The People of the State of Colorado, Plaintiff-Appellee, v. Garry W. Patterson, Defendant-Appellant. (2022)

JUDGMENT AFFIRMED

¶ 1 Defendant, Garry W. Patterson, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child by one in a position of trust — pattern of abuse, sexual assault on a child by one in a position of trust, sexual assault on a child, and two counts of sexual exploitation of a child. We affirm.

I. Factual and Procedural Overview

¶ 2 The victim, A.R., and her mother lived with Patterson during the mother's two-year relationship with him. After finding websites on Patterson's phone containing child pornography, A.R.’s mother asked A.R. whether Patterson had ever touched her inappropriately, and A.R. said he had. A.R. repeated these accusations during a forensic interview the following day.

¶ 3 At trial, Patterson did not testify or present any witnesses. The jury found him guilty of all charges. The court adjudicated Patterson as a habitual sex offender based on a prior conviction and sentenced him to concurrent sentences of thirty-six years to life and thirty-six determinate years.

¶ 4 On appeal, Patterson contends that the trial court committed reversible error by (1) giving inadequate instructions to the venire and jury, (2) permitting numerous instances of prosecutorial misconduct, and (3) limiting his right to cross-examine a witness. We disagree.

II. Venire and Jury Instructions

¶ 5 Patterson argues that the trial court violated Crim. P. 24 by failing to accurately inform the venire and the impaneled jury of (1) the presumption of innocence, (2) a defendant's right not to testify, and (3) definitions of offense-specific elements and relevant special terms. We do not see error warranting reversal.

A. Standard of Review

¶ 6 A trial court has a duty to properly instruct the jury on the applicable law. People v. Jones, 2018 COA 112, ¶ 24. We review de novo whether a trial court carried out this duty. Tibbels v. People, 2022 CO 1, ¶ 22. To the extent interpretation of a court procedural rule is required, that raises a question of law that we review de novo. Boudette v. State, 2018 COA 109, ¶ 20.

¶ 7 We review all nonstructural errors “that were not preserved by objection for plain error.” People v. Walker, 2022 COA 15, ¶ 57 (quoting Hagos v. People, 2012 CO 63, ¶ 14). Because Patterson did not raise his objections based on Rule 24 in the trial court, we review any error for plain error.¹ Plain error occurs when there is an obvious error “that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Cardman v. People, 2019 CO 73, ¶ 19. To be plain, “an error must ‘be so obvious’ at the time it is made ‘that a trial judge should be able to avoid it without the benefit of an objection.’ ” Id. at ¶ 34 (citation omitted). Thus, to be obvious, an error generally “must contravene (1) a clear statutory command; (2) a well-settled legal principle; or (3) Colorado case law.” Id. (citation omitted).

B. Presumption of Innocence

¶ 8 The Due Process Clauses of the United States Constitution and Colorado Constitution require that a defendant in a criminal trial be presumed innocent until proved guilty. Garcia v. People, 2022 CO 6, ¶ 15. But a jury instruction on the presumption of innocence is not constitutionally required in every case. Kentucky v. Whorton, 441 U.S. 786, 789 (1979) (“[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.”).

¶ 9 Even so, Rule 24(a)(2)(v) requires a judge to explain to prospective jurors “[g]eneral legal principles applicable to the case,” including the “presumption of innocence.” Once the jury is impaneled, “the judge shall again explain in more detail the general principles of law applicable to criminal cases.” Crim. P. 24(a)(5).

¶ 10 Patterson contends that the trial court's instructions to the venire and the impaneled jury did not adequately explain the presumption of innocence before the presentation of evidence. He says the instructions violated Rule 24 because the court did not convey that the presumption remains with a defendant throughout the trial. We disagree.

¶ 11 The combination of the court's advisements to the venire effectively explained the presumption. The court advised, “[T]he defendant is presumed innocent ․ What [that] means is that the defendant doesn't have to do anything. The defendant's lawyer doesn't have to do anything.” After explaining that the prosecution bore the burden to prove the charges beyond a reasonable doubt, the court emphasized that (1) the “mere fact that the defendant is charged with these crimes is not evidence” and (2) evidence “comes only” from the testimony and exhibits admitted at trial.

¶ 12 Later, in a colloquy with a prospective juror, the court rejected the “presumption that victims are telling the truth,” reiterating that “we have the opposite presumption ․ the presumption that the [p]rosecution has to prove that this happened.” The court also sustained an objection to the prosecutor's comment that the presumption applies “[u]ntil you get back in that room.” The court clarified for the venire that “[t]he presumption of innocence continues throughout this procedure unless and until you conclude that the People have proved any charges beyond a reasonable doubt.”

¶ 13 The court repeated and “explain[ed] in more detail” these principles when addressing the impaneled jury before the presentation of evidence. Crim. P. 24(a)(5). The court admonished the jurors as follows:

• The evidence would be presented one witness at a time, and it would be unfair to both sides “if you were deciding things too soon.”

• The jurors must engage in “intelligent listening” as the evidence is presented, but “we just don't want you to take the next step, which is to make judgments or reach conclusions about this case.”

• “[D]on't decide the case in your own minds,” and “[y]ou may not discuss this case with anyone until [twelve] of you are back there in the jury room beginning your deliberations.”

• “The [d]efendant doesn't have to do anything in this case, as you know, because the burden of proof is entirely on the [p]rosecution.”

• The jury must “decide the case based on the evidence presented here.”

¶ 14 Considered together, the court's instructions sufficiently conveyed the presumption of innocence principle. See Taylor v. Kentucky, 436 U.S. 478, 483-85 (1978) (recognizing that the presumption of innocence has two functions: (1) describing the prosecution's duty to produce evidence of guilt and convince the jury beyond a reasonable doubt, and (2) cautioning the jury that the charge is not evidence and the jury must base its decision solely on the evidence at trial); United States v. Garcia, 439 F.3d 363, 366-67 (7th Cir. 2006) (same).

¶ 15 True, as Patterson points out, the court's instructions on the presumption of innocence did not track verbatim the “Introductory Remarks” suggested in the model jury instructions. See COLJI-Crim. B:01 (2021). The model instructions, however, are not law and are not binding, People v. Flockhart, 2013 CO 42, ¶ 12, and Patterson cites no authority for the proposition that the court must use the model instruction's talismanic language when explaining the presumption of innocence. Contrary to Patterson's claim, the court's instructions here adequately explained that the presumption remains throughout the trial unless and until the jurors decide the defendant is guilty beyond a reasonable doubt after considering all the evidence and deliberating together in the jury room.

¶ 16 Finally, the written instructions later given to the jury included the model presumption of innocence instruction, and we presume the jury followed those instructions. See People v. Dominguez-Castor, 2020 COA 1, ¶ 91.

¶ 17 Given all this, we see no error, much less plain error.

C. Right Not to Testify

¶ 18 Patterson contends that the trial court violated Rule 24 by failing to inform the venire or the impaneled jury of a defendant's right not to testify and that the jury cannot infer guilt from a defendant's refusal to testify. We are not persuaded.

¶ 19 The Fifth Amendment and the Colorado Constitution provide protections against compulsory self-incrimination, including defendants’ right not to testify against themselves. U.S. Const. amend. V; Colo. Const. art. II, § 18; Deleon v. People, 2019 CO 85, ¶ 17. A court must instruct the jury that it cannot consider the defendant's refusal to testify in reaching a verdict — also known as a no-adverse-inference instruction — when requested by the defendant. Deleon, ¶ 17.

¶ 20 Although Rule 24(a)(2) refers to the presumption of innocence, the rule does not explicitly mention that a trial court must instruct jurors on the right not to testify. Assuming the rule's reference to “[g]eneral legal principles” includes a defendant's right not to testify, however, we conclude that the court's conversations with the venire and the jury here explained this right.

¶ 21 The court explained to the venire that “the defendant doesn't have to do anything” and “the defendant has no burden at all.”² When speaking to the impaneled jurors before opening statements, the court repeatedly reminded them that the defendant did not need to do anything in the case, including call witnesses.

¶ 22 We conclude that the above comments adequately conveyed that Patterson did not have to testify. Even if they fell short, however, we would not discern plain error given the court's later instructions to the jury. After the prosecution rested its case, the court again told the jury, “You've heard me say many times that a defendant in a criminal case has no obligation to do anything, including call any witnesses.” And the court expressly advised the jury in the final written instructions that “[e]very defendant has a constitutional right not to testify.”

¶ 23 As for a no-adverse-inference instruction, Patterson did not ask the court to give such an instruction to the venire or impaneled jury before the presentation of evidence. Hence, the court was not required to give one then. See id. at ¶¶ 17, 19, 25.

¶ 24 Contrary to Patterson's view, Rule 24(a)(2)(v) does not require a no-adverse-inference instruction in every case. The rule does not mention this principle; so a court must explain it to prospective jurors only if it qualifies as a “matter[ ] that jurors will be required to consider and apply in deciding the issues.” Crim. P. 24(a)(2)(v). Before the presentation of evidence, however, a court does not know whether the jurors will be required to consider and apply the no-adverse-inference principle because the court does not know whether the defendant will testify. If Patterson had chosen to testify, for instance, the jurors here would not have needed to consider this principle at all. Rule 24 did not, therefore, require a no-adverse-inference instruction in the absence of Patterson's request for that instruction.

¶ 25 Furthermore, the court read the model no-adverse-inference instruction to the jury before closing arguments and included it in the written instructions. We presume the jury followed that instruction. See Deleon, ¶ 29. As a result, even if we perceived an error in omitting the instruction during voir dire, we would not find plain error. Cf. id. at ¶¶ 26-28 (holding that a no-adverse-inference instruction given during the early stages of the trial process was inadequate where no such instruction was given prior to closing arguments or in the written instructions).

D. Offense Elements and Special Terms

¶ 26 Next, Patterson says the trial court violated Rule 24 by failing to (1) explain to the venire the elements of the charged crimes and (2) provide the impaneled jury with definitions of relevant special terms before presentation of the evidence. We agree with Patterson's second point but conclude that the error does not require reversal under the plain error standard.

1. Elements of the Crimes

¶ 27 Rule 24 requires a court to instruct prospective jurors on the “elements of charged offenses.” Crim. P. 24(a)(2)(v).

¶ 28 Here, the court informed the venire of the elements, despite not referring to them as such. The court read each charge to the venire at the start of voir dire. The text of the charges included the elements of the crimes.³ Thus, reading the charges effectively conveyed the elements to the venire so the potential jurors could understand the substance of the offenses. Because this satisfied the purpose of Rule 24, we see no error.

2. Definitions of Technical or Special Terms

¶ 29 Under Rule 24, once the jury is impaneled, a court shall explain “definitions of technical or special terms expected to be used during the presentation of the case.” Crim. P. 24(a)(5).

¶ 30 In this case, there were some special terms relevant to the charges, but the court did not provide definitions of them to the impaneled jury before presentation of the case. Those terms included “position of trust,” “pattern of sexual abuse,” “sexual contact,” and “sexually exploitive material,” all of which are statutorily defined terms. See §§ 18-3-101(2.5), 18-3-401(2.5), (4), 18-6-403(2)(j), C.R.S. 2022. For purpose of our analysis, we assume that the failure to give these definitions to the jury before the presentation of evidence was obvious error. See Cardman, ¶ 34 (holding that an error may be obvious if it contravenes a “clear statutory command”); People v. Hernandez, 2019 COA 111, ¶ 33 (extending this principle to violation of a court rule “because we cannot discern a principled basis on which to afford court rules less weight than statutes in determining obviousness”).

¶ 31 Still, this error was not sufficiently prejudicial to warrant reversal. The court gave the jury definitions of the special terms in the written instructions before deliberations, and we presume the jury followed those instructions. See Dominguez-Castor, ¶ 91. This sufficiently remedied the earlier omission. Therefore, the earlier error did not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment. See Cardman, ¶ 19.⁴

III. Alleged Prosecutorial Misconduct

¶ 32 Patterson asserts that the trial court committed multiple errors by failing to address prosecutorial misconduct. We discern no basis for reversal.

¶ 33 In reviewing a claim of prosecutorial misconduct, “we consider whether the prosecutor's conduct was improper and whether any impropriety requires reversal.” Walker, ¶ 27. “Whether a prosecutor's statements constitute misconduct is generally a matter left to the trial court's discretion.” Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We will therefore not disturb the trial court's rulings on alleged misconduct absent a showing of an abuse of discretion. Walker, ¶ 27.

A. Preserved Claim

¶ 34 Patterson argues that the prosecutor shifted the burden of proof during opening statement by implying that defense counsel would make an opening statement. We disagree.

¶ 35 Because Patterson contemporaneously objected, this claim is preserved. “We review preserved claims of prosecutorial misconduct under the nonconstitutional harmless error standard.” Walker, ¶ 28; see also Hagos, ¶ 12. We may reverse only if an error “substantially influenced the verdict or affected the fairness of the trial.” Walker, ¶ 28.

¶ 36 Even when a prosecutor's comments or questions may imply a defendant has the burden of proof, “such comments and questions do not necessarily shift the burden of proof, constituting error.” People v. Santana, 255 P.3d 1126, 1131 (Colo. 2011). Courts must assess whether the burden was actually shifted by evaluating the strength of “burden-shifting evidence or comment[s] in light of the entire record.” Id. In making this assessment, courts consider the degree to which

(1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof; (2) the prosecutor's actions constituted a fair response to the questioning and comments of defense counsel; and (3) the jury is informed by counsel and the court about the defendant's presumption of innocence and the prosecution's burden of proof.

Id. at 1131-32 (footnotes omitted). By considering the whole record, “we protect a prosecutor's ability to ‘comment on the lack of evidence confirming defendant's theory of the case.’ ” Id. at 1132 (citation omitted).

¶ 37 During opening statements, the following dialogue occurred:

[Prosecutor]: I don't know exactly what you will hear from the defense in this case, but I anticipate that you may hear something about —

[Defense Counsel]: I need to object. I think that is burden shifting.

The Court: Pardon me?

[Defense Counsel]: I think that it's burden shifting.

The Court: Overruled.

[Prosecutor]: The defense will stand up after I do, and [defense counsel] will make an opening statement, no doubt skillfully, and I have no idea what she will say. But I anticipate that she will likely say that [A.R.’s mother] was upset about her ․ deteriorating relationship with the defendant, and that as a result of that, she encouraged [A.R.] to make the claim that she did.

Defense counsel later made an opening statement.

¶ 38 Considering the entire record, the prosecutor did not inappropriately shift the burden. First, before the above exchange, defense counsel had indicated that she was ready to proceed with opening statements, suggesting an intention to make one (which she indeed made). This occurred shortly after the court reminded the jury that “[t]he defense does not have to make an opening statement” but defense counsel would have the option to do so.

¶ 39 Second, the prosecutor did not specifically argue that Patterson carried the burden of proof or was even obligated to make an opening statement. Instead, the prosecutor briefly mentioned what she thought defense counsel might say, in an attempt to preview and address those arguments. See id. at 1133 (holding that, rather than implying that the defendant bore the burden of proof, the prosecutor's comments were properly aimed at, among other things, rebutting implications raised by the defense and highlighting the strength of the prosecution's case).

¶ 40 Third, the jury received instructions, both before the presentation of evidence and as part of the written instructions before deliberations, that properly explained the burden of proof.

¶ 41 Accordingly, the court did not abuse its discretion by overruling the defense objection.

B. Unpreserved Claims

¶ 42 Patterson raises several claims of prosecutorial misconduct that he did not raise in the trial court. We take each in turn.

¶ 43 Where a claim of error is not preserved, we may reverse only if plain error occurred. Hagos, ¶ 14. A trial court's failure to address alleged prosecutorial misconduct “rarely constitutes plain error,” People v. Allgier, 2018 COA 122, ¶ 51, because it can be plain error only if the conduct was “flagrantly, glaringly, or tremendously improper,” Walker, ¶ 28 (citation omitted). See also Hagos, ¶ 23 (reversals on plain error review “must be rare to maintain adequate motivation among trial participants to seek a fair and accurate trial the first time”).

¶ 44 First, Patterson argues that the prosecutor during voir dire improperly raised the idea of comparing multiple sides of a story, in alleged violation of Patterson's right not to testify. At no point, however, did the prosecutor say that Patterson would or must testify. To the contrary, the prosecutor reminded the jury that Patterson had a “constitutional right” to choose not to testify and the jurors “must abide by that.” So rather than infringing upon Patterson's rights, the prosecutor's questions seemed to be aimed at determining how potential jurors might assess the credibility of witnesses when they give “competing versions” of events. The prosecutor also acknowledged that “maybe there's not even a contrary version” offered in testimony and, in that situation, a jury must still assess the credibility of the testifying witness. Within this context, the prosecutor did not commit misconduct. See People v. Carter, 2015 COA 24M-2, ¶ 71 (explaining that we do not look at a prosecutor's comments in isolation but consider their context).

¶ 45 Second, Patterson argues that the prosecutor attempted inappropriately to use voir dire to prove that people recall important childhood events accurately. The prosecutor had numerous conversations during voir dire about the memories of children versus those of adults, including his own childhood memory. The prosecutor did not say, however, that children always remember important events accurately or that anyone must believe them. Although perhaps it would have been better practice not to refer to his own childhood memory, the prosecutor's questions were apparently aimed at gauging whether jurors would fairly consider a child witness's account of events, even if the child did not testify as effectively as an adult. So once again, we see no impropriety.

¶ 46 Third, Patterson contends that the prosecutor undermined the presumption of innocence by implying that reasonable jurors would accept any firsthand account at face value without corroboration. We disagree with this characterization of the questioning. The prosecutor had the following exchange with a prospective juror:

[Prosecutor]: And I just told you a story about the colleague whose — the kid who intercepted the ball and my own failed check on the hockey rink 40 years ago, right?

Did you think I was lying?

Prospective Juror: No. Who would want to tell that story?

[Prosecutor]: Right. So you didn't, but — so aren't there some people who go, you know, Why should I believe this? Why should I believe this just on face value?

Aren't there some people like that?

Prospective Juror: Yeah.

[Prosecutor]: And that's fair. But do you understand what I'm saying? You know, I told you that story and you didn't sit there going, Wait a minute, I need some evidence of this interception, right?

Prospective Juror: Uh-huh.

¶ 47 During this exchange, the prosecutor did not express a negative opinion of people who may want additional corroboration of a story. The prosecutor said it was “fair” to want such corroboration. So the prosecutor did not try to “stigmatize[ ]” or “chill[ ]” the skepticism of prospective jurors, as Patterson maintains. Rather, the prosecutor sought to determine whether prospective jurors could examine a witness's credibility without necessarily having corroborating evidence. This questioning was not improper.

¶ 48 Fourth, Patterson argues that the prosecutor improperly attempted to commit prospective jurors to believe that A.R.’s reason for delaying her outcry was legitimate. The prosecutor and a prospective juror had the following conversation:

[Prosecutor]: Have you ever heard of something like this: We're both going to get in trouble if you tell?

Prospective Juror: Yes.

[Prosecutor]: Does that sound legitimate?

Prospective Juror: Yes, that would definitely be a reason why.

[Prosecutor]: Okay. Does anyone disagree?

(No response.)

¶ 49 A.R. later testified that Patterson “told [her] not to tell anybody or else he'll get arrested and that [she] would get in trouble.” The prosecutor's statements during voir dire may have crossed the line because the prosecutor presented A.R.’s exact reason for her delayed outcry. See Carter, ¶ 71 (“In the context of voir dire, a prosecutor commits misconduct when he or she ․ argues the prosecution's case to the jury.”). Reviewing courts, however, give prosecutors the benefit of the doubt when their remarks may be inartful, given that comments delivered during trial may not always be perfectly scripted. Walker, ¶ 33 (citing People v. Samson, 2012 COA 167, ¶ 30).

¶ 50 Even if we assume this comment was improper, it nevertheless was not sufficiently prejudicial to reach the level of plain error. The prosecutor made this statement only once in an attempt to get prospective jurors to agree that such an explanation could be “a reason that makes sense.” See id. at ¶ 49 (discerning no plain error in prosecutor's allegedly improper remarks because, among other things, they were fleeting). That is, the prosecutor did not say this reason for the delayed outcry happened in this case but instead asked whether it could be a legitimate reason in any circumstance.

¶ 51 Further, the prosecutor's comment alone was not enough to obtain “buy-in” from jurors to believe A.R. — as Patterson claims — because additional analytical steps would be necessary for a juror to accept this as A.R.’s reasoning. After hearing the evidence, jurors would need to decide (1) whether Patterson actually told A.R. they would get in trouble and (2) whether that was actually the reason for her delayed outcry. The prosecutor's voir dire questioning did not go to either of those points. Finally, the failure to object indicates defense counsel's belief that the prosecutor's questions were not overly damaging. See People v. Conyac, 2014 COA 8M, ¶ 131. Given these circumstances, we cannot say that the prosecutor's comments, even if improper, so undermined the fundamental fairness of the trial as to warrant reversal. See Cardman, ¶ 19.

¶ 52 Fifth, Patterson says the prosecutor misrepresented and exaggerated the facts during opening statement. Referring to A.R.’s pretrial description of a sexual assault, the prosecutor said, “[A.R.] could hear the defendant breathing while he was doing this, and she demonstrated that his body was moving around like crazy.” Patterson argues this was exaggerated because A.R. actually said that his “feet” were moving around “like crazy” and that she heard his breathing, but it was “normal.” The prosecutor's description, however, sufficiently aligned with A.R.’s description during the forensic interview. See Domingo-Gomez, 125 P.3d at 1048. Any minor discrepancies between the evidence and the prosecutor's opening statement does not amount to misconduct. See Allgier, ¶ 62 (holding that courts may overlook minor discrepancies between the evidence and closing arguments). Also, the jurors watched the forensic interview during trial and had the opportunity to decide for themselves what A.R. said in the interview. Finally, the court instructed the jury that opening statements were not evidence, and we presume the jury followed that instruction. See Dominguez-Castor, ¶ 91.

¶ 53 Sixth, Patterson argues that the prosecutor misled the jurors during closing argument by telling them not to speculate about evidence that was not presented. The prosecutor asked the jurors to “look at what we do have, what evidence is there. That's your job. Examine the evidence and don't speculate.” Contrary to Patterson's contention, the prosecutor did not urge the jury to ignore any alleged gaps in the evidence. Rather, the prosecutor asked the jury not to speculate about what other evidence might exist and what it might show. In essence, the prosecutor argued, the jury must limit its consideration to the evidence admitted at trial. This was permissible and consistent with the court's written instructions, which admonished the jury that “you received all the evidence that you may properly consider in deciding this case.” See also People v. Carian, 2017 COA 106, ¶ 10 (recognizing that a jury's decision cannot be based on guessing, speculation, or conjecture).

¶ 54 Seventh, Patterson claims that the prosecutor in closing argument shifted the burden of proof by commenting on what defense counsel might argue during closing argument. The prosecutor said, “I don't know what the [d]efense is going to say” but defense counsel might argue that A.R. was “mistaken or maybe ․ involved in a conspiracy.” The prosecutor then showed a photo of A.R. and argued, “[T]here's your conspirator, your calculating dissembler. Don't buy that. Look at the evidence, find it is incredible. And, yes, believe her.”

¶ 55 Rather than attempting to shift the burden or inflaming the jury, this argument reflected two possible ways Patterson could respond to A.R.’s testimony. This argument lacked any specific shifting of the burden of proof. See Santana, 255 P.3d at 1131; see also People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (“A prosecutor has wide latitude to make arguments based on facts in evidence and reasonable inferences drawn from those facts.”). At most, the prosecutor's argument “weakly impl[ied] the defendant bears the burden of proof, carrying little to no danger the jury [would] place the burden of proof on the defendant.” Santana, 255 P.3d at 1131. This conduct was therefore not improper.

¶ 56 Because we reject most of Patterson's assertions of error, and the only potential errors were not prejudicial, the alleged errors do not, in the aggregate, show the absence of a fair trial. See Howard-Walker v. People, 2019 CO 69, ¶¶ 24, 26. So we reject Patterson's cumulative error claim based on prosecutorial misconduct.

IV. Cross-examination

¶ 57 Patterson argues the trial court violated his rights to present evidence and confront witnesses by limiting his cross-examination of A.R.’s mother. We do not discern error.

A. Applicable Law

¶ 58 We review evidentiary rulings for an abuse of discretion. Dominguez-Castor, ¶ 51. CRE 403 provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, ․ or needless presentation of cumulative evidence.” A trial court has broad discretion under CRE 403 but abuses this discretion when its decision is manifestly arbitrary, unreasonable, or unfair. Dominguez-Castor, ¶ 51.

¶ 59 Under the Confrontation Clause, an accused must be permitted to introduce all relevant and admissible evidence. Dominguez-Castor, ¶ 68. Even so, a trial court has significant latitude under the Confrontation Clause “to impose reasonable limits on cross-examination because of concerns about harassment, prejudice, repetition, or marginal relevance.” Kinney v. People, 187 P.3d 548, 559 (Colo. 2008). A confrontation violation may occur if a defendant “was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Dominguez-Castor, ¶ 70 (citation omitted). The exclusion of inadmissible evidence, however, does not deprive the defendant of a constitutional right. Id. at ¶ 68; see also People v. Harris, 43 P.3d 221, 227 (Colo. 2002) (holding the exclusion of evidence that the district court found irrelevant did not violate the defendant's constitutional rights).

B. Additional Facts

¶ 60 During cross-examination of A.R.’s mother, defense counsel attempted to elicit testimony about whether Patterson “struggled with” the mother's alleged drinking. The prosecutor objected based on CRE 403, arguing that this was “an attempt to make [the] witness look bad” and was “inflammatory.” Defense counsel argued that the prosecution had opened the door to this evidence by eliciting testimony that the mother was jealous of Patterson's giving more attention to A.R. and his daughter than he gave to her. Defense counsel's apparent theory was the prosecutor's questioning opened the door to evidence of every other “issue” in the relationship between the mother and Patterson. The prosecutor responded that “we never tried to paint her as some angel ․ This is just an attempt to paint her in a very bad light as a bad mom.” The court sustained the objection.

C. Application

¶ 61 The court did not abuse its discretion. The court reasonably decided that any marginal relevance to the mother's drinking was substantially outweighed by its unfair prejudice because it was primarily aimed at attacking her character.

¶ 62 Evidence of the mother's alleged drinking would not have contradicted, or corrected any misimpression left by, the testimony elicited by the prosecution. The proffered evidence cast no doubt on the mother's testimony that she was jealous of the attention Patterson paid to the girls. And the mother had not testified that her relationship with Patterson had no other problems. So the probative value of the proffered evidence was marginal at best.

¶ 63 Moreover, the probative value was further reduced by the other evidence elicited by the defense that called into question the mother's credibility. Defense counsel asked her about various discrepancies in her testimony, including how she found and accessed the phone at issue and her delay in disclosing additional information from A.R. Defense counsel also raised other potential bases for the mother's bias, including financial struggles in the relationship, the stronger support she had in Florida, and her jealousy at Patterson's treatment of A.R. Given this other evidence, the court sensibly found that the probative value of evidence of the mother's drinking was minimal compared to the risk of unfair prejudice. See People v. Elmarr, 2015 CO 53, ¶ 44 (Under CRE 403, “[t]he probative worth of any particular bit of evidence is affected by the scarcity or abundance of other evidence on the same point.”).

¶ 64 Because the court's decision was not manifestly arbitrary, unreasonable, or unfair, the proffered evidence was inadmissible. Hence, its exclusion did not violate Patterson's constitutional rights. See Dominguez-Castor, ¶ 68.

¶ 65 In any event, even if the proffered evidence were admissible, the court's exclusion of it did not amount to constitutional error because Patterson was otherwise able to meaningfully cross-examine the mother, as discussed above. See id. at ¶ 70. The court did not sustain any other objections to Patterson's questioning during cross-examination. He has not shown that a reasonable jury might have received a significantly different impression of the mother's credibility if the jury had heard evidence about her drinking. See id. at ¶ 72 (holding in part that, because evidence was admitted showing a witness's potential biases, excluding other evidence offered for the same purpose did not amount to constitutional error).

V. Cumulative Error

¶ 66 Once again, because we have rejected most of Patterson's claims of error, we do not discern cumulative error warranting reversal. See Howard-Walker, ¶¶ 24-26.

VI. Conclusion

¶ 67 The judgment is affirmed.

NOTICE CONCERNING ISSUANCE OF THE MANDATE

Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three days after entry of the judgment. In worker's compensation and unemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(m), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect.

Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b), will also stay the mandate until the Supreme Court has ruled on the Petition.

FOOTNOTES

1.   We reject Patterson's assertion that structural error analysis applies to the alleged errors. Structural error “is a constitutional standard, not a statutory one.” People v. Barajas, 2021 COA 98, ¶ 11 n.1 (“A statutory error requires reversal in all circumstances only if there is an ‘express legislative mandate’ to that effect.”) (citation omitted). A fortiori, violation of a court rule is not structural error. Cf. People v. Novotny, 2014 CO 18, ¶ 20 (recognizing that only a limited class of fundamental constitutional errors qualify as structural error); Kentucky v. Whorton, 441 U.S. 786, 789 (1979) (explaining that failure to give an instruction on the presumption of innocence does not always violate a defendant's constitutional right to a fair trial).

2.   In addition, both the prosecutor and defense counsel informed the venire that Patterson had the constitutional right not to testify and the jury “must abide by that.”

3.   For example, as to the first count, the court told the venire: “Between and including approximately August 1st, 2016, and May 12th, 2017, Garry W. Patterson, unlawfully and knowingly subjected [A.R.] ․ not his spouse, to sexual contact, and the victim was less than 18 years of age and the victim was in a position of trust.” The relevant statute, section 18-3-405.3(1), C.R.S. 2022, states that a person commits sexual assault on a child by one in a position of trust if they “knowingly subject[ ] another not his or her spouse to any sexual contact ․ if the victim is a child less than eighteen years of age and the actor committing the offense is one in a position of trust with respect to the victim.” While the court misspoke when reading the first count by saying “the victim” was in a position of trust rather than the defendant, the court corrected this element when reading the ensuing charges, and Patterson did not request any other clarification.

4.   Patterson contends that the jury asked “many irrelevant questions” during trial, but none of the questions identified on appeal had any connection to the special terms. And Patterson does not assert any error in the trial court's responses to the questions.

Opinion by JUDGE NAVARRO

Welling and Johnson, JJ., concur JUDGE WELLING and JUDGE JOHNSON concur.