People v. Thompson

COLORADO COURT OF APPEALS                                         2017COA56


Court of Appeals No. 09CA2784
Arapahoe County District Court No. 07CR1483
Honorable Valeria N. Spencer, Judge
Honorable William B. Sylvester, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Aaron Duane Thompson,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division III
                         Opinion by JUDGE BERNARD
             Webb, J., concurs in part and specially concurs in part
                Dunn, J., concurs in part and dissents in part

                            Announced May 4, 2017


Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Keyonyu X. O’Connell, Alternate Defense Counsel, Denver, Colorado; Lynn C.
Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    This appeal poses a question of first impression in Colorado:

 Do indigent defendants in criminal cases have (1) a constitutional

 right to be represented by private counsel who are willing to

 represent them without cost; and simultaneously (2) a

 constitutional right to receive state-funded ancillary services, such

 as investigators and experts? Defendant asserts that the trial court

 denied his Sixth Amendment right to the counsel of his choice when

 it decided that an attorney who offered to represent him without

 pay would not be entitled to receive state funds to obtain ancillary

 services. The court, instead, appointed the public defenders.

¶2    This question is hard enough to answer because it requires

 plotting the intersection of cases that discuss the right to counsel of

 choice with cases that discuss an indigent defendant’s right to

 obtain state-funded ancillary services. But the question becomes

 harder to answer because we must also consider whether a

 Colorado Supreme Court case that describes what happens at that

 intersection is contrary to cases that the United States Supreme

 Court has decided. And finding an answer becomes harder still

 because we must also evaluate what effect a Chief Justice Directive

 had on the intersection.


                                    1
¶3    It is a testament to the complexity of this question that the

 three judges who sat on this case found three different ways to

 answer it. Two of us answer the question differently, but we both

 believe that the answer leads us to affirm defendant’s conviction.

 The remaining judge provides a third answer, and she would

 reverse the conviction.

¶4    A grand jury indicted defendant, Aaron Duane Thompson, for

 numerous charges related to the disappearance and presumed

 death of his six-year-old daughter, A.T. The prosecution also

 charged defendant with multiple instances of having physically

 abused every other child who lived in his home.

¶5    At the end of his trial, the jury convicted him of most of the

 charges. He appeals. We affirm.

                            I.   Background

¶6    Defendant lived with: his girlfriend, Shely Lowe; her five

 children, K.S., T.L., A.L., E.W.J., and K.W.; his two children, A.T.J.

 and A.T.; and her half-brother, R.R. In November 2005, defendant

 called the police to report that A.T. had run away from home after

 an argument over a cookie. The police initiated an extensive search

 for A.T. that proved to be fruitless.


                                     2
¶7    During the investigation, officers spoke with Eric Williams, Sr.,

 Ms. Lowe’s ex-boyfriend and the father of two of her children. He

 told the police that, about a year before defendant had reported A.T.

 missing, Ms. Lowe told him that A.T. had suddenly died one evening

 in the bathtub. Ms. Lowe told Mr. Williams that she and defendant

 had buried the child “far away.”

¶8    The police also spoke with Ms. Lowe’s close friend, Tabitha

 Graves. Ms. Graves described a conversation with Ms. Lowe

 approximately one year before defendant reported A.T. missing in

 which Ms. Lowe said that she had found A.T. dead in the child’s bed

 one morning. Ms. Lowe explained that defendant had removed the

 child’s body from their home and that they were trying to concoct a

 plan to cover up A.T.’s death.

¶9    Officers then questioned the other children in the household.

 They initially told similar stories that went as follows: They had

 seen A.T. at home earlier on the day that she ran away. They

 parroted various details about A.T., including her favorite food, her

 favorite color, and her most recent Halloween costume.




                                    3
¶ 10   But the officers’ questioning turned up more than mundane

  details. For example, the children said that defendant and Ms.

  Lowe disciplined them with “whoopins.”

¶ 11   The officers contacted social services, and case workers placed

  the children with foster families. Once they were in different

  environments, the children gradually began to disclose details

  about physical abuse that they had endured. They explained that

  A.T. had not been in the home for some time before defendant

  reported her missing — evidence at trial indicated that the girl may

  have been gone for as long as two years — and that defendant and

  Ms. Lowe had told them to lie to the police about A.T.

¶ 12   A grand jury indicted defendant on sixty charges, including

  child abuse resulting in death, false reporting, abuse of a corpse,

  assault, contributing to the delinquency of a minor, child abuse,

  conspiracy, and accessory. (The grand jury did not indict Ms. Lowe

  because she had died of natural causes during the investigation.)

¶ 13   The trial jury convicted defendant of most of the charges,

  including child abuse resulting in death, child abuse, assault, false

  reporting, concealing the child’s death, contributing to the

  delinquency of a minor, and conspiracy.


                                    4
¶ 14    The trial court sentenced defendant to a twelve-year jail

  sentence, to be followed by 102 years in prison.

  II.   The Trial Court Did Not Violate Defendant’s Sixth Amendment
                       Right to Counsel of Choice

                            A.    Background

¶ 15    Shortly after the grand jury indicted him, defendant appeared

  before the trial court with an attorney, David Lane. Mr. Lane said

  that he had represented defendant for “about two years” as

  “retained counsel.” But defendant was indigent, and Mr. Lane

  thought that he would “qualify for court-appointed counsel.” Mr.

  Lane made clear that he was “willing to continue” to represent

  defendant as “retained counsel.” Although defendant wanted Mr.

  Lane “to represent him,” he could not pay for ancillary services,

  such as “an investigator” or “various experts in various fields.” Mr.

  Lane added that the Constitution obligated the trial court to provide

  such ancillary services to indigent defendants at state expense.

¶ 16    Mr. Lane asserted that defendant was being forced to choose

  between two constitutional rights: the right to counsel of choice and

  the right to receive ancillary services at state expense. He said that

  a Colorado Supreme Court case, People v. Cardenas, 

                                     5
  (Colo. 2002), had forced defendant into making this choice, and

  that this Colorado case clashed with a more recent United States

  Supreme Court case, United States v. Gonzalez-Lopez, 

  (2006). Mr. Lane then said that the court should allow him to

  continue to represent defendant and that it should also agree to pay

  state funds for any ancillary services that defendant might require.

¶ 17   The trial court declined Mr. Lane’s invitation to “overrule”

  Cardenas. Mr. Lane then said that defendant could not get a fair

  trial without ancillary services. So, he was therefore forced to “step

  aside” and to ask the court to appoint the public defenders to

  represent defendant. He registered defendant’s objection to his

  being forced to leave the case, citing the Sixth Amendment, the

  Fourteenth Amendment, and “analogous provisions of the Colorado

  Constitution.”

¶ 18   The trial court promptly appointed the public defenders as

  defendant’s attorneys, and Mr. Lane’s connection with this case

  ended.

                     B.    Defendant’s Contentions

¶ 19   Defendant contends that the trial court denied him his Sixth

  Amendment right to his counsel of choice. It did so when it decided


                                    6
  that it would not end-run Cardenas and authorize Mr. Lane, acting

  as defendant’s retained counsel, to receive state-funded ancillary

  services in the course of representing defendant.

¶ 20   As far as this issue is concerned, we find ourselves at an

  unusual divide for a three-judge panel. Judge Webb “take[s] no

  position” on the analysis that the reader is about to encounter, but

  he concurs with the decision to affirm defendant’s convictions.

  Judge Dunn dissents from this part of the opinion.

¶ 21   After examining the constitutional issues that were preserved

  in the trial court and have been addressed by defendant and the

  prosecution on appeal, I conclude that (1) the court did not abridge

  defendant’s constitutional right to counsel of choice; and (2) any

  error that the court may have committed was harmless when, in the

  absence of a request from Mr. Lane, it did not sua sponte apply a

  Chief Justice Directive that addressed when a court could provide

  state-funded ancillary services to indigent defendants who were

  represented by pro bono counsel.

                     C.   Right to Counsel of Choice

¶ 22   Defendant’s appellate contentions proceed in three steps.

  Although he cites a variety of authority in support of all three steps,


                                     7
  one or two United States Supreme Court cases form the foundation

  for each one.

¶ 23   The first step asserts that defendant had “a right to continued

  representation” by Mr. Lane. This step relies on cases such as

  

, and Caplin & Drysdale, Chartered

  v. United States, 

(1989).

¶ 24   The second step submits that the trial court violated this right

  when it declined to rule on Mr. Lane’s “request for ancillary

  services.” This step focuses on Ake v. Oklahoma, 

  (1985).

¶ 25   The third step claims that, by requiring defendant to be

  represented by the public defender in order to obtain those ancillary

  services, the trial court improperly placed defendant on the horns of

  a constitutional dilemma: It forced him to choose between his right

  to be represented by Mr. Lane, his counsel of choice, and his right

  to present his defense, via the ancillary services that Mr. Lane

  sought. This step is based on Simmons v. United States, 

(1968).

¶ 26   As I will explain below, these United States Supreme Court

  decisions do not support defendant’s three-step analysis. I instead


                                    8
  think that the Supreme Court has limited the constitutional right to

  counsel of choice and the constitutional right to obtain ancillary

  services at state expense in a way that knits those rights together:

  Indigent defendants do not have a constitutional right to use state

  funds to pay for attorneys or for ancillary services of their choosing.

¶ 27   Cardenas faithfully implemented this shared limitation by

  requiring that defendants who require state-funded ancillary

  services be represented by public defenders. Applying Cardenas, I

  conclude that defendant only had a right to state-funded ancillary

  services if the public defender or court-appointed alternate defense

  counsel represented him. I further conclude that the trial court did

  not wrongfully deny defendant’s constitutional right to counsel of

  choice when it declined Mr. Lane’s invitation to depart from

  Cardenas.

¶ 28   To be sure, Chief Justice Directive 04-04, Appointment of

  State-Funded Counsel in Criminal Cases and for Contempt of

  Court, § V(D) (amended Nov. 2014)(formerly § IV(D)), would have

  allowed the trial court to pay for support services for a defendant

  who is represented by private counsel. The trial court did not

  consider the Directive when it decided to appoint the public


                                     9
  defenders. And Mr. Lane did not ask the court to do so. Be that as

  it may, I conclude that any error that the court may have made

  when it did not consider the Directive was harmless.

¶ 29   I begin my analysis by explaining Cardenas.

                             1.    Cardenas

¶ 30   A pro bono attorney represented the indigent defendant in

  

. The attorney asked the trial court to

  appoint, at state expense, an interpreter to help her talk with the

  defendant, who did not speak English, in order to investigate the

  circumstances surrounding his guilty plea. 

declined.

¶ 31   Our supreme court upheld the trial court’s decision. The

  court first observed that, although “an indigent defendant has the

  right to legal representation and supporting services at state

  expense, he does not have the right to pick the attorney of his

  choice.” 

¶ 32   The court next concluded that, if the defendant had wanted

  “the state to pay the costs of his attorney and supporting services,

  his only choice is to be represented by the public defender, or in the

  case of a conflict, a state-appointed alternate defense counsel.” 

supported this conclusion by analyzing several statutes


                                    10
  governing the office of the state public defender. See 

  Its analysis yielded the conclusion that the legislature had

  established such a requirement. See 

  Last, the court observed that, although the defendant had the

  “right to be represented by” the pro bono attorney, “the state [was]

  not obliged to pay the costs of that representation.” 

¶ 34   I now turn to explaining why I think that the United States

  Supreme Court cases upon which defendant relies have expressed a

  shared limitation on the right to counsel of choice and on the right

  to ancillary services that supports — rather than undercuts —

  Cardenas. The first stop on that road is to discuss the right to

  counsel of choice.

              2.    Gonzalez-Lopez and Caplin & Drysdale

¶ 35   The right to counsel of one’s choice is “circumscribed in

  several important respects.” Wheat v. United States, 

,

  159 (1988). The “important respect[]” that circumscribes the right

  in this case is that “a defendant may not insist on representation by

  an attorney he cannot afford . . . .” 

words, “the right to

  counsel of choice does not extend to defendants who require

  counsel to be appointed for them.” 

  151; accord People v. Coria, 

, 389 (Colo. 1997)(An

  indigent defendant has a constitutional right to counsel in a

  criminal case, “but not an absolute right to demand a particular

  attorney.”).

¶ 36   But, once a court violates a defendant’s right to counsel of

  choice, that error is not subject to harmless error analysis.

  

, 152; accord Anaya v. People,

  

, 782-83 (Colo. 1988).

¶ 37   Turning to this case, it is true that the United States Supreme

  Court has, at least twice, said that “the Sixth Amendment

  guarantees a defendant the right to be represented by an otherwise

  qualified attorney whom that defendant can afford to hire, or who is

  willing to represent the defendant even though he is without funds.”

  

(quoting Caplin & 

).

¶ 38   But this truth is limited in a very important way. Neither

  Gonzalez-Lopez nor Caplin & Drysdale cited Ake, a case that I

  examine in more detail below. And neither case discussed whether

  an indigent defendant who had an attorney willing to represent him




                                    12
  at no cost also had the right to require the state to pay for ancillary

  services.

¶ 39   Caplin & Drysdale gives us a tantalizingly strong hint of how

  the Supreme Court would decide that issue: “Whatever the full

  extent of the Sixth Amendment’s protection of one’s right to retain

  counsel of his choosing, that protection does not go beyond ‘the

  individual’s right to spend his own money to obtain the advice and

  assistance of . . . 

(emphasis

  added)(quoting Walters v. Nat’l Ass’n of Radiation Survivors, 

, 370 (1985)(Stevens, J., dissenting)). Indeed, “[a]

  defendant has no Sixth Amendment right to spend another person’s

  money for services rendered by an attorney, even if those funds are

  the only way that that defendant will be able to retain the attorney

  of his choice.” 

¶ 40   I read this language from Caplin & Drysdale to mean that,

  although defendants’ Sixth Amendment right to counsel of choice

  includes attorneys who are willing to represent them even though

  the defendants lack funds, 

, the

  right does not extend to indigent defendants who require courts to

  spend public funds to pay for their ancillary services.


                                    13
¶ 41   The next stop in my reasoning is to discuss the right to

  ancillary services, which supports my reading of the language from

  Caplin & Drysdale.

                                 3.    Ake

¶ 42   Ake held that, if an indigent defendant “demonstrates . . . that

  his sanity at the time of the offense is to be a significant factor at

  trial,” then the state must, “at a minimum, assure the defendant

  access to a competent psychiatrist,” who could “conduct an

  appropriate examination and assist in evaluation, preparation, and

  presentation of the 

. The Supreme Court

  qualified this holding in two important ways.

¶ 43   First, it made clear that an indigent defendant did not have a

  constitutional right “to receive [state] funds to hire his own”

  psychiatrist. 

This qualification supports my

  reading of Caplin & Drysdale, and it therefore cuts defendant’s

  contention to the bone.

¶ 44   Second, it ceded “the decision on how to implement this right”

  to the states. 

is Colorado’s implementation of

  the right.




                                      14
¶ 45   Relying partly on Ake, our supreme court observed that the

  “Fourteenth Amendment . . . imposes upon the state the obligation

  to provide an indigent defendant with those basic instruments and

  services essential to his or her right to adequately defend against a

  criminal charge.” People v. Nord, 

, 315 (Colo. 1990).

¶ 46   I must now take a detour to explain why Simmons, the

  foundation for the third step in defendant’s contention, does not

  bear the weight that he puts on it.

                             4.    Simmons

¶ 47   Defendant relies on Simmons for the proposition that it is

  “intolerable that one constitutional right should have to be

  surrendered in order to assert 

. But

  Simmons, too, has been qualified.

¶ 48   First, the Simmons Court limited the scope of its decision by

  immediately preceding the language quoted above with the

  statement “[i]n these circumstances.” 

were

  as follows: The defendant in Simmons had to testify in support of

  his Fourth Amendment motion to suppress evidence to establish

  that he had standing, but the prosecution could then use this

  testimony against him in any subsequent trial. See 

                                    15
  Of course, this situation created a Sophie’s Choice: If the defendant

  did not want the prosecution to use his motions hearing testimony

  at trial, he would have to give up his Fourth Amendment right to

  challenge the search; if he wanted to establish that he had standing

  for purposes of his Fourth Amendment motion, he had to give up

  his Fifth Amendment right for the purposes of his trial. 

  393-94.

¶ 49   Second, the Supreme Court has not extended Simmons very

  far in criminal cases. See United States v. Kahan, 

,

  242-43 (1974)(Supreme Court reserved ruling on whether it should

  extend Simmons to Sixth Amendment claims for appointed counsel);

  United States v. Gravatt, 

, 590 n.9 (3d Cir.

  1989)(same); see also United States v. Snipes, 

, 866

  (11th Cir. 2010)(“Simmons has never been extended beyond its

  context.”); United States v. Taylor, 

, 404 (7th Cir.

  1992)(“Efforts to extend the scope of Simmons have not fared well.”);

  In re Fed. Grand Jury Procedures (FGJ 91-9), Cohen, 

,

  1493 (11th Cir. 1992)(“Given the narrow reading the Supreme

  Court has given” Simmons, “we decline to read Simmons” more

  broadly.).


                                    16
¶ 50   (Our supreme court has only relied on this part of Simmons —

  a separate part discusses photographic identification procedures —

  in cases involving the testimony of a defendant or of a defendant’s

  expert. See, e.g., Perez v. People, 

, 653 (Colo. 1987);

  People v. Chavez, 

, 1365 (Colo. 1981).)

¶ 51   Third, I submit that it is, at the very least, unclear whether

  Simmons is still viable in this regard, and, if so, how far its reach

  extends. Just three years after deciding Simmons, the Supreme

  Court explained in McGautha v. California, 

, 212-13

  (1971), vacated in part on other grounds sub nom. Crampton v. Ohio,

  

(1972), that, “to the extent that [Simmons’] rationale

  was based on a ‘tension’ between constitutional rights and the

  policies behind them, the validity of that reasoning must now be

  regarded as open to question . . . .” This rationale was “open to

  question” because “[t]he criminal process . . . is replete with

  situations requiring ‘the making of difficult judgments’ as to which

  course to follow.” 

(quoting McMann v. Richardson, 

, 769 (1970)).

¶ 52   Simply put, even if a defendant has a constitutional right “to

  follow whichever course he chooses, the Constitution does not by


                                     17
  that token always forbid requiring him to choose.” 

question is,” instead, “whether compelling the election

  impairs to an appreciable extent any of the policies behind the

  rights involved.” Id.; see also Corbitt v. New Jersey, 

,

  219 n.8 (1978)(citing McGautha with approval); Chaffin v.

  Stynchcombe, 

, 30 (1973)(The Constitution does not

  forbid “every government-imposed choice in the criminal process

  that has the effect of discouraging the exercise of constitutional

  rights.”).

¶ 53    Given all of this, “[a]lthough Simmons has not been overruled,

  the Supreme Court . . . questioned its logic” in McGautha. United

  States v. Rosalez, 

, 1214 n.6 (10th Cir. 2013). And

  more recent cases have recognized that defendants in criminal

  cases will sometimes have to make hard choices concerning

  constitutional rights.

¶ 54    But must I conclude that the premise underlying Simmons is

  unsound to conclude that Simmons does not apply this case? No,

  because the premise itself does not apply. It rested on the tension

  between the defendant’s Fourth and Fifth Amendment rights based

  on potentially incriminating uses of his suppression hearing


                                    18
  testimony at trial. See 

. By its own

  terms, Simmons limited its reach to “these circumstances.” 

This case pivots on the Sixth Amendment instead of on the

  Fourth and Fifth Amendments, and it does not involve a potentially

  prejudicial use of a defendant’s testimony.

¶ 55   Neither the United States Supreme Court nor our supreme

  court has subsequently stretched Simmons beyond those

  testimonial circumstances to situations such as those we face in

  this case. I would decline defendant’s invitation to do so. See

  

.

¶ 56   But, even if I were to think that Simmons applied to this case, I

  do not believe that defendant faced an “intolerable” choice of

  surrendering one constitutional right to assert another. See

  

. According to Ake, defendant did not

  have “a constitutional right . . . to receive funds to hire his own”

  

. So defendant was never faced with a

  choice between two constitutional rights. And, as McGautha made

  clear, “[t]he criminal process . . . is replete with situations requiring

  ‘the making of difficult judgments’ as to which course to follow,” so

  Simmons’ “rationale [that] was based on a ‘tension’ between


                                     19
  constitutional rights and the policies behind them . . . must now be

  regarded as open to question . . . .” 

.

¶ 57   Yes, defendant may have faced a choice between

  representation by Mr. Lane without any state-funded ancillary

  services and representation by the public defenders’ office with

  such services. But I do not think that choice was intolerable or

  unfair. See id.; see also 

. And the choice did

  not impair the policies behind defendant’s right to counsel of choice

  and his right to obtain ancillary services, see 

, because (1) he did not have a Sixth Amendment right to

  spend another person’s — or the state’s — money to obtain

  ancillary services, see Caplin & 

; and

  (2) he did not have “a constitutional right . . . to receive funds to

  hire his own [experts],” 

.

¶ 58   As I recognized above, the United States Supreme Court cases

  upon which defendant relies have not discussed the right to counsel

  of choice and the right to ancillary services together. But some

  other courts have done so. Let us take a look at them.




                                     20
                  5.      Cases From Other Jurisdictions

                 a.       Cases That Support My Analysis

¶ 59   Much like our supreme court in Cardenas, the Maryland

  Court of Appeals, that state’s highest court, held that the public

  defenders’ services, including access to ancillary services, were not

  severable. Indigent defendants were required to accept them as a

  “package” or forgo them completely. Moore v. State, 

,

  345-46 (Md. 2005). This arrangement did not violate the

  defendants’ constitutional rights to counsel or to obtain ancillary

  services. 

¶ 60   In an earlier case, applying similar reasoning, the Maryland

  Court of Appeals concluded that an indigent defendant who was

  represented by a pro bono attorney was not entitled to a transcript

  at state expense because the public defender had not represented

  him. State v. Miller, 

, 853 (Md. 1994).

¶ 61   In Miller v. Smith, 

, 1143-44 (4th Cir. 1997), the

  Fourth Circuit Court of Appeals held that Maryland’s requirement

  that a defendant accept the public defender’s representation in

  order to gain access to state-funded ancillary services had not




                                     21
  violated the defendant’s Sixth Amendment right to counsel of

  choice.

¶ 62   In State v. Earl, 

, 1155 (Utah 2015), an indigent

  defendant, who was represented by private counsel, filed a motion

  that asked the state to pay for ancillary services. The trial court

  refused, relying on Utah’s statutes governing publicly funded

  counsel for indigents. 

much like Colorado’s,

  “generally condition[ed] an indigent defendant’s eligibility for

  [ancillary services] on the retention of publicly funded counsel.” 

  On appeal, the defendant cited Ake and contended that her

  ability to obtain state-funded ancillary services should not be

  conditioned on a “public[ly] appointed lawyer.” 

The

  Utah Supreme Court disagreed.

             The constitutional right to counsel
             encompasses the prerogative of choosing
             counsel of one’s choice and of receiving
             resources necessary to an adequate defense.
             Such rights are qualified ones, however,
             affected by the “avenues which [the defendant]
             chose not to follow as well as those [she] now
             seeks to widen.” When a defendant elects an
             avenue that steers away from the public
             representation provided by the government,
             she has received the private counsel of her
             choice and has no constitutional right to



                                     22
             defense resources from a secondary source
             backed by government funding.

  

omitted). The court later added that

  “[a] defendant who opts out of public representation has also opted

  out of public defense resources, and nothing in the Constitution

  requires a different result.” 

¶ 64   I am persuaded by these cases because they incorporate the

  two qualifications that Ake placed on the right to obtain a

  state-funded psychiatrist. The courts in the Maryland and Utah

  cases specifically recognized these qualifications, and they relied on

  them in their opinions.

           In Moore, the Maryland Court of Appeals observed that,

             “while a State might provide funds enabling indigent

             defendants with retained counsel to hire experts of their

             own choosing, Ake does not require this approach.”

             

(emphasis added).

           The Utah Supreme Court noted that “[t]he United States

             Supreme Court . . . has not prescribed a single orthodoxy

             for the provision of the defense resources required by the

             Sixth Amendment.” 

. Utah’s



                                    23
              legislature, like Colorado’s, “has chosen to couple the

              availability of defense resources with the retention of

              government-funded counsel.” 

result, an

              indigent defendant in Utah, like an indigent defendant in

              Colorado, “has every right to decline the counsel the

              government offers in favor of the one she prefers, but in

              so doing, she loses the right to a publicly funded

              defense.” 

That Support Defendant’s Analysis

¶ 65   State v. Brown, 

, 759 (N.M. 2006), held that

  (1) “an indigent defendant represented by pro bono counsel[] is

  entitled both to the constitutional right to counsel and the

  constitutional right to be provided with the basic tools of an

  adequate defense”; and so (2) “indigent defendants represented by

  pro bono, contract, or [state public defender] counsel should have

  equal access to expert witness funding, provided that the expert

  witness meets all of the standards promulgated by” the state public

  defender.

¶ 66   The defendant in State v. Wang, 

, 226 (Conn.

  2014), represented himself. The Connecticut Supreme Court


                                     24
  concluded that “due process . . . requires the state to provide an

  indigent self-represented criminal defendant with expert or

  investigative assistance when he makes a threshold showing that

  such assistance is reasonably necessary for” his defense. 

  I am not persuaded by these two cases for a couple of reasons.

¶ 68   First, Brown did not discuss the two qualifications that Ake

  placed on the exercise of the right to state-funded psychiatric

  assistance. Wang called them 

n.19. That

  may or may not be accurate.

¶ 69   The first sentence in the paragraph where the two

  qualifications appear — and that created the right to ancillary

  services — begins with the phrase, “[w]e therefore hold . . . .” 

. The qualifications appear in the sentence

  immediately after the first one, and it begins with the phrase, “[t]his

  is not to say . . . .” 

juxtaposition of a right

  and the limitations on that right looks like a holding to me. And I

  think that we ignore the Supreme Court’s entire holding —

  including the limitations on that holding — at our peril.

¶ 70   Second, both Brown and Wang relied on Simmons. See 

; 

. Wang placed a judicial


                                     25
  gloss on Ake by interpreting it to “reasonably limit the right to

  expert assistance, . . . not to permit a state to impose a choice

  between two constitutional rights that are not mutually 

n.19. As I have explained above, I do not think that

  Simmons supports such a conclusion for a variety of reasons.

¶ 71      I next synthesize the conclusions that I have reached.

          6.    Gonzalez-Lopez & Caplin & Drysdale + Ake - Simmons
                                 = Cardenas

¶ 72      My chain of reasoning in reaching the conclusion that the trial

  court did not violate defendant’s right to counsel of choice goes like

  this:

                Defendant was indigent, so, although he had the right to

                 counsel, he did not have the right to choose his counsel,

                 and he did not have the right to require the state to pay

                 for ancillary services. See 

; 

.

                Because he was indigent, he did not have a constitutional

                 right “to receive [state] funds to hire his own” investigator

                 and experts. 

.




                                        26
 Our supreme court implemented the right to ancillary

  services in Cardenas. See 

.

 By following Cardenas and by appointing the public

  defender to represent defendant, the trial court

  implemented his right to counsel and his right to

  ancillary services.

 Simmons does not apply in these circumstances, but,

  even if it did, it would not lead me to the conclusion that

  the trial court created an intolerable tension between

  defendant’s right to counsel and his right to ancillary

  services. I conclude instead that the choice that

  defendant faced — between Mr. Lane and the public

  defenders — was one of those difficult, but constitutional,

  choices that defendants sometimes face in the criminal

  justice system. See 

; 

.

 The court therefore did not wrongfully deny defendant his

  right to counsel of choice when it declined Mr. Lane’s

  request to continue to represent him, conditioned on the

  state’s payment for an investigator and various experts.

                         27
           And, because defendant’s right to counsel of choice was

            not wrongfully denied, we are not automatically required

            to reverse his conviction. Contra 

, 152; 

.

¶ 73   But, as defendant points out, the trial court did not follow the

  Chief Justice Directive. What should we do about that?

                    D.    The Chief Justice Directive

¶ 74   “Chief Justice Directives represent an expression of Judicial

  Department policy, to be given full force and effect in matters of

  court administration.” People v. Orozco, 

, 475 (Colo.

  App. 2009). If the trial court had applied the Directive, it could have

  authorized state funds to pay for ancillary services for defendant

  while Mr. Lane continued to represent him. (I do not address the

  issue, discussed in Judge Webb’s special concurrence, of whether

  the Directive violates the separation of powers doctrine. The parties

  did not raise it in the trial court or on appeal. See Moody v. People,

  

, 614-17 (Colo. 2007).)

¶ 75   Based on my preceding analysis, however, I do not think that

  the trial court erred by implementing Cardenas and appointing the

  public defender to represent defendant. But, even if the court had


                                    28
  erred when it did not consider CJD 04-04 section V(D), that same

  analysis shows that this error was not of constitutional dimension.

¶ 76   Everyone before us agrees that Mr. Lane did not even mention

  the Directive to the trial court. See Hagos v. People, 

,

  ¶ 14 (appellate courts review unpreserved nonconstitutional errors

  for plain error). Still, as Judge Dunn observes, an attorney

  probably should not have to direct a court’s attention to a Chief

  Justice Directive. But, in the end, we will reverse a conviction

  because of an unpreserved nonconstitutional error only if the error

  affected the defendant’s substantial rights. Crim. P. 52(b). To have

  this effect, the error must have “substantially influenced the verdict

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

  

, 342 (Colo. 1986), in a manner that casts “serious

  doubt” over the “reliability of the judgment of conviction,” Scott v.

  People, 

, ¶ 15.

¶ 77   Public defenders represented defendant throughout the

  proceedings. Mr. Lane obviously thought that defendant was in

  good hands because he told the trial court that, “in [his] estimation,

  the Colorado Public Defenders are in fact the best criminal defense

  lawyers in the United States of America.” The public defenders had


                                     29
  access to the services of one or more investigators. They retained

  experts to testify on defendant’s behalf. I therefore conclude that

  the trial court’s putative nonconstitutional error was harmless

  because it did not substantially influence the verdict or affect the

  fairness of defendant’s trial.

¶ 78     In summary, defendant’s constitutional right to counsel and

  his constitutional right to ancillary services were scrupulously

  honored. The Constitution promised him no more than that.

  III.   Defendant’s Convictions for False Reporting and Conspiracy to
         Commit False Reporting Were Not Barred by the Statute of
                               Limitations

¶ 79     After the prosecution rested, defendant moved for a judgment

  of acquittal on the false reporting and conspiracy to commit false

  reporting counts. He asserted that they were barred by the

  applicable statute of limitations. After the trial court denied his

  motion, the jury convicted him of both counts. He now contends

  that the trial court erred. We disagree.

                        A.    Statute of Limitations

¶ 80     We review de novo a trial court’s decision to deny a motion for

  a judgment of acquittal. People v. Patton, 

, ¶ 7. In

  doing so, we give the prosecution the benefit of every reasonable


                                     30
  inference that might fairly be drawn from the evidence, both direct

  and circumstantial. People v. Valdez, 

, ¶ 7. We also

  review de novo statute of limitations claims. People v. Johnson,

  

, ¶ 7.

                           B.    Legal Principles

¶ 81   A person commits false reporting when he knowingly makes a

  report to law enforcement officials “pretending to furnish

  information relating to an offense or other incident within [law

  enforcement’s] official concern when he . . . knows that [the]

  information . . . is false.” § 18-8-111(1)(c), C.R.S. 2016. And a

  person is guilty of conspiracy if, with the intent to facilitate or

  promote its commission, he agrees with another person to engage in

  criminal conduct or aid that person in the planning or commission

  of the crime. § 18-2-201(1), C.R.S. 2016.

¶ 82   The statute of limitations for the prosecution of these crimes

  was eighteen months, section 16-5-401(1)(a), C.R.S. 2016, and it

  generally began to run when the crime was completed, or, in other

  words, when all the substantive elements of the crime had been

  satisfied. People v. Thoro Prods. Co., Inc., 

, 1192 (Colo.

  2003); see also Blecha v. People, 

, 938 (Colo.


                                     31
  1998)(explaining that a conspiracy terminates when the objective of

  the conspiracy is obtained).

                            C.    Application

¶ 83   Defendant asserts that the crimes of false reporting and

  conspiracy to commit false reporting began and ended with

  defendant’s initial report to the police that A.T. was missing. This

  report occurred a few days beyond the eighteen-month statute of

  limitations. So defendant asserts that the statute of limitations had

  run on those crimes.

¶ 84   We disagree because (1) the indictment did not charge

  defendant with the initial false report; and (2) defendant made

  misrepresentations to the police within the eighteen-month statute

  of limitations period.

¶ 85   One of these misrepresentations that fell within the statute of

  limitations occurred during a conversation that defendant had with

  a police officer at a shoe store. The officer accompanied defendant

  to the store so that defendant could identify a pair of shoes that he

  had bought A.T. to “assist in the search” for her. Defendant pointed

  out a pair of shoes that he said were the same style as the ones A.T.

  had been wearing when she ran away. By identifying the shoes “to


                                    32
  assist” the officer in the search for A.T., the jury could conclude

  that defendant had furnished information to the police concerning

  A.T.’s disappearance that he knew was false. See People v. Blue,

  

, 1278 (Colo. App. 2011)(“The crime of false reporting

  penalizes those who provide untruthful information to public

  officials . . . .”).

¶ 86     The evidence also supports a reasonable conclusion that

  defendant had conspired with Ms. Lowe to offer the police a false

  report. While one officer was with defendant at the store, another

  officer was at defendant’s home with Ms. Lowe. Mr. Williams, Ms.

  Lowe’s ex-boyfriend, called her because the police had asked him to

  do so. (By this time, the officers already knew that Ms. Lowe had

  admitted to Mr. Williams that A.T. was dead.) The officer watched

  Ms. Lowe leave the room to take Mr. Williams’ call. When she

  returned, “she was markedly angrier.”

¶ 87     Back at the shoe store, defendant received a couple of cell

  phone calls. During these calls, the officer who was with him

  noticed that he became “more and more upset.” After being in the

  store for fifteen to twenty minutes, defendant demanded that the

  officer take him home. Upon returning home, defendant went


                                     33
  directly inside to be with Ms. Lowe, and he asked that the officer

  leave the house.

¶ 88    Viewing the reasonable inferences drawn from this evidence in

  the light most favorable to the prosecution, a reasonable juror could

  find that, after Ms. Lowe spoke with Mr. Williams, she thought that

  the police had become suspicious of both the story that A.T. had

  run away and the information that they had provided to help the

  police search for her. A reasonable juror could also find that, after

  receiving Mr. Williams’ call, Ms. Lowe immediately called defendant

  to confer about how they should tailor their false reports.

¶ 89    We conclude that the record contains sufficient evidence to

  support defendant’s convictions for false reporting and conspiracy

  to commit false reporting based on conduct that had occurred

  within eighteen months of when the grand jury indicted defendant

  on those charges. We therefore further conclude that these two

  convictions were not barred by the statute of limitations.

  IV.   The Trial Court Did Not Abuse Its Discretion When It Admitted
                            Certain Evidence

¶ 90    Defendant contends that the trial court erroneously admitted

  the following out-of-court statements: (1) Ms. Lowe’s statements



                                    34
  that defendant might face the death penalty; (2) Ms. Lowe’s

  statements to her close friend, Ms. Graves; (3) Ms. Lowe’s

  statements to Mr. Williams; and (4) the children’s statements to

  various people.

                         A.    Standard of Review

¶ 91   A trial court has considerable discretion when deciding

  whether evidence is admissible at trial. People v. McFee, 

, ¶ 17. We will therefore only reverse a court’s decision to admit

  evidence if it abused its discretion. 

court abuses its

  discretion only if its decision is manifestly arbitrary, unreasonable,

  unfair, or is based on a misunderstanding or misapplication of the

  law. 

Lowe’s Statements About the Death Penalty

                       1.     Additional Background

¶ 92   After Ms. Lowe told Ms. Graves that A.T. had died, Ms. Graves

  recorded conversations that she had with Ms. Lowe. Ms. Lowe told

  Ms. Graves that she could be subject to “five years for hiding it” and

  that “this means death for [defendant].” One of Ms. Lowe’s

  children, A.L., also reported that Ms. Lowe had told him not to

  cooperate with the police because defendant would receive the


                                     35
  death penalty if the police found out what had actually happened to

  A.T.

¶ 93     The trial court decided that Ms. Lowe’s statements to the child

  A.L. were relevant (1) to prove that she exerted influence over the

  child; and (2) to help explain the inconsistencies in A.L.’s

  statements about A.T.’s disappearance. The court ruled that Ms.

  Lowe’s statements to Ms. Graves were relevant to “show the length

  [that Ms. Lowe] was willing to go” and “what she was telling others

  in order to get them to do and act as she felt they should to further

  the conspiracy.”

                           2.   Legal Principles

¶ 94     Evidence is relevant if it has “any tendency to make the

  existence of any fact that is of consequence to the determination of

  the action more probable or less probable than it would be without

  the evidence.” CRE 401. Even relevant evidence may be excluded,

  however, if its probative value is substantially outweighed by the

  danger of unfair prejudice, confusion of the issues, or misleading

  the jury. CRE 403.




                                     36
                            3.    Application

¶ 95   Defendant contends that this evidence was far more

  prejudicial than probative. But we conclude that the record

  supports the trial court’s ruling. Ms. Lowe’s statements provided

  evidence to prove defendant’s conspiracy with her to conceal A.T.’s

  death. These statements explained A.L.’s false reports to the police,

  which were made because defendant and Ms. Lowe told the boy to

  make them.

¶ 96   We next conclude, for two reasons, that the probative value of

  this evidence was not substantially outweighed by the danger of

  unfair prejudice. “[O]nly prejudice that suggests a decision made

  on an improper basis . . . requires exclusion of relevant evidence.”

  People v. Warner, 

, 563 (Colo. App. 2010). An

  improper basis is “sympathy, hatred, contempt, retribution, or

  horror.” People v. Dist. Court, 

, 147 (Colo. 1990).

¶ 97   First, although discussion of the death penalty might invoke a

  strong reaction in a juror, the court instructed the jury that the

  death penalty was not an issue in this case.




                                    37
¶ 98   Second, the court gave the jury a limiting instruction when it

  admitted the statements about the death penalty that mitigated any

  prejudice. The instruction stated that

            [p]ortions of [the recorded statements between
            Ms. Lowe and Ms. Graves and the statement
            that Ms. Lowe made to A.L.] may [have]
            reference[d] the death penalty or potential
            punishment. This evidence [was] offered for
            the limited purpose of demonstrating the
            intent of . . . [Ms.] Lowe [and the effect of these
            statements on A.L.]. These particular
            statements are not offered as evidence they are
            true. You shall not consider this for any
            purpose other than the limited purpose for
            which these portions were admitted.

¶ 99   We must presume that the jury followed this instruction, and

  nothing in the record rebuts this presumption. See People v.

  Thomeczek, 

, 115 (Colo. App. 2011)(finding that the

  trial court’s limiting instruction mitigated any prejudice resulting

  from the evidence); see also People v. Marko, 

, ¶ 195

  (“[A]bsent evidence to the contrary, we presume jurors understand

  and heed jury instructions.”)(cert. granted Oct. 24, 2016). We

  therefore conclude that no juror could have reasonably believed

  that the death penalty was an issue in this case.




                                    38
                          C.        Hearsay Statements

¶ 100     Defendant contends that the trial court erred in admitting

  dozens of hearsay statements made by Ms. Lowe and by the

  children. We address these contentions in turn.

                               1.    Legal Principles

¶ 101     Hearsay is an out-of-court statement that is offered as

  evidence at trial to prove the truth of the matter asserted. CRE

  801(c). Hearsay statements are presumptively unreliable and

  generally inadmissible unless they fall within an exception. McFee,

  ¶ 10.

¶ 102     One such exception is if an unavailable declarant made a

  statement against interest. A statement against interest is

  admissible if the statement (1) had so great a tendency to expose

  the declarant to criminal liability at the time it was made that a

  reasonable person in the declarant’s position would have made it

  only if the person believed it to be true; and (2) is supported by

  corroborating circumstances that indicate its trustworthiness. CRE

  804(b)(3); see People v. Beller, 

, ¶ 56. In determining

  a statement’s trustworthiness, “the court should consider when and

  where the statement was made, what prompted the statement, how


                                         39
  the statement was made, and the substance of the statement.”

  People v. Jensen, 

, 138 (Colo. App. 2001). The court

  should also consider “the nature and character of the statement,

  the relationship between the parties to the statement, the

  declarant’s probable motivations for making the statement, and the

  circumstances under which the statement was made.” Bernal v.

  People, 

, 197 (Colo. 2002).

¶ 103   Out-of-court statements may also be admissible because they

  are not hearsay. As is relevant to this case, statements in this

  category include those made by a co-conspirator during the course

  of and in furtherance of a conspiracy. CRE 801(d)(2)(E); 

. Such statements are admissible against all

  co-conspirators. 

. To be admissible, the

  proponent of the statement must show, by a preponderance of the

  evidence, that a conspiracy existed and that the statements were

  made during the course of and in furtherance of the conspiracy.

  People v. Faussett, 

, ¶ 34. Although the contents of

  the statements may be considered to satisfy this burden, evidence

  must corroborate the existence of the conspiracy apart from the

  statements themselves. 

104   In addition to the evidentiary rules concerning the admission

  of hearsay, out-of-court statements must also satisfy the Federal

  and State Confrontation Clauses. U.S. Const. amend. VI; Colo.

  Const. art. II, § 16. The Confrontation Clauses provide a criminal

  defendant with the right to confront the witnesses against him; they

  therefore prohibit the introduction of testimonial statements when

  the declarant is unavailable to testify at trial and was not previously

  subject to cross-examination. Crawford v. Washington, 

, 59 (2004); see People v. Fry, 

, 975-76 (Colo. 2004).

¶ 105   When a hearsay statement is nontestimonial, the Federal

  Confrontation Clause is not triggered. See Michigan v. Bryant, 

, 357-59 (2011). The statement, however, may still be

  barred under the Colorado Confrontation Clause unless the

  declarant is unavailable and the statement bears sufficient indicia

  of reliability. People v. Phillips, 

, ¶ 84. “A statement

  is reliable if it falls within a firmly rooted hearsay exception or if

  there is a showing of particularized guarantees of trustworthiness.”

  People v. Villano, 

, 1228 (Colo. App. 2008).




                                      41
¶ 106    We review the questions of whether a statement is testimonial

  and whether its admission violated the defendant’s confrontation

  rights de novo. Phillips, ¶ 85.

         2.    Ms. Lowe’s Out-of-Court Statements to Ms. Graves

                         a.   2004 Conversation

¶ 107    Ms. Graves described a conversation with Ms. Lowe at a park

  in 2004. Ms. Lowe became emotional, and she explained that one

  morning A.T. did not come down for breakfast. She said that when

  she went to check on A.T., she found the girl unresponsive in her

  bed.

¶ 108    According to Ms. Lowe, when defendant saw A.T.’s condition,

  he told her to leave the room. Several hours later, he left the house

  with A.T., and he did not come back for quite some time.

¶ 109    Ms. Lowe told Ms. Graves that she could not go to the police

  because the police would take her children. She said that she had

  discussed several stories with defendant to cover up A.T.’s death.

  In one of these stories, defendant would claim that he had taken

  A.T. to see her biological mother in Michigan, but someone had

  kidnapped the girl while they were en route.




                                    42
¶ 110   Ms. Lowe asked Ms. Graves to come with her to find a place on

  the route to Michigan that they could claim was the place where the

  child had been kidnapped. Ms. Graves refused to participate.

¶ 111   At the pretrial admissibility hearing, the court heard this

  testimony from Ms. Graves. It found that Ms. Lowe was

  unavailable, that her statements subjected her to criminal liability

  for concealing the death of A.T., and that she understood the legal

  consequence of her statements. The court also determined that Ms.

  Lowe’s statements were trustworthy and reliable because of the

  nature and the character of the circumstances surrounding them.

  Based on these findings, the court admitted the 2004 conversation

  as a statement against interest. (The court alternatively admitted

  the contents of the conversation as res gestae. We do not address

  that part of the court’s ruling because we conclude that the

  statements were admissible as statements against interest.)

¶ 112   Defendant contends that the trial court erred when it admitted

  the contents of the 2004 conversation between Ms. Lowe and Ms.

  Graves because the statements were not reliable. We disagree for

  the following reasons.




                                    43
¶ 113   First, the record supports the trial court’s findings. The

  statements inculpated Ms. Lowe in her conspiracy with defendant

  to conceal A.T.’s death.

¶ 114   Second, Ms. Graves’ testimony about the circumstances

  surrounding the conversation showed that the statements were

  reliable. She stated that she and Ms. Lowe were best friends and

  that they shared everything. Ms. Graves also testified that Ms.

  Lowe’s demeanor was unusual, so Ms. Graves knew that something

  was bothering her. When Ms. Lowe mentioned A.T.’s death, she

  began crying and shaking.

¶ 115   Third, the record indicates that Ms. Lowe’s statements were

  voluntary, they were reasonably detailed, they reflected her

  personal knowledge of the events, and they inculpated her as well

  as defendant. As the court noted, Ms. Lowe “was very careful not to

  just dump [it] on . . . Mr. Thompson.”

¶ 116   And, although Ms. Lowe’s statement that A.T. had died was

  not, by itself, a statement against interest, we do not think that the

  court erred when it admitted it. Under CRE 804(b)(3), the court

  may admit not only the precise statement against interest but also

  “related, collaterally neutral statements.” People v. Newton, 966


                                    

, 578 (Colo. 1998)(“[S]evering collaterally neutral

  statements from each precise self-inculpatory remark deprives the

  jury of important context surrounding that self-inculpatory

  remark.”).

¶ 117   Ms. Lowe’s statement that A.T. was dead was one of those

  related, collaterally neutral statements. Without that statement,

  Ms. Lowe’s additional comments about concealing A.T.’s death and

  soliciting Ms. Graves to assist her in doing so would not have made

  any sense. The statement that A.T. had died was therefore

  necessary to understand the 2004 conversation. Based on the

  totality of the circumstances, we conclude that the trial court did

  not abuse its discretion when it admitted the contents of the

  conversation as statements against Ms. Lowe’s penal interests.

¶ 118   As for the Federal Confrontation Clause, defendant concedes

  that Ms. Lowe’s statements were nontestimonial. Still, he continues

  by asserting that her nontestimonial statements violated the

  Colorado Constitution’s Confrontation Clause because they did not

  bear sufficient indicia of reliability. See Phillips, ¶ 84. But the trial

  court’s finding that Ms. Lowe’s statements against interest were

  supported by corroborating circumstances, in effect, “incorporate[d]


                                     45
  the [Colorado] Confrontation Clause’s requirement that a statement

  bear particularized guarantees of trustworthiness.” Beller, ¶ 58.

  Because the record supports the trial court’s reliability findings, we

  conclude that the court’s admission of these statements did not

  violate the Colorado Confrontation Clause.

                     b.   The Recorded Statements

¶ 119   The second set of statements between Ms. Lowe and Ms.

  Graves began a year after their 2004 conversation. Ms. Graves,

  cooperating with the police, recorded multiple conversations she

  had with Ms. Lowe. During these conversations, Ms. Lowe

  repeatedly tried to dissuade Ms. Graves from talking to the police

  about A.T. Ms. Lowe also expressed regret for telling Ms. Graves

  about A.T.’s death. The court ruled that the recorded statements

  were nontestimonial, and the court admitted them as

  co-conspirator statements because they “were clearly statements in

  furtherance of and during the course of the conspiracy.”

¶ 120   Defendant contends that, because the recorded statements

  were obtained at the direction of the police, they were testimonial

  and that their admission violated the Federal Confrontation Clause.

  But statements made by a co-conspirator in furtherance of the


                                    46
  conspiracy are nontestimonial. See 

;

  see also United States v. Patterson, 

, 1247 (10th Cir.

  2013)(“[B]ecause these statements were made in furtherance of a

  conspiracy, they are nontestimonial and present no Sixth

  Amendment problem.”). And the United States Supreme Court has

  said that such statements are nontestimonial even if made to a

  person working with, or at the direction of, the police. See Bourjaily

  v. United States, 

, 181-84 (1987); see also 

(holding that a co-conspirator’s statements to an

  undercover police officer made during the course of and in

  furtherance of the conspiracy were nontestimonial).

¶ 121   Bourjaily is instructive. The Supreme Court rejected the

  defendant’s contention that the admission of a conversation

  between a co-conspirator and a confidential police informant

  violated the Federal Confrontation Clause. 

. Although Bourjaily did not consider whether the statements

  were testimonial, the Supreme Court later referenced Bourjaily as

  consistent with the principle that the Sixth Amendment permits the

  admission of nontestimonial statements in the absence of prior

  opportunities for cross-examination. 

; see


                                    47
  also United States v. Hendricks, 

, 183-84 (3d Cir.

  2005); People v. Compan, 

, 537 (Colo. App. 2004),

  aff’d, 

(Colo. 2005). And, contrary to defendant’s

  contention, Ms. Lowe’s suspicion that Ms. Graves was cooperating

  with the police does not alter the application of Bourjaily. Indeed, it

  would be hard to conclude that a reasonable person in Ms. Lowe’s

  position would have made incriminating statements if she had

  believed that they would later be used in the investigation or

  prosecution of a crime. We therefore conclude that Ms. Lowe’s

  recorded statements to Ms. Graves were not testimonial.

¶ 122   The record also supports the trial court’s conclusion that the

  recorded statements were co-conspirator statements. Defendant

  and Ms. Lowe engaged in a “separate conspiracy to conceal” A.T.’s

  death after the conspiracy to cause her death. 

. Ms. Lowe’s statements to Ms. Graves were therefore made in

  furtherance of, and during the course of, an active conspiracy.

¶ 123   We conclude that the trial court properly admitted these

  statements as co-conspirator statements. And, although the

  recorded statements included information in addition to the specific

  statements in furtherance of the conspiracy, we further conclude


                                    48
  that the trial court did not abuse its discretion when admitting

  them because the parties had agreed that the court should consider

  “the statements coming in as a whole, rather than a line-by-line

  analysis of each conversation.”

¶ 124   Last, to the extent that defendant also challenges these

  nontestimonial statements under the Colorado Confrontation

  Clause, “[t]he admissibility of co-conspirator statements is so firmly

  rooted in law that a court need not independently inquire into the

  reliability of a co-conspirator’s statement.” 

. The admission of these statements therefore satisfied the

  Colorado Confrontation Clause’s requirements. See Beller, ¶ 53 (“A

  statement is sufficiently reliable for confrontation purposes if it falls

  within a firmly rooted hearsay exception . . . .”).

               3.   Ms. Lowe’s Statements to Mr. Williams

¶ 125   Mr. Williams described a conversation he had with Ms. Lowe a

  year before A.T. allegedly ran away. They were alone in a car when

  Ms. Lowe pulled over and told Mr. Williams that A.T. had stopped

  breathing during a bath. She claimed that, despite her efforts, she

  could not bring A.T. back to life. When Mr. Williams asked her why

  she did not call for help, she responded that she did not want her


                                     49
  children to be taken away because A.T. had a scar on her back from

  a “beating.” She then told Mr. Williams that she and defendant had

  decided to drive A.T.’s body far away to bury it. She said that, when

  they were burying A.T., “she [could] hear[] the last little breaths of

  life come out of her body.”

¶ 126   Ms. Lowe then explained that she and defendant had a story

  to explain A.T.’s disappearance: Defendant had taken A.T. to see

  her biological mother in Michigan and that someone had kidnapped

  A.T. during the trip.

¶ 127   Ms. Lowe then asked Mr. Williams to commit identity theft to

  help her raise money for defendant’s legal fees. He declined.

¶ 128   We conclude that Ms. Lowe’s statements to Mr. Williams about

  A.T.’s death, her participation in A.T.’s burial, and her attempts to

  conceal A.T.’s death were admissible statements against interest.

  Much like the statements that Ms. Lowe had made to Ms. Graves,

  she told Mr. Williams that A.T. had died without any prompting by

  him. She then described her efforts to conceal the girl’s death. She

  added that she had heard A.T.’s last breaths while she and

  defendant were burying the girl. These statements about Ms.

  Lowe’s efforts to conceal A.T.’s death subjected her to criminal


                                     50
  liability. And Ms. Lowe’s statement that A.T. was still breathing

  when they buried her inculpated her in killing A.T.

¶ 129   The circumstances under which Ms. Lowe made the

  statements also support the trial court’s determination that they

  were reliable. Mr. Williams described his long relationship with Ms.

  Lowe. He said that they had been best friends who confided in each

  other. Ms. Lowe voluntarily made these statements to Mr. Williams

  while they were alone in a car and when she was visibly upset. She

  did not shift the blame to Mr. Thompson but equally inculpated

  herself in (1) burying A.T. while she was still alive; and

  (2) concealing A.T.’s death. We therefore conclude the court did not

  abuse its discretion when it admitted Ms. Lowe’s statements to Mr.

  Williams.

¶ 130   Ms. Lowe’s statement soliciting Mr. Williams to commit

  identity theft to raise money for defendant’s legal funds is not as

  straightforward. At the pretrial hearing, Mr. Williams testified that

  Ms. Lowe asked him to commit identity theft during the same

  conversation in which she disclosed A.T.’s death. At trial, however,

  he testified that this statement was made “a week [or] week and a

  half” later. Because the trial court did not consider this statement


                                     51
  separately, it did not make individualized reliability findings or

  consider the circumstances under which this second conversation

  occurred. Based on the record before us, we cannot determine the

  trustworthiness of the statement. See 

  (explaining that trial court should make findings on the

  trustworthiness of the statement against interest).

¶ 131   Even so, and if we assume that admitting this statement was

  error, we conclude, for the following reasons, that this putative

  error was harmless. First, it was not a constitutional error. See

  Faussett, ¶ 54 (listing the facts a court should consider when

  deciding whether an error is harmless). Second, this statement was

  not crucial to the prosecution’s case. See 

statement

  was somewhat tangential because it did not directly concern

  defendant’s or Ms. Lowe’s responsibility for A.T.’s death. See 

prosecutor did not emphasize this evidence in closing

  argument. Fifth, this was not a close case; the prosecution’s

  evidence was strong. See 

   The Children’s Statements

          1.   The Children’s Testimony About “the A.T. Story”

¶ 132   Following defendant’s report that A.T. had run away from

  home, police officers spoke with the other seven children who lived

  in the home. Forensic interviewers also spoke with most of the

  children shortly after they had been removed from that home.

¶ 133   In the beginning, the children’s stories were fairly consistent.

  They all repeated the story that A.T. had run away and that they

  remembered seeing A.T. at home on the morning that defendant

  had reported her as a runaway. The children also repeated similar

  details about A.T., including describing her Halloween costume that

  year and naming her favorite food and her favorite color. The court

  described these statements as “the A.T. story.”

¶ 134   But, as time passed, the children revealed that the A.T. story

  was a lie that defendant and Ms. Lowe had instructed them to tell.

¶ 135   The trial court admitted the children’s renditions of the A.T.

  story not for the truth of the story — it was not true — but as

  nonhearsay verbal acts. A verbal act is admissible to show that the

  statement was actually made, not to prove the truth of it. People v.

  Scearce, 

, 233 (Colo. App. 2003). And, if an


                                     53
  out-of-court statement is not offered for its truth, it is admissible as

  nonhearsay evidence as long as it is relevant to the issues

  presented. Phillips, ¶ 62.

¶ 136   To the extent that defendant contends that the trial court

  erred when it admitted the children’s individual versions of the A.T.

  story, we disagree. The children knew when they told the A.T. story

  to the police that it was false. They later admitted that defendant

  and Ms. Lowe had instructed them to tell that false story.

¶ 137   The prosecution had charged defendant with contributing to

  the delinquency of each child because he had instructed them to

  make a false report to the police by telling the officers the A.T. story.

  Those statements were therefore relevant, not for their truth, but to

  prove that (1) defendant had told the children to lie to the police;

  and (2) the children had done as they had been told.

¶ 138   Defendant adds that, because A.T.J. did not testify at trial, the

  court violated the Federal Confrontation Clause when it admitted

  his version of the A.T. story. See 

. But

  A.T.J.’s statements were verbal acts, and the court did not admit

  them for their truth. Instead, as noted above, A.T.J.’s statements

  provided evidence that, at defendant’s instruction, he had lied to


                                     54
  the police. Because A.T.J.’s statements were not hearsay, the

  Confrontation Clause did not apply to them. People v. Robinson,

  

, 1151 (Colo. App. 2009)(“[T]he admission of

  nonhearsay does not implicate a defendant’s confrontation rights.”);

  see also 

n.9 (“The Clause also does not

  bar . . . the use of testimonial statements for purposes other than

  establishing the truth of the matter asserted.”); accord People v.

  Isom, 

, 103 (Colo. App. 2005).

¶ 139   We therefore conclude that the trial court did not abuse its

  discretion when it admitted the children’s various versions of the

  A.T. story that they had told to police officers and to forensic

  interviewers.

           2.     The Children’s Statements About Child Abuse

¶ 140   Beginning with their initial police contact, the children

  described the physical abuse that defendant and Ms. Lowe had

  inflicted on them. The children continued to disclose more specifics

  about the abuse as they made additional statements to forensic

  interviewers, therapists, caseworkers, and foster parents.

¶ 141   After a pretrial evidentiary hearing, the trial court considered

  the admissibility of the children’s statements one by one. The court


                                     55
  admitted the majority of these statements under the child hearsay

  statute. See § 13-25-129(1), C.R.S. 2016. In doing so, it carefully

  considered the relevant factors for admission, and then it provided

  detailed and thorough findings about the reliability of the children’s

  statements.

¶ 142   As an initial matter, we reject defendant’s contention that the

  trial court erred when it denied his request to subpoena the

  children to testify at the pretrial hearing. To be sure, a defendant

  may subpoena a child victim to testify at a pretrial hearing, but only

  if “he can show that such testimony would be relevant and

  necessary.” People v. Snyder, 

, 838 (Colo. App. 1992).

  In many instances, the victim’s testimony may be needed for the

  court’s pretrial admissibility determination, but there is no

  requirement that the court must take such testimony. See 

  The trial court considered defendant’s offers of proof about

  why he thought the children should testify at the hearing. But, in

  light of the evidence that had already been presented, the court

  decided that the children would not be required to testify.

¶ 144   Specifically, the court pointed to the testimony of the

  witnesses to whom the children had made the statements, the


                                    56
  audio and video recordings of the statements, and the transcripts of

  the statements. The court ruled that these sources of information

  were “what really truly illuminates” whether the children’s

  statements were reliable when they were made. In other words, the

  children’s testimony about statements that they had made several

  years before would not add anything meaningful to the court’s

  analysis because it had ample evidence from the time when the

  children had made those statements. We therefore conclude that

  the record supports the court’s determination that the children did

  not have to testify at the pretrial evidentiary hearing. E.g., People v.

  Juvenile Court, 

, 761 (Colo. 1997)(stating that a child

  victim need not testify at the hearing).

¶ 145   We now turn to analyzing the trial court’s decision to admit

  the children’s statements at trial. When a child abuse victim

  testifies at trial, the child’s prior out-of-court statements about any

  act of abuse that the child suffered or that the child witnessed may

  be admitted if the court finds that the time, content, and

  circumstances of the statements provide sufficient safeguards of

  reliability. § 13-25-129(1)(a), (b)(I); People v. Pineda, 

, 67

  (Colo. App. 2001). These safeguards of reliability include factors


                                     57
  such as (1) whether the statement was spontaneous; (2) whether it

  was made while the child was still upset or in pain from the alleged

  abuse; (3) whether the language was likely to have been used by a

  child of the victim’s age; (4) whether it was heard by more than one

  person; (5) whether the child victim had a bias against the

  defendant; (6) whether intervening events could account for the

  statement; (7) whether the allegation was in response to a leading

  question; and (8) the general character of the child victim. People v.

  Rojas, 

, 1218-19 (Colo. App. 2008); see also People v.

  Dist. Court, 

, 1089-90 (Colo. 1989). While these

  factors provide guidance and direction, the absence of one or more

  factor does not bar a court from admitting a statement. See Dist.

  

.

¶ 146   We will uphold a court’s decision to admit a child hearsay

  statement “if the record shows an adequate factual basis to support

  its decision.” Phillips, ¶ 91.

¶ 147   First, defendant contends that the children’s initial statements

  to the police were not spontaneous, specific, or close in time to the

  reported abuse. He also contends that the children were subjected




                                    58
  to interrogation techniques designed to “break” the children. The

  record, however, refutes these assertions.

¶ 148   After the children relayed the A.T. story to the police officers,

  the officers asked them individually about the type of punishment

  they received. The children reported that they received “whoopins.”

  While fairly general, their response was to an open-ended question,

  they used age-appropriate language, and the court found that the

  children did not have a motivation to lie about the child abuse.

¶ 149   The court also noted that the manner in which the children

  brought up the abuse increased the reliability of their statements.

  In particular, the court observed that the abuse “was such a

  day-in-day-out reality [for] these children they didn’t even consider

  it to be remarkable [such] that they shouldn’t tell law enforcement

  about [it].” The record also supports these findings.

¶ 150   Second, defendant submits that the children’s reports of

  abuse to their respective therapists, caseworkers, foster parents,

  and teachers were unreliable because intervening events

  precipitated the disclosures, the abuse did not occur close in time

  to the disclosures, the children were aware that disclosing abuse




                                     59
  led to them receiving considerable attention, and the children’s

  prior lies to the police undercut their credibility.

¶ 151   The trial court considered these arguments at the pretrial

  hearing and found that factors surrounding the children’s

  statements — considered in their individual circumstances —

  overcame these contentions. See 

(“[T]he

  fact that not all the relevant factors support admissibility does not

  require exclusion of the statements.”). The court found that the

  children’s reports of abuse were made in response to open-ended

  questions, in age-appropriate language, without a motivation to lie

  about the abuse, and in environments in which the children felt

  safe. Given the court’s thorough findings about the admissibility of

  the children’s statements, we conclude that the court did not abuse

  its discretion when it admitted these statements.

¶ 152   Third, we reject defendant’s contention that the trial court

  should not have admitted the children’s descriptions of their abuse

  in 2007 forensic interviews because that time was too remote from

  the incidents of abuse. Although these interviews occurred almost

  two years after the children were removed from the home, the

  record supports the court’s finding that no intervening events had


                                     60
  occurred that would have prompted the children to make up their

  descriptions of the abuse that they had suffered. And, for some of

  the children, the therapeutic sessions they had participated in

  during these two years appeared to explain why they were able to

  recall specific incidents of abuse years after it occurred. In sum,

  the circumstances surrounding these interviews and the content of

  the children’s statements support the trial court’s determination

  that they were reliable. See, e.g., People v. Brown, 

-2, ¶ 29 (“[W]e defer to the trial court’s findings of fact which

  are supported by the record.”).

   3.    Statements Admitted Under the Residual Hearsay Exception

¶ 153   Defendant next contends that the trial court erred when it

  admitted some of the children’s out-of-court statements under the

  residual hearsay exception, including: (1) A.L.’s 2007 forensic

  interview; (2) R.R.’s statement to his foster parent; and (3) the

  children’s admissions to the 2005 forensic interviewer that their

  reports of A.T.’s disappearance were not truthful and that

  defendant and Ms. Lowe had instructed them to lie.




                                    61
                          a.    Legal Principles

¶ 154   In the absence of a particularized exception, a trial court may

  admit hearsay statements under the residual hearsay exception.

  CRE 807. Under this exception, the court must determine that

  (1) circumstantial guarantees of trustworthiness support the

  statement; (2) the statement provides evidence of a material fact;

  (3) the statement is more probative of the material fact than other

  evidence available; (4) admission serves the interests of justice and

  purposes of the rules of evidence; and (5) the adverse party had

  adequate notice of the proponent’s intention to introduce the

  statement. People v. Fuller, 

, 744 (Colo. 1990).

¶ 155   In evaluating the trustworthiness of a statement for purposes

  of the residual exception, “we examine the nature and character of

  the statement, the relationship of the parties, the probable

  motivation of the declarant in making the statement, and the

  circumstances under which the statement was made.” McFee, ¶ 19.

  The party offering the statement must establish its trustworthiness

  by a preponderance of the evidence. Brown, ¶ 20.




                                    62
           b.    A.L.’s Statements to the Forensic Interviewer

¶ 156   In 2007, A.L. made statements to the forensic interviewer

  recounting specific instances of abuse that defendant and Ms. Lowe

  had inflicted on him. A.L. also participated in a follow-up interview

  with the police about these reports. Because A.L. was sixteen years

  old at the time that he made these statements, the child hearsay

  statute did not apply. See § 13-25-129(1).

¶ 157   But the court decided that these statements were admissible

  under the residual hearsay exception. In making this

  determination, the court found that the statements were supported

  by circumstantial guarantees of trustworthiness because A.L.

  (1) had no motivation to hurt defendant; (2) had first-hand

  knowledge of the events; (3) made the statements during a forensic

  interview; (4) made the statements after participating in therapy;

  and (5) was comfortable speaking with the forensic interviewer. The

  court also determined “that these statements [were] more probative

  on the point in terms of the comfort level and being able to talk

  about those things and give full descriptions.”




                                    63
¶ 158   For similar reasons, the court found that A.L.’s follow-up

  interview with the police had “heightened reliability,” so it was

  admissible under CRE 807.

¶ 159   We are not persuaded by defendant’s contention that the trial

  court erred when it found that A.L.’s statements in the forensic

  interview were not more probative of the abuse that he had suffered

  than other available evidence. Even though A.L. was able to testify

  to the instances of abuse, the trial court found that, because of

  A.L.’s prior antagonistic demeanor toward law enforcement and, by

  contrast, the surprising “comfort[]” that he had shown in the

  forensic interview, he was able to provide a clear description of what

  happened in the forensic interview. We defer to these findings

  because the record supports them. See Brown, ¶ 29.

                c.    R.R.’s Statements to Police Officers

¶ 160   We next turn to R.R.’s statements. Following his interview

  with the police officers, R.R. was crying and enraged. He blamed

  the police for breaking his family apart. During the ride to his

  foster home, he spoke in “a string of consciousness,” and he

  admitted that he had not seen A.T. since he had moved in with




                                    64
  defendant and Ms. Lowe almost a year previously, and that Ms.

  Lowe had instructed him what to tell the police about A.T.

¶ 161   The court admitted these statements under the residual

  hearsay exception and as excited utterances. Even if we assume

  that the court should not have admitted the statements under the

  residual exception, defendant does not challenge their admission as

  excited utterances on appeal. See CRE 803(2); see also Lawson v.

  Stow, 

, ¶ 41 (“[A] party’s failure to present a cogent

  argument contesting a court’s alternative basis for judgment

  requires us to affirm the judgment.”); Phillips, ¶ 63 (“We may uphold

  the trial court’s evidentiary decision on any ground supported by

  the record . . . .”). We therefore conclude that the trial court did not

  err when it admitted these statements as excited utterances.

        d.   The Children’s Statements to the Forensic Interviewer

¶ 162   Defendant next asserts that the trial court erred when it

  admitted particular statements that the children made in 2005 to a

  forensic interviewer. These statements included (1) the children’s

  disclosures that defendant and Ms. Lowe had instructed them to lie

  to the police; and (2) some related statements that the court had

  admitted for the truth of the matters asserted in them.


                                     65
¶ 163   As we have observed above, the trial court made thorough and

  detailed reliability determinations regarding each of these

  statements, and it decided that the circumstances surrounding the

  children’s disclosures during their forensic interviews were reliable

  and more probative about the abuse than the other evidence. The

  court noted that these statements were made immediately after the

  children had been removed from the home and that they had given

  “a real snapshot of what was going on” at that point in time.

¶ 164   We conclude that the trial court did not abuse its discretion

  when it admitted these statements because the record supports the

  trial court’s findings and analysis.

   4.    Special Concerns About the Reliability of K.W.’s Statements

¶ 165   Defendant asserts that K.W.’s statements were not reliable

  because, at the time that she made them, she was developmentally

  delayed and she had a speech impediment. We disagree.

        The trial court admitted four of K.W.’s out-of-court statements:

           K.W.’s initial statement to the police right after defendant

             had reported that A.T. had run away. She said that A.T.

             had walked down the street. The court admitted this

             false report as a verbal act.


                                     66
           K.W.’s statement to a caseworker that A.T. had not been

             in the home for some time.

           K.W.’s forensic interview.

           K.W.’s statement to her therapist that disclosed specific

             instances of child abuse.

¶ 166   The trial court recognized that K.W. was developmentally

  delayed, but it noted that “just because someone is developmentally

  delayed[,] [it] does not make them ipso facto unreliable.” It then

  considered the content and circumstances of K.W.’s out-of-court

  statements. It found that, given the “matter of fact” manner in

  which the statements were made and the appropriate language

  used, there were sufficient guarantees of reliability. We conclude

  that the record supports these findings and that the trial court did

  not abuse its discretion when it admitted these statements.

                         E.    Expert Testimony

¶ 167   Defendant asserts that two expert witnesses improperly

  vouched for the children’s credibility. We disagree.

¶ 168   We review the trial court’s decision to admit expert testimony

  for an abuse of discretion. See, e.g., People v. Watson, 

,

  711 (Colo. App. 2011). On the one hand, an expert witness may not

                                    67
  testify, either directly or by implication, that a child victim was

  telling the truth when the child reported an incident of abuse. See

  Venalonzo v. People, 

, ¶ 32. On the other hand, “experts

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

  consistent with the typical behavior or demeanor of victims of

  abuse.” People v. Glasser, 

, 78 (Colo. App. 2011).

¶ 169   One of the experts in this case, a psychotherapist, offered the

  opinion that the children had come from a “closed family system.”

  This meant that they could have trouble adjusting to the foster

  homes in which they had been placed. She added that it was not

  unusual for a victim of child abuse, (1) such as E.W.J. in this case,

  to blame himself for the abuse that he had received; or, (2) such as

  K.S. in this case, to shut down for a while, but then to remember

  more particulars about her abuse over time.

¶ 170   The second expert, a forensic interviewer, talked about

  “barriers to disclosure,” or factors in a child’s life that might prevent

  him or her from disclosing what had happened. These included the

  prospect that a parent might be imprisoned if the authorities

  learned what had happened; familial relationships; and familial




                                     68
  cultures, such as when parents taught children not to cooperate

  with police officers or with other governmental figures.

¶ 171   We conclude, for the following reasons, that the record in this

  case establishes that these two experts did not vouch for the

  children’s veracity, either directly or indirectly.

¶ 172   First, the experts did not testify, either directly or by

  implication, that the children were telling the truth. See CRE

  608(a); People v. Eppens, 

, 17 (Colo. 1999).

¶ 173   Second, they did not say that they believed the children. See

  People v. Oliver, 

, 225 (Colo. 1987).

¶ 174   Third, they did not suggest that children do not tend to make

  up a story that they have been abused. People v. Snook, 

, 649 (Colo. 1987).

¶ 175   Fourth, they did not try to explain inconsistencies in the

  children’s testimony. See Venalonzo, ¶ 36.

¶ 176   Rather, the experts’ testimony concerned the typical demeanor

  and traits of abused children. See People v. Mintz, 

,

  831 (Colo. App. 2007). This testimony was admissible because it

  helped the jury to understand the children’s behavior after they had

  been abused. People v. Relaford, 

, ¶ 28. Such


                                      69
  information provided “a relevant insight into the puzzling aspects of

  the child’s conduct and demeanor which the jury could not

  otherwise bring to its evaluation . . . .” People v. Whitman, 

, 383 (Colo. App. 2007)(citation omitted). In other words, the

  expert testimony in this case “deal[t] with the . . . general

  characteristics evidence which (1) relate[d] to an issue apart from

  credibility and (2) only incidentally tend[ed] to corroborate a

  witness’s testimony.” People v. Cernazanu, 

, ¶ 20.

          F.    Evidence Concerning Financial Circumstances

¶ 177   Defendant asserts that the trial court erred when it admitted

  certain financial evidence, specifically (1) how much the search for

  A.T. cost the taxpayers, as reflected by a video showing the police

  search for her; (2) defendant’s and Ms. Lowe’s reliance on

  government assistance, including subsidized housing and welfare;

  and (3) evidence that defendant and Ms. Lowe had bought a

  timeshare in Florida. He asserts that this information was only

  relevant to show that he and Ms. Lowe were “sponges on society”

  who had nonetheless purchased the luxury of a timeshare. We

  disagree. We conclude that this evidence was relevant and that its




                                     70
  relevancy was not outweighed by the danger of unfair prejudice.

  See CRE 401, 403.

¶ 178   First, the video documenting the police efforts to search for

  A.T., which was only six minutes long, was relevant to show that

  the police had taken defendant’s report that A.T. was missing

  seriously, that they had not prematurely focused their investigation

  on defendant and Ms. Lowe, and that their entire investigation was

  not shoddy. (Ms. Lowe had told Ms. Graves that the police had not

  done “anything” and that they did not believe defendant and Ms.

  Lowe.) This probative value was not substantially outweighed by

  the danger that it would unfairly prejudice the jury to regard

  defendant with “sympathy, hatred, contempt, retribution, or

  horror.” See Dist. 

.

¶ 179   Second, the information about defendant’s and Ms. Lowe’s

  welfare payments was relevant to show that they had claimed

  benefits for A.T., and that they had continued to do so after she

  died in order to keep her death secret. And the public housing

  information was mentioned only fleetingly to explain why a witness

  had inspected defendant and Ms. Lowe’s home. Again, this

  information was not unduly prejudicial. See 

180   The timeshare application was admitted because defendant

  had claimed that the entire family, including A.T., had gone to

  Florida on vacation about five months before defendant had

  reported to the police that she had run away. (Evidence established

  that A.T. had died about eighteen months before this Florida trip.)

  Defendant said that he did not have any photographs from this trip,

  but Ms. Lowe provided photographs that did not include A.T. So

  the application was relevant to show that the police had a reason to

  expand their investigation to the area in Florida where the

  timeshare unit was located to see if anyone had seen A.T. during

  this period. There was nothing unduly prejudicial about this

  information, either. See 

  Last, the prosecution did not contend that defendant and Ms.

  Lowe were “sponges on society”; there was no suggestion that the

  jury should convict defendant because he was a moocher or a

  welfare cheat.

                       G.    Cumulative Evidence

¶ 182   Defendant submits that the cumulative effect of all this

  allegedly improper evidence risked confusing the jurors or tiring

  them out. But defendant offers little in support of this submission.


                                    72
  He points to statements by several jurors that they doubted their

  ability to sort through fifty-five counts, to an allegation that one

  juror had been asleep at one point during the trial, and to the fact

  that the jury sent the court eleven questions while it was

  deliberating.

¶ 183   But none of these factors, separately or together, established

  that the jury was exhausted or confused. The court excused the

  jurors who thought that they could not work their way through all

  the counts. The allegedly sleeping juror told the court that he had

  not been sleeping and that he had been alert and listening to the

  testimony. And the jury’s questions did not indicate that it was

  confused or tired out. To the contrary, the jury asked the court to

  clarify some instructions; it pointed out typographical errors on the

  jury forms; and it wanted access to certain evidence.

¶ 184   We review the court’s decision to admit this allegedly

  cumulative evidence for an abuse of discretion. People v. Pahlavan,

  

, 1140 (Colo. App. 2003). “The fact that evidence is

  cumulative does not, by itself, render the evidence inadmissible.”

  

only abuses its discretion when it admits cumulative

  evidence if that decision is “manifestly arbitrary, unreasonable, or


                                     73
  unfair under the circumstances.” 

states that a court

  should avoid the “needless presentation of cumulative evidence.”

  (Emphasis added.)

¶ 185   We conclude, for the following reasons, that the court did not

  abuse its discretion when it admitted the evidence that defendant

  describes as cumulative.

¶ 186   First, the testimony of various witnesses about the A.T. story

  was not needlessly cumulative. It was, instead, relevant to show

  different aspects of the story and to establish that defendant and

  Ms. Lowe had instructed the other children in the house to tell it to

  the authorities. (Remember that defendant had been charged with

  individual counts of contributing to the delinquency of each of these

  children.) It also was relevant to prove the conspiracy between

  defendant and Ms. Lowe.

¶ 187   Second, the testimony about the means that Ms. Lowe used to

  discourage the children, Ms. Graves, and Mr. Williams from

  speaking to the police — suggesting that defendant could get the

  death penalty for killing A.T. and that the government would take

  the children away — was not needlessly cumulative. It established




                                    74
  that Ms. Lowe had used these means in attempt to silence everyone

  who knew about A.T.’s fate.

¶ 188   Third, the testimony from various witnesses about the

  punishments that defendant and Ms. Lowe inflicted on the children

  was not needlessly cumulative because it addressed the multiple

  counts of child abuse in which each child was named as a victim.

¶ 189   Fourth, testimony from several witnesses about how A.T., in

  particular, was punished by being placed in a closet — when

  combined with a full-size model of the closet — corroborated the

  children’s testimony and was not needlessly cumulative; it was

  relevant to disprove defendant’s claim that the children had made

  up the details of A.T.’s and their own abuse.

¶ 190   Fifth, the evidence that defendant and Ms. Lowe lived in public

  housing, collected welfare, and had applied for the Florida

  timeshare was not needlessly cumulative because it explained why

  the police took certain steps in their investigation.




                                     75
  V.    The Trial Court Did Not Abuse Its Discretion When It Imposed
          Consecutive Sentences on the Misdemeanor Child Abuse
                                  Counts

¶ 191   The jury convicted defendant of six counts of misdemeanor

  child abuse. The victims were the six children, besides A.T., who

  had lived with defendant and Ms. Lowe.

¶ 192   The trial court sentenced defendant to twenty-four months, or

  the maximum, in the county jail on each count. The court then

  ordered that these sentences were to be served consecutively to

  each other, for a total of twelve years. The court then ordered

  defendant to serve those sentences consecutively to the prison

  sentences that the court had imposed on the other counts. The

  court added that the consecutive jail sentences would precede the

  prison sentences. We review a trial court’s sentencing decisions for

  an abuse of discretion. People v. Muckle, 

, 382 (Colo.

  2005). Defendant contends that the trial court did not provide a

  reasonable explanation for its decision to order defendant to serve

  the misdemeanor sentences consecutively to the prison sentence

  and before the prison sentence. We conclude, for the following

  reasons, that the trial court did not abuse its discretion when it

  imposed the consecutive sentences.


                                    76
¶ 193   First, the court generally stated that, among other things, the

  “seriousness of the offense, the gravity of the offense, and the effects

  on the children [were] the driving factor[s] in imposing sentence in

  this case.” It added that “the level of abuse suffered by those

  children” justified the maximum sentence on each count.

¶ 194   Second, the court also referred to section 18-1.3-501(1)(c),

  C.R.S. 2016. As People v. Valadez, 

, ¶ 11, points out,

  this statute created a general rule and an exception. The general

  rule was that a court would not normally order a defendant to serve

  a jail sentence for a misdemeanor consecutively to a prison

  sentence for a felony. See 

was that a court could

  decide, “after consideration of all the relevant facts and

  circumstances, that a concurrent sentence [was] not warranted.”

  § 18-1.3.-501(1)(c). It could then impose a consecutive

  misdemeanor sentence. See Valadez, ¶ 15. If a concurrent

  sentence was not warranted, the court “must toll the prison

  sentence [and] order that the [consecutive] county jail

  sentence . . . be served before the remainder of the prison

  sentence.” 

27. “After fully serving the jail sentence, the




                                    77
  prisoner must then be transferred back” to prison “to serve the

  remainder of his prison sentence.” 

  Third, the misdemeanor sentences involved six different

  victims, and the prison sentences focused on the death of the

  seventh victim, A.T. See People v. O’Dell, 

, 657 (Colo.

  App. 2001)(explaining that, when multiple victims are named in

  multiple convictions, the court has discretion to impose consecutive

  sentences); see also People v. Howell, 

, 898 (Colo. App.

  2002)(a trial court is only required to describe the basic reasons for

  imposing a particular sentence); People v. Koehler, 

, 698

  (Colo. App. 2000)(a trial court is not required to explicitly comment

  on each of the statutory factors that it considered).

                 VI.   Things That We Will Not Consider

                 A.    Attachments to the Opening Brief

¶ 196   Defendant attached five appendices to his opening brief. The

  prosecution asserts that these appendices constitute an improper

  attempt to provide additional legal authority and record citations

  outside of the word limit that a division of this court had previously

  authorized. We agree.




                                    78
¶ 197   Defendant’s opening brief initially contained almost 36,000

  words and one appendix. See C.A.R. 28(g)(1)(“An opening . . . brief

  must contain no more than 9,500 words.”). A division of this court

  struck the opening brief, but it granted defendant leave to file an

  amended oversized brief containing no more than 25,700 words.

  His amended opening brief fell just within this word limit, but the

  number of appendices quintupled, and they contained lengthy legal

  and record citations.

¶ 198   Given that the division authorized defendant to file an opening

  brief that was two-and-a-half times longer than the length

  established by C.A.R. 28(g)(1), we conclude that this addition of

  eighteen additional pages of appendices “makes a mockery of the

  rules that govern the length of briefs.” Castillo v. Koppes-Conway,

  

, 291 (Colo. App. 2006). We therefore shall not

  consider the appendices, including any contentions in them that

  are not raised in the opening brief itself. See id.; Legro v. Robinson,

  

, ¶ 30 n.8.

                B.   Insufficiently Developed Contentions

¶ 199   We also will not review contentions that have not been

  “sufficiently developed.” See People v. Allman, 

, ¶ 15;


                                    79
see also People v. Simpson, 

, 555 (Colo. App. 2003)(“We

decline to consider a bald legal proposition presented without

argument or development . . . .”). So we will not address the

following contentions that defendant raised in his opening brief.

         Defendant asserts that the trial court should not have

        followed section 16-10-110, C.R.S. 2016, and informed the

        jury that the prosecution was not seeking the death penalty

        as defendant’s punishment. He contends that this statute

        was unconstitutional as applied to him.

             As far as we can tell from the record, defendant did not

        challenge the statute as it applied to him in the trial court.

        Instead, he generally objected to the statute’s

        constitutionality. He said that “none of the cases that

        tested the statute in terms of constitutional fundamental

        fairness” had considered the statute when “the highest

        charge [was] a class two felony.” He added that, because he

        was not facing a capital charge, “injecting the term death

        penalty into any of the rhetoric surrounding this case”

        could impair his right to a fair trial. He did not expand on

        these statements. (Our supreme court has already rejected


                                  80
a facial challenge to the statute. People v. Smith, 

, 369 (Colo. 1993).)

     Defendant raised his as-applied challenges for the first

time on appeal. He contends that the statute was

unconstitutionally applied to him because the instruction

invited the jury to (1) speculate why the death penalty was

not sought; (2) presume that defendant may have “gotten off

easy[]”; and (3) convict with impunity given that “there was

no danger that [defendant] would be subject to the death

penalty.” But defendant (1) did not explain to the trial court

how the instruction deprived him of a fair trial; and

(2) admitted that he could not “tell the court what . . . effect

[the instruction] will [have] on the jury”; and (3) did not

describe any other constitutional problems that the statute

may have presented as applied to him.

     We will not consider these as-applied challenges

because defendant did not develop any facts to support

them in the trial court. See People v. Patrick, 

,

100 (Colo. 1989)(“We . . . stress that we cannot determine

the as-applied constitutionality of a statute based upon an


                           81
incomplete record of the facts.”); People v. Veren, 

, 140 (Colo. App. 2005)(“[I]t is imperative that the trial

court make some factual record that indicates what causes

the statute to be unconstitutional as applied.”).

 Defendant contends that the prosecution’s reference to

the death penalty in its opening statement violated a trial

court order. But he did not adequately develop this issue in

the opening brief.

 Defendant asserts that the court’s decision to allow

multiple witnesses to testify about the same information

violated CRE 403, and the sheer mass of the evidence

“overwhelmed and traumatized the jury,” thereby violating

defendant’s rights to due process and to a fair and impartial

jury. But this contention is entirely speculative, so we will

not address it.

 Defendant asserts that, by unduly lengthening the trial,

the cumulative evidence “skew[ed]” the jury pool “in favor of

those who would not be financially impacted by an

estimated nine-week trial.” The result of such “skewing”

was to deny defendant his constitutional right to a fair

                          82
          cross-section of the community. The record does not

          contain any proof of this assertion, and defendant only cites

          a law review article to support it.

¶ 200   The judgment of conviction is affirmed.

        JUDGE WEBB concurs in part and specially concurs in part.

        JUDGE DUNN concurs in part and dissents in part.




                                    83
          JUDGE WEBB, concurring in part and specially concurring in

  part.

¶ 201     In general, I concur with Judge Bernard’s opinion and

  specifically agree that the judgment of conviction should be

  affirmed. However, I write separately to offer two alternative

  reasons why defendant’s argument that the trial court effectively

  denied him counsel of choice by conditioning payment of costs,

  such as for experts and investigators, on public defender

  representation fails.

     First, David Lane, while acting as defendant’s pro bono

          counsel, invited any error.

     Second, where the General Assembly has limited the

          expenditure of public funds, under separation of powers

          principles that limitation cannot be circumvented by a chief

          justice directive (CJD).

¶ 202     Either of these reasons would avoid the novel constitutional

  analysis of the right to counsel that Judge Bernard presents, on

  which I take no position. See Developmental Pathways v. Ritter,

  

, 535 (Colo. 2008) (“[T]he principle of judicial restraint

  requires us to ‘avoid reaching constitutional questions in advance of

                                        84
  the necessity of deciding them.’” (quoting Lyng v. Nw. Indian

  Cemetery Protective Ass’n, 

, 445 (1988))).

                               I. Invited Error

                               A. Background

¶ 203   Shortly after the grand jury indicted defendant, the trial court

  held a hearing at which Mr. Lane spoke “on behalf of Aaron

  Thompson, who appears in custody.” But rather than entering a

  general appearance, Mr. Lane argued:

     “Mr. Thompson is indigent and [he] can’t pay for those

        ancillary services necessary to ensure that his rights under

        the 6th Amendment to the effective assistance of counsel are

        really protected.”

     “[I]f the defendant is indigent, regardless of whether counsel

        has been retained for a dollar or a million dollars or is

        volunteering, the court is obligated to provide indigent [sic]

        services to the indigent defendant.”

     “And the case in Colorado to the contrary stands alone in the

        country, and the case is cited as People v. Cardenas, [62] P.3d

        621 [Colo. 2002] . . . .”




                                     85
     “So what this Court has to wrestle with right now is, I am

        retained counsel, Cardenas says this Court has no authority

        to order ancillary services to be paid for by governmental

        funding for Mr. Thompson. But Mr. Thompson wants me to

        represent him, and under [United States v. Gonzalez-Lopez,

        

(2006)], that rises to the level of constitutional

        significance.”

     “[B]ecause Mr. Thompson cannot possibly get a fair trial

        without those [ancillary] services, if my being his lawyer will

        preclude that from happening, I, over objection, will step aside

        and ask that this Court appoint the Public Defender’s

        Office . . . .”

¶ 204   Mr. Lane ended with, “[t]he Court, under Cardenas, can’t give

  them to Mr. Thompson, so I’m throwing it now in the Court’s lap.”

  Then, when the trial court declined “the opportunity to overrule

  Cardenas,” it sought to confirm that Mr. Lane would not be entering

  an appearance for defendant. Mr. Lane replied, “That’s fair. And

  it’s over Mr. Thompson’s objection, Your Honor, under the 6th and

  14th Amendments to the United States Constitution and analogous

  provisions of the Colorado Constitution.”

                                     86
¶ 205   Then the public defender entered an appearance for

  defendant.

                                 B. Law

¶ 206   “Generally, the invited error doctrine precludes appellate

  review of errors created by a party.” People v. Gross, 

,

  ¶ 8. This is so because a defendant “may not complain on appeal of

  an error that he has invited or injected into the case; he must abide

  the consequences of his acts.” People v. Zapata, 

,

  1309 (Colo. 1989). Simply put, this doctrine “[o]perates to bar a

  disappointed litigant from arguing on appeal that an adverse

  decision below was the product of error, when that party urged the

  lower court to adopt the proposition now alleged to be error.”

  Horton v. Suthers, 

, 618 (Colo. 2002) (quoting Brett v.

  Great Am. Recreation, 

, 717 (N.J. 1995)). Even so,

  where “the error resulted from counsel’s oversight, . . . the appeal

  [i]s not precluded by the invited error doctrine.” Gross, ¶ 9.

¶ 207   But on the facts presented in Gross, the court held that invited

  error prevailed over alleged attorney oversight. It explained:

             In this case, however, defense counsel argued
             affirmatively for the initial aggressor
             instruction despite opposition by the


                                    87
             prosecution. The invited error doctrine bars
             precisely such an intentional, strategic
             decision. This is especially true where the
             prosecutor objected to the proposed
             instruction. If this court were to extend the
             attorney incompetence exception to deliberate,
             strategic acts by counsel, then trial courts
             would be required to evaluate the propriety of
             counsel’s trial strategy to determine whether to
             give a requested instruction. Such a result
             would be an untenable burden because
             assessing counsel’s strategy does not fall
             within the purview of the trial court. Instead,
             where counsel’s trial strategy is arguably
             incompetent, it should be challenged on
             grounds of ineffective assistance of counsel
             under Crim. P. 35(c).

  

11.

¶ 208   Since Gross, the supreme court has not addressed whether a

  deliberate act by counsel would alone trigger invited error, leaving

  the choice between strategy and incompetence for postconviction

  inquiry. A division of this court has read Gross “to distinguish

  errors based on trial counsel’s omission from those of commission

  in limiting appellate review.” People v. Foster, 

, ¶ 36.

  “While appellate courts may review the former for plain error, the

  latter generally will be unreviewable.” 

have

  agreed. See People v. Riley, 

, ¶ 9 (“In this case,

  defense counsel requested that the jury be instructed on the lesser


                                    88
  non-included offense of public indecency. He now complains that

  the evidence is insufficient to support the charge he requested.”);

  People v. Becker, 

, ¶ 20 (“The invited error doctrine

  does not, however, apply to errors that resulted from a defendant’s

  inaction rather than affirmative conduct.”); People v. Zadra, 

, ¶ 48 (“We may review errors based on trial counsel’s

  omissions for plain error, but errors created by trial counsel are not

  reviewable.”).

¶ 209   To be sure, as the dissent points out, “[t]rial judges are

  presumed to know the law and to apply it in making their

  decisions.” (Citation omitted.) But the dissent cites no Colorado

  authority, nor am I aware of any, using this presumption to trump

  invited error. Instead, the dissent quotes from People v. Lara, 

, 220 (Cal. Ct. App. 2001). But that court

  recognized “the court’s duty can only be negated in that ‘special

  situation’ in which defense counsel deliberately or expressly, as a

  matter of trial tactics, caused the error.” 

And in

  Colorado, as discussed above, counsel’s affirmative action obviates

  the tactical or inadvertence inquiry.




                                     89
¶ 210   “Whether the invited error doctrine applies here is an issue we

  consider de novo.” Becker, ¶ 20.

                               C. Application

¶ 211   Everyone would agree that Mr. Lane acted affirmatively in

  juxtaposing defendant’s need for public funding of expenses to

  obtain effective assistance of counsel against the Cardenas holding

  that such funding was available only to defendants who were

  represented by the public defender’s office. But did Mr. Lane inject

  the error defendant now argues on appeal — that the court should

  have ruled, sua sponte, that Cardenas has been superseded by

  Chief Justice Directive 04-04, Appointment of State-Funded

  Counsel in Criminal Cases and for Contempt of Court (amended

  Nov. 2014)? That CJD allows the judicial department to pay “a

  defendant’s court costs, expert witness fees, and/or investigator

  fees” if “[t]he defendant . . . is receiving pro bono, private counsel.”

  

V(D)(1)(b) (formerly § IV(D)(b)).

¶ 212   On the one hand, Mr. Lane did not mention the CJD. Even so,

  arguments raised for the first time on appeal are generally subject

  to plain error review. See Reyna-Abarca v. People, 

, ¶ 2

  (“We now conclude that unpreserved double jeopardy claims can be


                                       90
  raised for the first time on appeal, and appellate courts should

  ordinarily review such claims for plain error.”).

¶ 213   On the other hand, Mr. Lane presented the trial court with a

  dilemma: either decline to follow Cardenas because of an

  intervening Supreme Court decision and allow defendant to receive

  public funding for expenses while represented by Mr. Lane, or

  follow Cardenas and appoint the public defender to represent

  defendant so that defendant could receive such funding. Thus, Mr.

  Lane did not merely make one argument while failing to make

  another argument that could, with the invariably perfect wisdom of

  hindsight, be raised on appeal. Rather, in highlighting the

  consequences of following Cardenas, he told the trial court that

  there were only two possible resolutions.

¶ 214   To no one’s surprise, the trial court considered itself bound by

  Cardenas, as the later Supreme Court decision Mr. Lane cited did

  not address either Cardenas or the question of limiting public

  funding of expenses to indigent defendants who are publicly

  represented. See People v. Martinez, 

, 1202 (Colo.

  App. 2011) (“Defendant contends that the rationale of

  Hinojos-Mendoza may no longer apply after the decision by the


                                    91
  United States Supreme Court in Melendez-Diaz v. Massachusetts

  . . . . We disagree with the hypothetical suggestion attributed to the

  Supreme Court. Furthermore, we are bound by our supreme

  court’s explicit holdings.”); cf. Day v. Apoliona, 

, 1031

  (9th Cir. 2007) (district courts are bound by circuit authority unless

  there is clearly irreconcilable intervening Supreme Court authority).

¶ 215   In sum, Mr. Lane urged the court to conclude that the

  outcome of his request for public funds was binary: either

  Gonzalez-Lopez had abrogated Cardenas, or Cardenas precluded

  defendant from receiving public funds for trial expenses unless he

  chose public defender representation. The court accepted this

  argument and selected one of the two options that Mr. Lane

  presented. But defendant now rejects Mr. Lane’s argument that the

  law presented the court with only two options, and asserts that the

  trial court erred when it selected one of the options presented.

¶ 216   I discern no principled distinction between Mr. Lane’s

  either/or proposal and defense counsel tendering two different

  versions of a jury instruction on the same subject, then urging that

  controlling precedent required the trial court to pick one or the

  other. After all, “courts[] rely upon the presentation of oral


                                    92
  argument by well-prepared attorneys to assist . . . in reaching an

  appropriate resolution of the often difficult questions presented in

  the cases before [them].” In re Aguilar, 

, 818 (Cal.

  2004). Because Mr. Lane presented these options as mutually

  exclusive, the invited error doctrine prevents defendant from raising

  a third option on appeal. See Foster, ¶ 25; cf. United States v.

  Falcon, 462 F. App’x 866, 868 (11th Cir. 2012) (unpublished

  opinion) (After defendant acknowledged in the district court that the

  “loss amount” was either $1.4 or $1.7 million, his appellate

  argument that the loss amount was actually zero was barred by

  invited error doctrine.).

¶ 217   For these reasons, I would decline to review defendant’s new

  appellate argument that the CJD has superseded Cardenas.

        II. A CJD Cannot Supersede a Statutory Limitation on the
                    Expenditures of General Funds

¶ 218   Even if invited error does not prevent us from considering

  defendant’s argument that CJD 04-04 requires public funding of

  his defense expenses — a proxy for his counsel of choice argument

  — I would further conclude that, assuming this CJD gave defendant

  access to the public funding that he sought, it cannot supersede the



                                    93
  supreme court’s contrary statutory interpretation in Cardenas. Two

  observations book end this conclusion.

¶ 219   First, the allocation of state general revenues is a plenary

  power of the General Assembly. Colo. Gen. Assembly v. Lamm, 

(Colo. 1985) (holding that governor’s transfer of funds

  from executive departments for which funds were appropriated to

  other executive departments impermissibly infringed upon General

  Assembly’s plenary power of appropriation, and therefore did not

  fall within inherent administrative authority of Governor over state

  budget). But sometimes, the General Assembly does more by

  specifying just how those funds may be spent. Colo. Gen. Assembly

  v. Lamm, 

, 1381 n.5 (Colo. 1985) (“The right of the

  [l]egislature to control the public treasury, to determine the sources

  from which the public revenues shall be derived and the objects

  upon which they shall be expended, to dictate the time, the manner,

  and the means, both of their collection and disbursement, is firmly

  and inexpugnably established in our political system.” (quoting

  Colbert v. State, 

, 66 (Miss. 1905))) (emphasis added). And

  in Cardenas, our supreme court held that the General Assembly

  had done just that as to public funding of defense costs for


                                     94
  defendants who qualified for public 

-

  23.

¶ 220   Second, by statute, indigent defendants charged with a crime

  “are entitled to legal representation and supporting services at state

  expense.” § 18-1-403, C.R.S. 2016. In Cardenas, the supreme

  court addressed the trial court’s refusal to provide an interpreter at

  state 

. Although the defendant, who

  claimed to speak only Spanish, was represented by private pro bono

  counsel who did not, the supreme court affirmed the trial court in

  denying the indigent defendant’s request for these services. 

Cardenas acknowledged that “indigent defendants are entitled

  to state-paid legal representation and supporting services.” 

Still, it concluded that if an indigent defendant “wants the

  state to pay the costs of his attorney and supporting services, his

  only choice is to be represented by the public defender, or . . . a

  state-appointed alternate defense counsel.” 

(emphasis

  added).

¶ 221   The supreme court could have decided the case narrowly by

  deferring to trial court discretion. Instead, it came to this




                                     95
  conclusion more broadly, as a matter of statutory interpretation, in

  three steps.

       First, it noted the cross-reference in the statute to “in the

        manner provided for in articles 1 and 2 of title 21, C.R.S.”1 

       Second, it pointed out that “[t]he General Assembly has

        created an agency charged with providing legal representation

        and services to indigent defendants: the office of state public

        defender [which,] upon application from a defendant, is

        required to make a determination that the defendant is

        indigent before he may obtain the services of that office.” 

       Third, because the defendant “has not applied for the services

        of the public defender,” instead “cho[osing] to be represented

        by [pro bono counsel],” it held that he had placed himself on a

        different path for obtaining support services. 

  But despite this statutory interpretation, can a later CJD

  create a hybrid path to the same end? Specifically, CJD 04-04


  1See §§ 21-1-101 to -106, C.R.S. 2016 (public defender);
  §§ 21-2-101 to -107, C.R.S. 2016 (alternate defense counsel).

                                      96
  section V(D)(1)(b) permits public funding of expenses when “[t]he

  defendant is indigent and receiving pro bono, private counsel.” I

  would say “no,” for the following reasons.

¶ 223   “In Colorado, the General Assembly has retained the power to

  formulate the state’s budget.” Colo. Gen. Assembly v. Owens, 

, 265 (Colo. 2006). And, “‘[n]o moneys in the state treasury

  shall be disbursed . . . except upon appropriations made by law, or

  otherwise authorized by law.’” People v. Nelson, 

, ¶ 38

  (quoting Colo. Const. art. V, § 33), cert. granted sub nom. Nelson v.

  Colorado, 579 U.S. __, 

(2016). The judicial

  department enjoys no exception — a court must “follow the

  statutes’ instructions on how that money may be used.” 

39.

¶ 224   As interpreted in 

, the General

  Assembly has provided a framework to fund representation and

  support costs for indigent defendants.2 “[W]e are bound by the



  2 Although the judicial department collects some revenue directly,
  such as through court filing fees, Chief Justice Directive 04-04,
  Appointment of State-Funded Counsel in Criminal Cases and for
  Contempt of Court (amended Nov. 2014), does not indicate that any
  of the funding for expanded support services comes from such
  sources, as opposed to from the department’s general fund budget
  allocation. See People v. Orozco, 

, 476 (Colo. App.

                                    97
supreme court’s interpretation of [a] statute.” People v. Nerud, 

, ¶ 20. But by authorizing the expenditure of state funds on

defendants who are represented by separate counsel, the CJD

exceeds the statutory boundaries recognized in Cardenas.3



2009) (“Under CJD 04-04 § IV(D)(c) [currently § V(D)(1)(c)], payment
from the Judicial Department’s budget is appropriate.”). Even so,
the dissent suggests that the record is insufficiently developed to
conclude that defense costs come from general funds allocated to
the judicial department. But Thompson’s supplemental brief did
not raise this concern. To the contrary, it said,
          [i]n the fiscal year 2006-2007, the year
          relevant to this case, the General Assembly
          appropriated funds for ‘the ordinary operating
          costs of the executive, legislative and judicial
          departments of the state.’ See H.B. 06-1385,
          65th Gen. Assemb. 2d Reg. Sess., Ch. 394 at
          2498 (2006). Included within the
          appropriations is a fund for ‘trial court
          programs,’ which later appropriations clarify
          as including ‘Court Costs, Jury Costs, and
          Court-appointed Counsel.’ See H.B. 06-1385
          at 2624-25; H.B. 16-1243, 7th Gen. Assemb.,
          2d Reg. Sess., Ch. 375 at 16 (2016). Thus, the
          legislature specifically granted the judicial
          department an appropriation to fund trial
          court programs, and did not place limitations
          on the funding of indigent defense.

3Apart from separation of powers, where a statute provides a
means for doing something, principles of statutory interpretation
disfavor reading into it an entirely different means for doing the
same thing. See Hiner v. Johnson, 

, ¶ 19 (“Because
C.R.C.P. 102(a) expressly refers to the property of defendants, but

                                 98
¶ 225   To be sure, the Chief Justice is the executive head of the

  judicial department and “implements her administrative authority

  by means of Chief Justice Directives, under the supreme court’s

  general superintending power over the court system.” Office of

  State Court Adm’r v. Background Info. Servs., Inc., 

,

  430-31 (Colo. 1999). However, this authority has limits. Cf. Colo.

  Common Cause v. Gessler, 

, ¶ 18 (“[An] agency does

  not have the authority to promulgate rules that modify or

  contravene statutory or constitutional provisions.”), aff’d, 

; Colo. Consumer Health Initiative v. Colo. Bd. of Health, 

, 528 (Colo. App. 2010) (An exercise of administrative authority

  “may not modify or contravene an existing statute, and any rule

  that is inconsistent with or contrary to a statute is void.”).

¶ 226   “[S]eparation of powers requires that the co-equal branches of

  government, the executive, legislative, and judicial, exercise only



  does not refer to the property of plaintiffs in cases in which
  defendants do not assert a counterclaim, we apply the canon of
  statutory interpretation expressio unius exclusio alterius — ‘the
  inclusion of certain items implies the exclusion of others.’”) (citation
  omitted); see also Harrah v. People ex rel. Attorney Gen. of Colo., 

, 426, 

, 1038 (1952) (“[W]e cannot by
  implication read into it words that are not present, nor supply
  remedies not clearly provided by language employed in the act.”).

                                     99
  their own powers and not usurp the powers of another co-equal

  branch of government.” People v. Hollis, 

, 442 (Colo.

  App. 1983). That said, “the judicial branch of government

  possesses the inherent power to determine and compel payment of

  those sums of money which are reasonable and necessary to carry

  out its mandated responsibilities.” Pena v. Dist. Court, 

, 956 (Colo. 1984). But I discern no basis for concluding,

  especially after Cardenas, that “mandated responsibilities” of the

  judicial branch include providing public funding to privately

  represented, indigent defendants who can obtain that funding

  merely by accepting public defender or alternate defense counsel

  representation.

¶ 227   In resolving conflicts between statutes and court rules, the

  distinction between procedure — where the rule controls — and

  substance — where the statute controls — marks the boundary.

  See People v. Prophet, 

, 62 (Colo. App. 2001). And “rules

  adopted to permit the courts to function efficiently are procedural.”

  

  In contrast, substantive law creates, defines, and regulates

  rights and duties. 

here, section 18-1-403 regulates


                                   100
  an indigent defendant’s right to a state-funded defense. For such

  defendants, that right has constitutional significance. Thus,

  because section 18-1-403 deals with more than mere procedure or

  court efficiency, the CJD must yield to the statute.

¶ 229   In sum, because the General Assembly has chosen to restrict

  disbursement of general funds for support services to indigent

  defendants who are publicly represented, in my view a CJD may not

  provide for disbursement of the same funds where representation is

  by private pro bono counsel.

¶ 230   For the foregoing reasons, I concur with Judge Bernard that

  the judgment of conviction should be affirmed.




                                   101
        JUDGE DUNN, concurring in part and dissenting in part.

¶ 231   On a fall day in 2005, Mr. Thompson reported that his

  daughter, A.T., had run away. Early on, however, the police began

  to suspect that A.T. was actually dead and that Mr. Thompson was

  involved in her death. During the two-year police investigation that

  followed, David Lane, a private defense attorney, represented Mr.

  Thompson. After a grand jury indicted Mr. Thompson, the trial

  court concluded that, should Mr. Lane continue to represent Mr.

  Thompson as private counsel, the court had no authority to

  authorize state-funded support services. The trial court was

  mistaken. The upshot of this mistake was that — although Mr.

  Lane was Mr. Thompson’s counsel of choice — Mr. Lane ceased

  representing Mr. Thompson.

¶ 232   Because I conclude that the trial court had discretion to

  consider and authorize the requested support services, I do not see

  this case as presenting a choice between competing constitutional

  rights. Colorado does not require an indigent defendant to choose

  between ancillary support services and his counsel of choice. Much

  to the contrary, an indigent defendant in this state may be

  represented by a private, pro bono attorney and still receive


                                   102
  state-funded support services. Given this, I find it unnecessary to

  tread the same constitutional path as my valued colleague writing

  for the majority. My focus is admittedly much narrower. In my

  view, because the trial court erred in failing to recognize its

  authority to consider and authorize the requested support services,

  Mr. Thompson effectively was deprived of his Sixth Amendment

  right to the counsel of his choice. Mindful that my colleagues

  disagree with this conclusion, albeit for different reasons, I

  respectfully dissent from Part II of the majority opinion.

          I.   The Request for State-Funded Support Services

¶ 233   At Mr. Thompson’s first court appearance, Mr. Lane entered

  his appearance “with an asterisk” and explained that he had been

  representing Mr. Thompson “for about two years,” Mr. Thompson

  wanted Mr. Lane to continue to represent him, and Mr. Lane was

  willing to continue to do so. Mr. Lane then asked the court to

  authorize state-funded expert and investigative services, which he

  contended were necessary to represent Mr. Thompson effectively.

  But, he continued, “[I]f this [c]ourt won’t do that, I’m registering an

  objection under the 6th and 14th Amendments to the United States

  Constitution.” And he stated that, “over objection, [he would] step


                                    103
  aside” to allow Mr. Thompson these services through

  court-appointed counsel.

¶ 234   Despite Mr. Lane’s plea for state-funded support services, he

  also told the court that it did not have the authority to grant his

  request because the Colorado Supreme Court prohibited it under

  People v. Cardenas, 

(Colo. 2002). Still, Mr. Lane

  suggested the trial court could authorize the services because

  Cardenas was inconsistent with an intervening United States

  Supreme Court case, United States v. Gonzalez-Lopez, 

  (2006), which, he asserted, recognized the constitutional

  significance of depriving a defendant of his counsel of choice.

¶ 235   Mr. Lane summarized his request for state-funded services by

  arguing that, “under Gonzale[z]-Lopez,” Mr. Thompson “wants me to

  be his lawyer of constitutional significance.” But, Mr. Lane added,

  “[Mr. Thompson] needs these [state-funded support] services,” and

  “[t]he [c]ourt, under Cardenas, can’t give them to [him].” As a

  result, Mr. Lane finished, “I’m throwing it now in the [c]ourt’s lap.”

¶ 236   Thanking Mr. Lane for “the opportunity to overrule Cardenas,”

  the trial court “respectfully declined.” The court then stated that it

  was “not going to rule on the issue of ancillary services.” And the


                                    104
  court stated its understanding that, “based on [its] nonruling on

  ancillary services, [Mr. Lane would] not enter[] [his] appearance at

  that point, understanding [Mr. Lane had] made [his] record.” Mr.

  Lane acknowledged the court’s summary was “fair” but again

  reminded the court that it was “over Mr. Thompson’s objection . . .

  under the 6th and 14th Amendments to the United States

  Constitution and analogous provisions of the Colorado

  Constitution.”

¶ 237   As it goes, I find no fault in the trial court’s view of Cardenas.

  Cardenas considered whether a trial court abused its discretion in

  declining to authorize state-funded interpreter services to a

  defendant represented by private, pro bono counsel. 

. In doing so, it construed Colorado’s indigent defense

  services statute, section 18-1-403, C.R.S. 2016.1 And it concluded



  1 Colorado’s indigent defense services statute states that indigent
  defendants charged with a crime “are entitled to legal
  representation and supporting services at state expense.”
  § 18-1-403, C.R.S. 2016. Unlike other indigent defense services
  statutes, Colorado’s statute does not expressly prohibit an indigent
  defendant represented by private counsel from receiving
  state-funded support services. Cf. Utah Code Ann. § 77-32-303(2)
  (West 2012) (Where a defense services provider is available, a court
  “may not order” and “may not provide defense resources for a

                                     105
  that, under that statute, if an indigent defendant “wants the state

  to pay the costs of his attorney and supporting services, his only

  choice is to be represented by the public defender, or . . . a

  state-appointed alternate defense counsel.” 

.

¶ 238   So if Cardenas were the end of the story, I would agree with

  the majority’s outcome. After all, neither this court nor the trial

  court can overrule Cardenas.

¶ 239   But Cardenas should not have ended the inquiry. After

  Cardenas was decided — but several years before Mr. Thompson’s

  indictment — the Chief Justice of the Colorado Supreme Court

  issued a directive expanding the circumstances under which

  state-funded support services may be provided to indigent

  defendants. See Chief Justice Directive 04-04, Appointment of

  State-Funded Counsel in Criminal Cases and for Contempt of

  Court, § V(D) (amended Nov. 2014) (CJD 04-04) (formerly § IV(D));

  see also People v. Stroud, 

, ¶ 8 (recognizing that CJD




  defendant who has retained private counsel” except in
  circumstances outlined in the statute.). It is simply silent on the
  issue.

                                    106
  04-04 “expanded the circumstances in which support services may

  be provided”).

¶ 240   The CJD plainly provides that “[i]n certain circumstances, a

  defendant’s court costs, expert witness fees, and/or investigator

  fees may be paid by the Judicial Department even though the

  defendant is not represented by state-funded counsel.”2 CJD 04-04

  § V(D). The directive allows courts to authorize the judicial

  department to pay for these support services, if any of the following

  applies:

             a) [t]he defendant is indigent and proceeding
             pro se;

             b) [t]he defendant is indigent and receiving pro
             bono, private counsel;

             c) [t]he defendant is receiving private counsel
             but becomes indigent during the course of the
             case, and the court has determined that the
             defendant lacks sufficient funds to pay for
             court costs and that it would be too disruptive
             to the proceedings to assign the Public
             Defender or Alternate Defense Counsel to the
             case.

  

its 2004 inception, CJD 04-04 has allowed courts to
  authorize state-funded support services for indigent defendants
  represented by pro bono, private counsel.

                                   107
¶ 241   It is hardly remarkable to conclude that a trial court’s failure

  to recognize its discretion under CJD 04-04 is an abuse of

  discretion. Two divisions of this court have already so concluded.

  Stroud, ¶ 12; People v. Orozco, 

, 476 (Colo. App. 2009).

  In both cases, the defendants were indigent and represented by

  private counsel. Stroud, ¶ 10; 

. Each

  defendant requested state-funded expert witness services. Stroud,

  ¶ 10; 

. And each trial court denied the

  requests under the mistaken belief that they had no authority to

  grant the requested state-funded services. Stroud, ¶ 11; 

. On appeal, separate divisions of this court held

  that the denial of the requested services without considering CJD

  04-04 was an abuse of discretion. Stroud, ¶ 12; 

. Because each defendant continued with his private attorney,

  this court reviewed the denial of the requested support services for

  constitutional harmless error. Stroud, ¶ 14; 

. In Stroud, the error was constitutionally harmless. Stroud,

  ¶ 17. In Orozco, it was not, and the defendant’s convictions for

  incest and sexual assault on a child were reversed. 

.


                                    108
¶ 242   Consider then Mr. Lane’s statements to the trial court that:

  (1) he was Mr. Thompson’s retained counsel;3 (2) he had been

  representing Mr. Thompson “for about two years”; (3) Mr.

  Thompson was indigent but wanted Mr. Lane to continue

  representing him; (4) he would continue to represent Mr.

  Thompson; but (5) in order to do so effectively, he needed the court

  to authorize state-funded support services. These statements

  should have alerted the trial court that CJD 04-04 was at play and

  that it allowed the court to consider — and, if appropriate, to

  authorize — Mr. Lane’s request for state-funded services.

¶ 243   True, neither Mr. Lane nor the prosecution brought CJD

  04-04 to the trial court’s attention. But that was also true in Stroud

  and implied in Orozco. See Stroud, ¶ 12 (acknowledging the parties

  did not bring CJD 04-04 to the court’s attention); 

(concluding that the trial court was mistaken that “no

  mechanism existed under the law to provide the necessary funds”

  for state-funded expert witness services). Put simply, the

  conclusion that the trial court abused its discretion is no different


  3Although Mr. Lane used the word “retained,” the parties agree that
  Mr. Lane was representing Mr. Thompson pro bono.

                                    109
  here than it was in Stroud and Orozco. See People v. Darlington,

  

, 232 (Colo. 2005) (The “failure to exercise discretion is

  itself an abuse of discretion.”); accord DeBella v. People, 

, 668 (Colo. 2010).4

¶ 244   I am tempted to agree with my respected specially concurring

  colleague’s conclusion that Mr. Lane invited any error in framing

  the issue the way he did. But for two reasons, I can’t. First, Mr.

  Lane did not affirmatively misstate the law. His summary of

  Cardenas was accurate. The most I can glean from the record is

  that he was either unaware of CJD 04-04 or neglected to raise it.

  But errors of omission are reviewable under Crim. P. 52(b). See

  People v. Gross, 

, ¶ 16 (stating that errors resulting

  from the attorney’s “oversight or inadvertent omission” are not

  precluded under the invited error doctrine but are reviewed for

  plain error); People v. Foster, 

, ¶¶ 34-40


  4 Had the trial court recognized its discretion, it could have then
  considered whether Mr. Lane’s general request was sufficient to
  show that the requested support services were reasonable,
  necessary, and helpful to the defense. See People v. Mossmann, 

, 171 (Colo. App. 2000). Given that the court did not
  recognize or exercise its discretion, I cannot agree with the People
  that because Mr. Lane’s showing was insufficient the trial court did
  not abuse its discretion.

                                   110
  (distinguishing between errors of commission and those of omission

  and concluding the latter are reviewable for plain error).

¶ 245    Second, defense counsel’s inadvertence or ignorance of the law

  does not relieve a trial court from knowing and applying the law.

  People v. White, 

, 440 (Colo. 1994) (“Trial judges are

  presumed to know the law and to apply it in making their

  decisions.”) (citation omitted); see also People v. Lara, 

201, 220 (Cal. Ct. App. 2001) (Absent some evidence of

  deliberate trial tactics, “[e]ven in the context of invited error, . . . the

  trial court rather than defense counsel has the ultimate duty to

  apply the correct law.”). Because Chief Justice Directives are an

  expression of judicial branch policy and must be “given full force

  and effect in matters of court administration,” Hodges v. People,

  

, 926 (Colo. 2007), I presume too that trial courts

  know what the directives say. As well, an attorney’s ignorance or

  inadvertence should not excuse a trial court from knowing the

  scope of its discretion. See, e.g., Stroud, ¶ 12; 

.

¶ 246    One final observation. Although my specially concurring

  colleague questions the Chief Justice’s authority to issue CJD


                                      111
04-04 section V(D), the People did not initially mount a

constitutional — or any — challenge to the legality of CJD 04-04.5

Because no party raised or argued that the CJD violates separation

of powers principles (or is inconsistent with section 18-1-403),

either at trial or in the original appellate briefs, I would reserve

consideration of such issues for another case and another time.6

E.g., People v. Lybarger, 

, 915 (Colo. 1985) (It is

“[a]xiomatic to the exercise of judicial authority . . . that a court

should not decide a constitutional issue unless and until such

issue is actually raised by a party to the controversy and the

necessity for such decision is clear and inescapable.”); People v.

Bondsteel, 

, ¶ 30 (cert. granted Oct. 31, 2016) (same).



5 After oral argument, and on its own initiative, this court invited
the parties to respond to a limited inquiry about CJD 04-04.
6 Because the parties did not raise the issue, the record leaves

unanswered questions such as: (1) What funds are used to pay
support services? (2) If paid with judicial department funds, are
those funds general funds? (3) If so, are funds paid for
state-funded support services reasonable and necessary to carry
out the judicial department’s mission? (4) If they are reasonable
and necessary, then what is the impact of our supreme court’s
conclusion that in a separation of powers battle involving the
payment “of those sums of money which are reasonable and
necessary to carry out its mandated responsibilities[,]” the judiciary
wins? See Pena v. Dist. Court, 

, 956-57 (Colo. 1984).

                                   112
¶ 247   At the end of it all, the trial court’s misapprehension of its

  authority to consider and authorize state-funded support services

  effectively resulted in a deprivation of Mr. Thompson’s counsel of

  choice. The only remaining question is whether the court’s error

  requires reversal.

         II.   Deprivation of Mr. Thompson’s Counsel of Choice

¶ 248   The Sixth Amendment right to counsel, along with the right to

  counsel of one’s choice, form the “root meaning of the constitutional

  guarantee” of the Sixth Amendment. 

. When a defendant is deprived of these rights, no further

  showing of prejudice is necessary — the deprivation of counsel of

  one’s choice is the loss of a constitutional right. See 

see

  also Anaya v. People, 

, 783 (Colo. 1988).

¶ 249   I, of course, agree that an indigent defendant does not have

  the same range of choices as a defendant who can pay. For

  instance, an indigent defendant may not insist on representation by

  an attorney that he cannot afford or who declines to represent him.

  Wheat v. United States, 

, 159 (1988). Nor may an

  indigent defendant select his court-appointed counsel. E.g.,

  

. Once an indigent defendant has


                                     113
  obtained counsel, however, the defendant’s choice of continued

  representation by appointed counsel is “afforded great weight.”

  People v. Nozolino, 

, ¶ 17; accord Rodriguez v. Dist.

  Court, 

, 707 (Colo. 1986); see also Williams v. Dist.

  Court, 

, 555 (Colo. 1985) (“[Indigent defendants] are

  entitled to continued and effective representation by court

  appointed counsel . . . .”); People v. Isham, 

, 193 (Colo.

  App. 1995) (“When counsel is retained, there is a presumption in

  favor of a defendant’s choice of counsel.”).

¶ 250   But what happens when an indigent defendant secures private

  counsel at no cost to the state? More to the point, does the Sixth

  Amendment right to counsel of choice attach? I think so. Once the

  parties enter an attorney-client relationship, I see no material

  difference between an indigent defendant and one who can pay.

  See Ingram v. Justice Court, 

, 655 (Cal. 1968) (“[O]nce

  counsel is appointed or undertakes to represent an indigent

  defendant, whether it be the public defender or a volunteer private

  attorney, the parties enter into an attorney-client relationship which

  is no less inviolable than [if] counsel had been retained.”) (citation

  omitted). The attorney-client relationship is real even if the


                                    114
  defendant is impoverished. And in such a scenario, the indigent

  defendant’s choice of counsel has the same constitutional

  significance as a defendant with the ability to pay. I can’t reconcile

  a different outcome with the Supreme Court’s declaration that “the

  Sixth Amendment guarantees a defendant the right to be

  represented by an otherwise qualified attorney . . . who is willing to

  represent the defendant even though he is without funds.” Caplin

  & Drysdale, Chartered v. United States, 

, 624-25

  (1989); accord 

. Taking that

  statement at face value, I conclude that if a private attorney agrees

  to represent an indigent defendant pro bono, the Sixth Amendment

  right to counsel of choice attaches.

¶ 251   And in this view, I do not stand entirely alone. See Robinson v.

  Hotham, 

, 1133 (Ariz. Ct. App. 2005) (concluding that

  where an indigent defendant is able to obtain representation by

  non-publicly funded counsel, he possesses “rights under the Sixth

  Amendment”); English v. Missildine, 

, 294 (Iowa

  1981) (“[N]o reason exists for depriving an indigent of the same right

  of choice [of counsel] as a person of means when the indigent is

  able to obtain private counsel without public expense.”); State v.


                                   115
  Sims, 

, 722 (La. 2007) (“The right to private, non-

  appointed counsel of choice does not distinguish between a paid

  attorney and a pro bono lawyer.”); State v. Jones, 

,

  977 (La. 1998) (same); State v. Brown, 

, 759 (N.M.

  2006) (“[A]n indigent defendant represented by pro bono counsel, is

  entitled . . . to the constitutional right to counsel.”); accord Moore v.

  State, 

, 349-366 (Md. 2005) (Bell, C.J., dissenting).

¶ 252   Because the trial court misapprehended its discretionary

  authority to award state-funded support services, Mr. Lane

  discontinued his representation of Mr. Thompson. The court’s error

  therefore effectively denied Mr. Thompson his Sixth Amendment

  right to his counsel of choice. The United States Supreme Court

  tells us that this error is structural and requires reversal.

  

.

¶ 253   Make no mistake; I recognize the evidence overwhelmingly

  showed that Mr. Thompson horribly abused these children and that

  he conspired with Ms. Lowe to commit the crimes of which he was

  convicted. The Sixth Amendment to the United States Constitution,

  however, applies not just to the innocent.




                                     116
¶ 254   Knowing that under my analysis a retrial would be necessary

  and that many of Mr. Thompson’s remaining issues would likely

  arise on remand, I otherwise agree in full with my colleagues’

  considered resolution of those issues.

¶ 255   From Part II of the majority opinion, I respectfully dissent.




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