifestly

  arbitrary, unreasonable, or unfair, or when it misapplies the law.”

  Williams, ¶ 

.


                                       27
¶ 62   Unless the error was structural (which Martinez does not

  argue here), we review errors that were not preserved by timely

  objection for plain error. Hagos, ¶ 

. Plain error

  is “obvious and substantial.”

plain error

  review only if the error ‘so undermined the fundamental fairness of

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

  judgment of conviction.’”

Miller, 

,

  750 (Colo. 2005)).

                            2.   Legal Authority

¶ 63   A trial court abuses its discretion by admitting expert

  testimony under the guise of lay opinion. 

  (“[W]here . . . an officer’s testimony is based not only on [his]

  perceptions and observations of the crime scene, but also on [his]

  specialized training or education, []he must be properly qualified as

  an expert before offering testimony that amounts to expert

  testimony.”). “[S]uch a substitution subverts the disclosure and

  discovery requirements of [the rules of criminal procedure] and the

  reliability requirements for expert testimony.”

(quoting

  United States v. Peoples, 

, 641 (8th Cir. 2001)); see

  Crim. P. 16(I)(a)(1)(III) (providing that “[t]he prosecuting attorney


                                      28
  shall make available to the defense . . . [a]ny reports or statements

  of experts made in connection with the particular case”).

¶ 64   In Venalonzo, the supreme court discussed the distinction

  between lay and expert testimony, explaining that

            [t]ogether, CRE 701 and 702 distinguish lay
            testimony from expert testimony. CRE 701
            defines the scope of lay witness opinion
            testimony. It provides that lay witness
            testimony in the form of opinions or inferences
            must be “(a) rationally based on the perception
            of the witness, (b) helpful to a clear
            understanding of the witness’[s] testimony or
            the determination of a fact in issue, and (c) not
            based on scientific, technical, or other
            specialized knowledge within the scope of
            [CRE] 702.” CRE 702, on the other hand,
            concerns the admissibility of expert testimony.
            Under this rule, “[i]f scientific, technical, or
            other specialized knowledge will assist the trier
            of fact to understand the evidence or to
            determine a fact in issue, a witness qualified
            as an expert by knowledge, skill, experience,
            training, or education, may testify thereto in
            the form of an opinion or otherwise.”

  ¶ 

(citation omitted); see CRE 701 & 702.

¶ 65   The Venalonzo court held that, “in determining whether

  testimony is lay testimony under CRE 701 or expert testimony

  under CRE 702, the trial court must look to the basis for the

  opinion.” Venalonzo, ¶ 

. A witness offers lay



                                    29
  testimony if the testimony “could be expected to be based on an

  ordinary person’s experiences or knowledge,” while a witness offers

  expert testimony if the testimony “could not be offered without

  specialized experiences, knowledge, or training.”

on the facts and surrounding circumstances of the case

  and ‘requires a case-by-case analysis of both the witness and the

  witness’s opinion.’” Id. at ¶ 

(quoting United

  States v. Smith, 

, 982-83 (8th Cir. 2010)).

   3.       The District Court Erred by Allowing the Detective to Present
                                  Expert Testimony

¶ 66    Martinez’s counsel filed a pretrial motion requesting the

  disclosure of the prosecution’s expert witnesses under Rule

  16(I)(a)(1)(III). The prosecutor did not endorse the detective as an

  expert witness.

¶ 67    The detective began his testimony by summarizing his

  background, training, and experience, stating that he

        •       “went through a six-month police academy”;

        •       “worked in the patrol division . . . for approximately seven

                years”;




                                       30
       •    contacted “hundreds” of intoxicated people while

            working;

       •    received on-the-job training and “continuing education”

            classes;

       •    had worked as a sex crimes detective for over four years;

       •    took part in “special training” to learn how to investigate

            sexual assaults; and

       •    had investigated “close to 500” sex assault cases in his

            career.

  Despite this testimony regarding the detective’s background,

  training, and experience, the prosecutor did not seek to qualify him

  as an expert witness.

¶ 68   After testifying about his investigation of A.R.’s case, the

  detective responded to a question about A.R.’s demeanor: “she went

  through different phases, like most people do . . . .” He added that,

  based on his interviews of “a fair number of victims,” A.R.’s

  response was not “surprising.”

¶ 69   The following exchange occurred later during the detective’s

  examination:




                                    31
            [PROSECUTOR:] Now, you said earlier you’ve
            been involved in about 500 sex assault
            investigations. In your training and
            experience, is it usual for a victim of a sex
            assault to not have significant physical
            injuries?

            [DETECTIVE:] No. Again, much like
            reactions, depending on the circumstances of
            the sexual assault, we don’t expect to see,
            necessarily, injuries, unless there’s an
            indication that there was some sort of physical
            attack, as well.

            Again, depending upon the circumstances . . .
            when we talk about things like what would
            commonly be referred to as “date rape” or
            situations like that, or circumstances in which
            people are what’s labeled “victim incapable”
            . . . where they’re inebriated or drugged or
            something to that effect, you’re not necessarily
            going to see an injury. There’s no expectation
            for that one way or the other.

            [PROSECUTOR:] Okay. And specifically on
            those “victim incapable” cases you talked
            about, where the victim was too intoxicated, is
            it your experience that there would be little or
            no injury?

            [DETECTIVE:] Generally speaking, there
            wouldn’t be, because they’re not in a position
            to offer any kind of physical resistance.

¶ 70   We conclude that the detective’s opinions amounted to

  impermissible expert testimony because such testimony “could not

  be offered without specialized experiences, knowledge, or training.”


                                   32

P.3d at 875. An “ordinary person” does not possess

  the requisite “experiences or knowledge” to testify about the type or

  extent of injuries resulting from a sexual assault or the victim’s

  demeanor during a police interview following a sexual assault. See,

  e.g., State v. Fortin, 

, 757 (N.J. 2007) (“We do not

  presume that the ordinary juror would have knowledge of the

  typical injuries inflicted during a . . . sexual assault.”); see also

  People v. Rincon, 

, 983 (Colo. App. 2005) (holding that

  an officer may testify as a lay witness about topics that may be

  resolved by “simple common sense and logic”). Rather, a person

  could be expected to possess this information only if he or she had

  been specially trained or otherwise had experience with sexual

  assaults; under these circumstances, “common sense and logic” do

  not provide answers to the prosecutor’s questions.

¶ 71   Indeed, immediately before the detective testified about these

  topics, the prosecutor emphasized the detective’s specialized

  training and experience. The detective then compared his

  observations regarding A.R.’s case to his experience with the

  hundreds of other sexual assault cases he had investigated. See

  People v. Glasser, 

, 78 (Colo. App. 2011) (“[E]xperts may


                                      33
  testify concerning whether a victim’s behavior or demeanor is

  consistent with the typical behavior of victims of abuse.”). Given

  that the detective could have gathered the information supporting

  his testimony only through his “specialized experiences, knowledge,

  [and] training,” he offered expert testimony. Venalonzo, ¶ 

. And because the prosecutor failed to endorse the

  detective as an expert witness, the detective’s testimony was

  improper. See Crim. P. 16(I)(d); 

.

¶ 72    Thus, the district court abused its discretion by permitting the

  detective to testify about the injuries and demeanor that victims of

  sexual assault typically display. See Williams, ¶ 

(“A trial court abuses its discretion . . . when it misapplies the

  law.”).

  4.    The Admission of the Detective’s Testimony Did Not Constitute
                                 Plain Error

¶ 73    We review Martinez’s challenge to the detective’s testimony

  under the plain error standard because Martinez’s counsel did not

  make a contemporaneous objection to the testimony. See Hagos,

  ¶ 

. In determining whether the admission of the

  detective’s opinion testimony resulted in plain error, we consider



                                    34
  whether the detective was qualified to offer those opinions based on

  his training and experience. See People v. Conyac, 

,

  ¶ 67, 

, 1021; People v. Malloy, 

,

  1288-89 (Colo. App. 2008); see also People v. Lomanaco, 

, 1145 (Colo. App. 1990) (holding that there was no plain error

  in the admission of unendorsed expert testimony when the witness

  was qualified to provide that testimony).

¶ 74   We discern no plain error for three reasons. First, the

  detective was qualified to provide the opinions. Through his

  investigations of “close to 500” sexual assault cases over more than

  four years, the detective undoubtedly gained the experience

  necessary to testify about the typical injuries of victims of sexual

  assault, as well as sexual assault victims’ behavior and demeanor

  during police interviews.

¶ 75   Second, the failure of Martinez’s counsel to object to the

  detective’s testimony or request a continuance after the jury heard

  it “belies any claim that he was surprised or prejudiced by [such]

  testimony.” People v. Brown, 

, 617 (Colo. App. 2011).

¶ 76   Third, as discussed in detail above, the evidence against

  Martinez was overwhelming. 

Part II.A.5; see also Miller,


                                    

(holding that a trial court’s error “does not

  normally constitute plain error . . . where the record contains

  overwhelming evidence of the defendant’s guilt”).

¶ 77   We therefore conclude that there was no plain error because

  the district court’s failure to sua sponte exclude the detective’s

  expert testimony did not “undermine[] the fundamental fairness of

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

  judgment of conviction.” Hagos, ¶ 

(quoting

  

).

              D.    Martinez’s Theory of Defense Instruction

¶ 78   Martinez asserts that the district court erred by refusing to

  give the jury his tendered theory of defense instruction. We discern

  no error.

                         1.    Standard of Review

¶ 79   We review a trial court’s decision to modify a tendered theory

  of defense instruction for an abuse of discretion. People v. Bruno,

  

, ¶ 18, 

, 591; see People v. Lee, 

, 689 (Colo. App. 2000) (“The trial court has substantial

  discretion in the drafting of a theory of defense instruction.”).




                                      36
¶ 80   In analyzing whether the trial court abused its discretion, we

  review the instructions as a whole to determine whether the jury

  was “adequately informed of the defendant’s theory of defense.”

  People v. Dore, 

, 1222 (Colo. App. 1999).

                           2.    Legal Authority

¶ 81   “[A]n instruction embodying a defendant’s theory of the case

  must be given by the trial court if the record contains any evidence

  to support the theory.” People v. Nunez, 

, 264 (Colo.

  1992). “A proper theory of the case instruction should explain a

  defendant’s view of what the evidence shows, must be general and

  brief, and must instruct the jury on the legal effect of the

  explanation.” People v. Meads, 

, 1138 (Colo. App.

  2002), aff’d, 

(Colo. 2003).

¶ 82   A trial court may refuse to give an instruction that is

  “argumentative, contains errors of law, merely reiterates portions of

  the evidence, or is encompassed within the other instructions.”

  

; see 

(“The trial court

  may reject a theory of the case instruction which tends to be

  argumentative or calls attention to specific evidence.”). If the trial

  court refuses to give an instruction, it “has an affirmative obligation


                                     37
  to cooperate with counsel to either correct the tendered theory of

  the case instruction or to incorporate the substance of such in an

  instruction drafted by the court.” 

.

       3.   The District Court Did Not Err by Modifying Martinez’s
                   Tendered Theory of Defense Instruction

¶ 83    Martinez’s counsel tendered the following theory of defense

  instruction:

             [o]n the evening of June 29, 2015 [Martinez]
             was hanging out, drinking alcohol and
             smoking marijuana in a park in lower
             downtown with a small group of friends. Later
             in the evening [A.R.] approached Mr. Martinez
             and his friends. [A.R.] first attempted to
             engage in a sexual relationship with Mr.
             Martinez’s friend J.K. After, she learned that
             he had a girlfriend and wasn’t interested in
             engaging in a sexual relationship with her she
             began speaking more exclusively with
             Mr. Martinez. After a period of time
             Mr. Martinez and [A.R.] agreed to separate
             from the group to engage in consensual sex.
             While Mr. Martinez observed some slight signs
             of impairment from [A.R.] there wasn’t
             anything about her words or physical
             demeanor to indicate to him that she was not
             fully aware of what she was saying a [sic]
             doing.

¶ 84    Noting that “theories of the case should not be argumentative,”

  the district court declined to give Martinez’s tendered instruction.

  Instead, over the objection of Martinez’s counsel, the court modified


                                    38
  the instruction to read, “[i]t is Mr. Martinez’s theory of the case that,

  although he observed signs of impairment from [A.R.], [A.R.]

  engaged in a consensual sexual relationship with him.”

¶ 85   The district court did not abuse its discretion by rejecting and

  modifying Martinez’s theory of defense instruction. As the court

  correctly noted, the final sentence in Martinez’s tendered

  instruction was argumentative. Additionally, the instruction was

  not “general and brief” and did not “instruct the jury on the legal

  effect of the explanation.” 

. Rather, by

  focusing solely on Martinez’s testimony, the instruction “merely

  reiterate[d] portions of the evidence” that were favorable to him.

  

; see 

. Martinez was

  not entitled to a theory of defense instruction that unduly

  emphasized his trial testimony that nothing about A.R.’s actions or

  demeanor indicated that she was not fully aware of her actions.

  See People v. Baird, 

, 194 (Colo. App. 2002) (“[A] trial

  court may refuse an instruction if it . . . unduly emphasizes

  particular evidence . . . .”).

¶ 86   The district court’s redrafted instruction was proper because it

  excised the problematic components of Martinez’s tendered


                                     39
  instruction while providing Martinez’s theory of defense that A.R.

  did not appear to be incapable of appraising the nature of her

  conduct when he and A.R. had sex. The court fulfilled its obligation

  under Nunez to include “the substance” of Martinez’s tendered

  instruction in the final jury instruction and, thus, did not err in

  doing 

.

                          E.   Cumulative Error

¶ 87   Martinez asserts that the trial court’s cumulative errors

  deprived him of a fair trial. We disagree.

¶ 88   The supreme court discussed the applicability of the

  cumulative error doctrine in Howard-Walker v. People, explaining

  that “[t]hough an error, when viewed in isolation, may be harmless

  or not affect the defendant’s substantial rights, reversal will

  nevertheless be required when ‘the cumulative effect of [multiple]

  errors and defects substantially affected the fairness of the trial

  proceedings and the integrity of the fact-finding process.’” 

, ¶ 24, 

, 1011 (quoting People v. Lucero, 

, 344, 

, 666 (1980)). The court added, “[f]or

  reversal to occur based on cumulative error, a reviewing court must

  identify multiple errors that collectively prejudice the substantial


                                    40
  rights of the defendant, even if any single error does not. Stated

  simply, cumulative error involves cumulative prejudice.” Id. at

  ¶ 

(citation omitted).

¶ 89   Here, although we identified two errors, there is no reversible

  cumulative error because those errors did not substantially

  prejudice Martinez’s right to a fair trial, as discussed above. 

Parts II.A.5, II.C.4. Even when we view the errors in

  combination, given the overwhelming evidence of guilt, we cannot

  conclude “that the cumulative effect of the errors substantially

  prejudiced [Martinez’s] right to a fair trial.” People v. Mendenhall,

  

, ¶ 82, 

, 775; see also Conyac, ¶ 

(“[A]lthough we have found some errors, because

  we do not perceive that they substantially prejudiced defendant’s

  right to a fair trial, there is no reversible cumulative error.”).

                      F.    SOLSA’s Constitutionality

¶ 90   In attacking the constitutionality of SOLSA, Martinez concedes

  two points: divisions of this court have rejected facial challenges to

  SOLSA’s constitutionality, see, e.g., People v. Lehmkuhl, 

, 108 (Colo. App. 2004), and he did not advance this argument

  before the district court. He nonetheless contends that SOLSA


                                      41
  violates separation of power principles and his right to due process,

  right of equal protection, right against cruel and unusual

  punishment, and right against self-incrimination. Martinez,

  however, fails to explain how SOLSA violates his constitutional

  rights and how the divisions that previously addressed this issue

  erred. We therefore decline to depart from the decisions affirming

  SOLSA’s constitutionality, see, e.g., People v. Sabell, 

,

  ¶ 47, 

, 100, and hold that the district court did not

  plainly err in sentencing Martinez under the mandates of SOLSA.

                            III.   Conclusion

¶ 91   Martinez’s judgment of conviction is affirmed.

       JUDGE NAVARRO and JUDGE TOW concur.




                                    42