SUMMARY

October 8, 2020

2020COA141

No. 17CA1583, Peo v Martinez — Evidence — Admissibility —

Victim Impact Evidence — Irrelevant Evidence Inadmissible

A division of the court of appeals considers whether victim 

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

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

admitting victim impact evidence because the evidence did not 

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

probable and was thus inadmissible. Even though the trial court 

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

circumstances of this case, the division concludes that the 

admission of the evidence was harmless.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2020C0A141

Court of Appeals No. 17CA1583

City and County of Denver District Court No. 16CR710

Honorable Shelley I. Gilman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Samuel Martinez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE LIPINSKY

Navarro and Tow, JJ., concur

Announced October 8, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Victim impact testimony packs a punch at a criminal trial. 

Trial courts may understandably be inclined to give the victim and 

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

the crime with which the defendant is charged. But the 

admissibility of such evidence can deprive the defendant of the right 

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

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

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

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

both the United States and Colorado Constitutions.” People v. AbuNantambu-El, 2019 CO 106, ¶ 14, 454 P.3d 1044, 1047 (citations 

omitted).

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

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

personal characteristics and to the physical, emotional, or social 

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

State, 119 P.3d 411, 416 (Wyo. 2005) — during the guilt/innocence 

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

shift the jury’s focus improperly from deciding whether the 

defendant, Joseph Samuel Martinez, committed the crime to 
2

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

victim. 

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

of the victim impact evidence constituted harmless error. The guilty 

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

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

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

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

reasonable probability that it contributed to his conviction.

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

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

assault on a victim incapable of appraising the nature of her 

conduct.

I. Background Facts and Procedural History

A. The Incident

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

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

consent to sex. Every other material fact was undisputed.

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

Denver bar. Her last memory of the evening was checking her 
3

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

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

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

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

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

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

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

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

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

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

discovered that her marijuana pipe and marijuana were also 

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

that she had transferred trains. 

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

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

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

not remember the specifics of their conversation. When she 

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

pay the cab driver. Because A.R. was “stumbling” and “slurring her 
4

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

drunk.” 

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

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

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

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

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

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

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

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

DNA test of Martinez’s saliva confirmed the match. 

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

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

Based on this information, the prosecution charged Martinez with 

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

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

2019. 

B. Martinez’s Trial

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

impact of the alleged sexual assault on A.R., including that, 
5

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

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

of this testimony and, after the district court overruled his 

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

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

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

pursued this line of cross-examination. 

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

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

Denver typically took an average of between an hour and an 

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

three hours and eleven minutes to return home from downtown 

Denver. 

¶ 13 The detective who investigated the alleged sexual assault 

testified next. Although the prosecutor had neither designated him 

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

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

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

victims of sexual assault. 
6

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

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

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

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

assault examination and the average alcohol elimination rate for a 

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

peak blood alcohol concentration on the night of the incident had 

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

have had to consume between nine and eleven drinks over a 

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

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

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

conscious but is not forming memories. The expert testified that 

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

in a blackout state. 

¶ 16 Finally, the prosecutor introduced into evidence 

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

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

crossing light-rail tracks, sleeping on station benches and 

platforms, missing trains, and getting on a wrong train. 
7

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

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

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

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

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

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

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

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

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

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

she was doing. 

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

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

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

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

not “pass out,” and did not vomit. 

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

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

Martinez. The psychology expert opined that people can engage in 

complex activities during blackouts and that blackouts can, but do 
8

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

The expert further explained that people who experience blackouts 

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

memories that align with their assumptions and expectations of 

themselves. 

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

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

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

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

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

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

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

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

exhibited outward signs of impairment that showed her incapacity 

to appraise the nature of her conduct. 

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

incapable of appraising the nature of her conduct. The district 

court sentenced Martinez to an indeterminate sentence pursuant to 

the Colorado Sex Offender Lifetime Supervision Act of 1998 

(SOLSA). §§ 18-1.3-1001 to -1012, C.R.S. 2019. 
9

II. Analysis

¶ 22 Martinez presents four principal arguments on appeal. He 

contends that the district court erred by

(1) admitting irrelevant and highly prejudicial victim impact 

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

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

the jury heard the evidence;

(2) allowing the prosecutor to present a generic tailoring 

argument during closing argument;

(3) admitting opinion testimony from the detective even 

though he had neither been designated nor qualified as 

an expert witness; and

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

objection of Martinez’s counsel. 

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

independently require reversal, their cumulative effect requires it. 

Finally, Martinez advances a facial challenge to the constitutionality 

of SOLSA. 
10

A. Victim Impact Evidence

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

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

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

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

in denying Martinez’s motion for a mistrial. 

1. Standard of Review

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

rulings, People v. Stewart, 55 P.3d 107, 122 (Colo. 2002), as well as 

its denial of a motion for mistrial, People v. Santana, 255 P.3d 1126, 

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

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

misapplies the law.” People v. Williams, 2019 COA 32, ¶ 21, 446 

P.3d 944, 950.

2. The Nonconstitutional Harmless Error Standard Applies

¶ 26 The parties disagree on the appropriate standard for our 

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

evidence. Martinez contends that the constitutional harmless error 

standard applies because the admission of the evidence violated his 

rights to due process and a fair trial. In contrast, the People assert 
11

that we review for nonconstitutional harmless error because any 

error was evidentiary and not of a constitutional magnitude. 

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

harmless error standard applies to the district court’s evidentiary 

rulings. Pernell v. People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673; 

see State v. Maske, 591 S.E.2d 521, 528 (N.C. 2004) (reviewing the 

admission of victim impact evidence for nonconstitutional harmless 

error); Justice v. State, 775 P.2d 1002, 1011 (Wyo. 1989) (same); see 

also People v. Flockhart, 2013 CO 42, ¶ 20, 304 P.3d 227, 233 

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

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

(quoting Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010))).

¶ 28 Under the nonconstitutional harmless error standard, 

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

the parties, meaning ‘the error substantially influenced the verdict 

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

2018 CO 82, ¶ 61, 428 P.3d 517, 530 (quoting Hagos v. People, 

2012 CO 63, ¶ 12, 288 P.3d 116, 119). Thus, “[i]f we can say with 

fair assurance that, in light of the entire record of the trial, the error 

did not substantially influence the verdict or impair the fairness of 
12

the trial, the error is harmless.” Id. at ¶ 62, 428 P.3d at 530; see 

Pernell, ¶ 22, 411 P.3d at 673 (“[A]n objected-to trial error is 

harmless if there is no reasonable possibility that it contributed to 

the defendant’s conviction.”).

3. Legal Authority

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

personal characteristics and to the physical, emotional, or social 

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

Schreibvogel v. State, 228 P.3d 874, 883 (Wyo. 2010) (quoting Smith 

v. State, 119 P.3d 411, 416 (Wyo. 2005)); see State v. Graham, 650 

S.E.2d 639, 645 (N.C. Ct. App. 2007) (explaining that victim impact 

evidence includes the physical, psychological, emotional, and 

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

¶ 30 The United States Supreme Court decided more than three 

decades ago that victim impact evidence is inadmissible because it 

may be “wholly unrelated to the blameworthiness of a particular 

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

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

crime.” Booth v. Maryland, 482 U.S. 496, 504, 505 (1987), 

overruled by Payne v. Tennessee, 501 U.S. 808 (1991). 
13

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

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

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

murder. Payne, 501 U.S. at 825 (holding that victim impact 

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

individual whose death represents a unique loss to society and in 

particular to his family” (quoting Booth, 482 U.S. at 517) (White, J., 

dissenting)). The Colorado Supreme Court has cited Payne

approvingly. See People v. Dunlap, 975 P.2d 723, 744 n.14 (Colo. 

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

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

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

Payne, 501 U.S. at 827)). 

¶ 32 No Colorado case has addressed the admissibility of victim 

impact evidence during the guilt/innocence phase of a criminal 

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

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

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

was irrelevant and, thus, inadmissible. 
14

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

family often has no tendency to prove whether a particular 

defendant committed a particular criminal act against a particular 

victim,” such evidence is generally irrelevant during the 

guilt/innocence phase of a trial. Graham, 650 S.E.2d at 645. 

Thus, the admissibility of victim impact evidence during the 

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

relevant to determining whether the defendant committed the crime 

for which he or she was charged. See id.; Schreibvogel, 228 P.3d at 

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

v. Clark, 2015 COA 44, ¶ 17, 370 P.3d 197, 204 (“In criminal cases, 

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

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

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

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

show the context or circumstances of the crime itself.” Graham, 

650 S.E.2d at 646. In Graham, a first degree burglary and assault 

case, the appellate court considered whether the trial court had 

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

evidence of the impact of the crimes on the mental health of the 
15

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

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

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

intruder . . . .” Id. at 646-47. 

4. The District Court Erred by Admitting the Victim Impact 

Evidence

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

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

testified,

Immediately following, I missed out on a lot of 

work. I loved my job, but I ended up — there 

were mornings where I couldn’t get out of bed. 

I couldn’t move. I was in physical pain.

I ended up no-calling/no-showing to my job 

three times in a row, so I was fired. My boss 

sent a police officer to my house because she 

was afraid I had killed myself.

I spent the next six months just circling the 

drain for a long time. It wasn’t that I wanted 

to kill myself; it was that I just wanted to turn 

off. I wished there was a switch where I didn’t 

have to feel or think or be conscious.

I had class two days a week, and school’s kind 

of always been my safe place, a place where I 

really excel. The other five days a week I spent 

either sleeping too much, not sleeping at all, 

eating too much, not eating at all. I was very, 

very, very depressed, to say the least.
16

That following March . . . I did have a close 

suicidal scare. 

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

[PROSECUTOR:] Now, I want to talk to you a 

little bit about [A.R.’s] behavior after the 

assault. Did you notice anything different 

after the assault about her behavior?

[MOTHER:] She hibernated afterwards. She 

went into her room and didn’t come out for an 

extended period of time. She would come out, 

go right back.

[PROSECUTOR:] Was this different than how 

she behaved before?

[MOTHER:] Yes.

[PROSECUTOR:] Did you notice any signs of 

depression?

[MOTHER:] Yeah. She quit going to work. 

She quit hanging out with friends, taking her 

dog on a walk. She just — she just closed 

herself into the basement bedroom and 

bathroom and made herself have a very small 

world. 

¶ 37 Martinez contends that this testimony was irrelevant because 

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

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

conduct.” § 18-3-402(1)(b). Moreover, according to Martinez, the 
17

evidence was highly prejudicial because it came from two witnesses 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Schreibvogel, 228 P.3d at 883 (quoting Smith, 119 P.3d at 416).

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

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

depression and “close suicidal scare” following the sexual assault 

were relevant to any material fact. Specifically, the prosecutor did 
18

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

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

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

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

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

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

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

§ 18-3-402(1)(b); see also Justice, 775 P.2d at 1010 (“[The victims’] 

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

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

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

victim impact evidence.

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

Evidence Was Harmless

¶ 42 Although the district court erred in admitting the victim 

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

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

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

¶ 62, 428 P.3d at 530. 
19

¶ 43 The victim impact evidence constituted a minor portion of 

Martinez’s trial. See People v. Whitman, 205 P.3d 371, 385 (Colo. 

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

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

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

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

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

during her opening statement and closing argument. Thus, the 

prosecutor did not unduly highlight the victim impact evidence or 

direct the jury to convict Martinez because of it.

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

victim impact evidence by permitting Martinez’s counsel to inquire 

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

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

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

could have been caused by factors other than the alleged sexual 

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

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

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

Villa, 240 P.3d 343, 352 (Colo. App. 2009).
20

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

overwhelming. The prosecutor’s closing argument focused on 

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

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

discussing the video-recordings, the prosecutor stated,

There’s nothing vague or speculative or 

imaginary about what you just saw. It is real. 

And we could have gone through this trial and 

never presented [the toxicology expert] to you, 

and you would have had enough evidence just 

based on this video about [A.R.’s] level of 

intoxication at the time that she encountered 

[Martinez] and about her ability to consent.

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

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

individuals’ conflicting accounts. While Martinez’s counsel

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

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

not recall her encounter with Martinez. 

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

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

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

time of the incident, the video-recordings provided objective 
21

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

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

intoxicated to consent to sex. 

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

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

could not walk without stumbling, dropped to the ground for 

approximately four minutes before pulling herself onto a bench, 

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

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

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

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

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

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

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

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

Bertrand, 2014 COA 142, ¶ 9, 342 P.3d 582, 584 (“The law makes 

no distinction between direct and circumstantial evidence.”).

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

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

overwhelming evidence of Martinez’s guilt. “[T]here is no reasonable 
22

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

conviction.” Pernell, ¶ 22, 411 P.3d at 673. 

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

substantially prejudiced by the admission of the victim impact 

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

his motion for a mistrial. See People v. Ned, 923 P.2d 271, 275 

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

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

mistrial).

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

¶ 51 Martinez asserts that reversal is required because the district 

court permitted the prosecutor to present a generic tailoring 

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

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

disagree.

1. Standard of Review

¶ 52 We review claims of prosecutorial misconduct under a 

two-step analysis. Wend, 235 P.3d at 1096. “First, [we] must 

determine whether the prosecutor’s questionable conduct was 

improper based on the totality of the circumstances and, second, 
23

whether such actions warrant reversal according to the proper 

standard of review.” Id.

2. Preservation

¶ 53 The parties disagree whether Martinez preserved this issue for 

appeal. Martinez contends that he preserved the issue through his 

counsel’s objection that the prosecutor had engaged in burdenshifting, thereby “alert[ing] the trial court to the potential 

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

People, 244 P.3d 135, 140 (Colo. 2010). In response, the People 

assert that Martinez failed to preserve the issue because his counsel 

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

v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304. 

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

misconduct, we need not resolve this dispute. See Hagos, ¶ 9, 288 

P.3d at 118 (explaining that preservation affects the standard of 

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

proceedings necessitates reversal of the judgment of conviction”).

3. Legal Authority

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

closing argument as long as the attack is based on the evidence in 
24

the record or a reasonable inference from that evidence. See 

Martinez, 244 P.3d at 140-41; People v. Walters, 148 P.3d 331, 334 

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

the strength and significance of the evidence, conflicting evidence, 

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

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

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

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

witnesses.” Martinez, 244 P.3d at 141-42.

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

the prosecutor may make specific tailoring arguments. Id. “Generic 

tailoring arguments occur when the prosecution attacks the 

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

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

his testimony.” Id. These arguments are improper because “they 

are not based on reasonable inferences from evidence in the 

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

because he or she exercised the right of confrontation and upheld 

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

Knapp, 2020 COA 107, ¶¶ 58-59, ___ P.3d ___, ___ (deciding that 
25

the prosecutor made an improper generic tailoring argument by 

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

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

court”); see also Crim. P. 43(a).

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

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

draw inferences regarding the credibility of the defendant.” 

Martinez, 244 P.3d at 141; see State v. Weatherspoon, 212 A.3d 

208, 221 (Conn. 2019) (holding that prosecutor’s reference to 

conflicting versions of events offered by sexual assault victim and 

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

fabricated, constituted specific tailoring because the argument was 

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

4. The Prosecutor Did Not Present a Generic Tailoring Argument

¶ 58 During closing argument, the prosecutor argued,

the defendant also wants you to believe that 

when the true target of [A.R.’s] affection . . . 

rebuffed her advances twice, that she was 

completely unfazed. This drunken girl didn’t 

think a thing of it, and instead what she 

started doing was passing out her weed, 

passing out her weed like candy to every 

person who was standing there, not to smoke 
26

it; that might make a little bit of sense. But 

nobody smoked. 

[Martinez] can’t tell you that, because there’s 

no evidence that there is marijuana in [A.R.’s] 

urine results. And so, instead, he tells you 

this unrealistic story that she just, out of the 

kindness of her heart, decides to pass out her 

weed to everybody. Well, why? Why does he 

have to tell you that story? Well, because 

that’s the thing that she’s missing. 

Because, otherwise, how does he explain the 

one thing that’s missing from her stuff, right? 

Unless he’s gone through it. That’s the 

alternative. So instead, she just passed it out 

like candy, and that’s the explanation for why 

she no longer has that or her pipe at the end of 

the event.

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

comments constituted a generic tailoring argument. Although the 

prosecutor argued that Martinez tailored his testimony to fit other 

witnesses’ testimony, the prosecutor tied her argument to evidence 

in the record. Martinez, 244 P.3d at 141-42. She specifically 

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

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

account lacked credibility. This was a proper specific tailoring 

argument. See id.; People v. Constant, 645 P.2d 843, 845-46 (Colo. 

1982) (“Counsel can with propriety comment on how well and in 
27

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

forth in the [jury] instruction.”); Weatherspoon, 212 A.3d at 221 

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

not err by permitting the prosecutor to present a tailoring 

argument.

C. The Detective’s Testimony

¶ 60 Martinez contends that the district court plainly erred by 

permitting the prosecutor to elicit expert testimony from the 

detective without designating or qualifying the detective as an 

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

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

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

the testimony did not constitute plain error.

1. Standard of Review

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

admission of expert testimony, for an abuse of discretion. 

Venalonzo v. People, 2017 CO 9, ¶¶ 15, 24, 388 P.3d 868, 873, 875. 

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

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

Williams, ¶ 21, 446 P.3d at 950.
28

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

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

objection for plain error. Hagos, ¶ 14, 288 P.3d at 120. Plain error 

is “obvious and substantial.” Id. “We reverse under plain error 

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

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

judgment of conviction.’” Id. (quoting People v. Miller, 113 P.3d 743, 

750 (Colo. 2005)).

2. Legal Authority

¶ 63 A trial court abuses its discretion by admitting expert 

testimony under the guise of lay opinion. Stewart, 55 P.3d at 124 

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

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

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

an expert before offering testimony that amounts to expert 

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

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

reliability requirements for expert testimony.” Id. at 123 (quoting 

United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)); see

Crim. P. 16(I)(a)(1)(III) (providing that “[t]he prosecuting attorney 
29

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

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

¶ 64 In Venalonzo, the supreme court discussed the distinction 

between lay and expert testimony, explaining that 

[t]ogether, CRE 701 and 702 distinguish lay 

testimony from expert testimony. CRE 701 

defines the scope of lay witness opinion 

testimony. It provides that lay witness 

testimony in the form of opinions or inferences 

must be “(a) rationally based on the perception 

of the witness, (b) helpful to a clear 

understanding of the witness’[s] testimony or 

the determination of a fact in issue, and (c) not 

based on scientific, technical, or other 

specialized knowledge within the scope of 

[CRE] 702.” CRE 702, on the other hand, 

concerns the admissibility of expert testimony. 

Under this rule, “[i]f scientific, technical, or 

other specialized knowledge will assist the trier 

of fact to understand the evidence or to 

determine a fact in issue, a witness qualified 

as an expert by knowledge, skill, experience, 

training, or education, may testify thereto in 

the form of an opinion or otherwise.”

¶ 18, 388 P.3d at 874 (citation omitted); see CRE 701 & 702.

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

testimony is lay testimony under CRE 701 or expert testimony 

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

opinion.” Venalonzo, ¶ 23, 388 P.3d at 875. A witness offers lay 
30

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

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

expert testimony if the testimony “could not be offered without 

specialized experiences, knowledge, or training.” Id. This inquiry 

“depends on the facts and surrounding circumstances of the case 

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

witness’s opinion.’” Id. at ¶ 17, 388 P.3d at 874 (quoting United 

States v. Smith, 591 F.3d 974, 982-83 (8th Cir. 2010)).

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

Expert Testimony

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

disclosure of the prosecution’s expert witnesses under Rule 

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

expert witness. 

¶ 67 The detective began his testimony by summarizing his 

background, training, and experience, stating that he

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

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

years”;
31

• contacted “hundreds” of intoxicated people while 

working;

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

classes;

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

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

sexual assaults; and

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

career.

Despite this testimony regarding the detective’s background, 

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

as an expert witness. 

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

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

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

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

response was not “surprising.” 

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

examination:
32

[PROSECUTOR:] Now, you said earlier you’ve 

been involved in about 500 sex assault 

investigations. In your training and 

experience, is it usual for a victim of a sex 

assault to not have significant physical 

injuries?

[DETECTIVE:] No. Again, much like 

reactions, depending on the circumstances of 

the sexual assault, we don’t expect to see, 

necessarily, injuries, unless there’s an 

indication that there was some sort of physical 

attack, as well.

Again, depending upon the circumstances . . . 

when we talk about things like what would 

commonly be referred to as “date rape” or 

situations like that, or circumstances in which 

people are what’s labeled “victim incapable” 

. . . where they’re inebriated or drugged or 

something to that effect, you’re not necessarily 

going to see an injury. There’s no expectation 

for that one way or the other.

[PROSECUTOR:] Okay. And specifically on 

those “victim incapable” cases you talked 

about, where the victim was too intoxicated, is 

it your experience that there would be little or 

no injury?

[DETECTIVE:] Generally speaking, there 

wouldn’t be, because they’re not in a position 

to offer any kind of physical resistance.

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

impermissible expert testimony because such testimony “could not 

be offered without specialized experiences, knowledge, or training.” 
33

Id. at ¶ 23, 388 P.3d at 875. An “ordinary person” does not possess 

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

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

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

e.g., State v. Fortin, 917 A.2d 746, 757 (N.J. 2007) (“We do not 

presume that the ordinary juror would have knowledge of the 

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

People v. Rincon, 140 P.3d 976, 983 (Colo. App. 2005) (holding that 

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

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

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

been specially trained or otherwise had experience with sexual 

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

not provide answers to the prosecutor’s questions.

¶ 71 Indeed, immediately before the detective testified about these 

topics, the prosecutor emphasized the detective’s specialized 

training and experience. The detective then compared his 

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

hundreds of other sexual assault cases he had investigated. See 

People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011) (“[E]xperts may 
34

testify concerning whether a victim’s behavior or demeanor is 

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

that the detective could have gathered the information supporting 

his testimony only through his “specialized experiences, knowledge, 

[and] training,” he offered expert testimony. Venalonzo, ¶ 23, 388 

P.3d at 875. And because the prosecutor failed to endorse the 

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

improper. See Crim. P. 16(I)(d); Stewart, 55 P.3d at 124.

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

detective to testify about the injuries and demeanor that victims of 

sexual assault typically display. See Williams, ¶ 21, 446 P.3d at 

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

law.”).

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

Plain Error

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

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

make a contemporaneous objection to the testimony. See Hagos, 

¶ 14, 288 P.3d at 120. In determining whether the admission of the 

detective’s opinion testimony resulted in plain error, we consider 
35

whether the detective was qualified to offer those opinions based on 

his training and experience. See People v. Conyac, 2014 COA 8M, 

¶ 67, 361 P.3d 1005, 1021; People v. Malloy, 178 P.3d 1283, 

1288-89 (Colo. App. 2008); see also People v. Lomanaco, 802 P.2d 

1143, 1145 (Colo. App. 1990) (holding that there was no plain error 

in the admission of unendorsed expert testimony when the witness 

was qualified to provide that testimony). 

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

detective was qualified to provide the opinions. Through his

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

four years, the detective undoubtedly gained the experience 

necessary to testify about the typical injuries of victims of sexual 

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

during police interviews.

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

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

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

testimony.” People v. Brown, 313 P.3d 608, 617 (Colo. App. 2011).

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

Martinez was overwhelming. See supra Part II.A.5; see also Miller, 
36

113 P.3d at 750 (holding that a trial court’s error “does not 

normally constitute plain error . . . where the record contains 

overwhelming evidence of the defendant’s guilt”).

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

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

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

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

judgment of conviction.” Hagos, ¶ 14, 288 P.3d at 120 (quoting 

Miller, 113 P.3d at 750).

D. Martinez’s Theory of Defense Instruction

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

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

no error.

1. Standard of Review

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

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

2014 COA 158, ¶ 18, 342 P.3d 587, 591; see People v. Lee, 30 P.3d 

686, 689 (Colo. App. 2000) (“The trial court has substantial 

discretion in the drafting of a theory of defense instruction.”).
37

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

review the instructions as a whole to determine whether the jury 

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

People v. Dore, 997 P.2d 1214, 1222 (Colo. App. 1999).

2. Legal Authority

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

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

to support the theory.” People v. Nunez, 841 P.2d 261, 264 (Colo. 

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

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

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

explanation.” People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 

2002), aff’d, 78 P.3d 290 (Colo. 2003).

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

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

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

Lee, 30 P.3d at 689; see Dore, 997 P.2d at 1221-22 (“The trial court 

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

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

court refuses to give an instruction, it “has an affirmative obligation 
38

to cooperate with counsel to either correct the tendered theory of 

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

instruction drafted by the court.” Nunez, 841 P.2d at 265.

3. The District Court Did Not Err by Modifying Martinez’s 

Tendered Theory of Defense Instruction

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

instruction:

[o]n the evening of June 29, 2015 [Martinez] 

was hanging out, drinking alcohol and 

smoking marijuana in a park in lower 

downtown with a small group of friends. Later 

in the evening [A.R.] approached Mr. Martinez 

and his friends. [A.R.] first attempted to 

engage in a sexual relationship with Mr. 

Martinez’s friend J.K. After, she learned that 

he had a girlfriend and wasn’t interested in 

engaging in a sexual relationship with her she 

began speaking more exclusively with 

Mr. Martinez. After a period of time 

Mr. Martinez and [A.R.] agreed to separate 

from the group to engage in consensual sex. 

While Mr. Martinez observed some slight signs 

of impairment from [A.R.] there wasn’t 

anything about her words or physical 

demeanor to indicate to him that she was not 

fully aware of what she was saying a [sic] 

doing.

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

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

Instead, over the objection of Martinez’s counsel, the court modified 
39

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

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

engaged in a consensual sexual relationship with him.” 

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

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

correctly noted, the final sentence in Martinez’s tendered 

instruction was argumentative. Additionally, the instruction was 

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

effect of the explanation.” Meads, 58 P.3d at 1138. Rather, by 

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

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

Lee, 30 P.3d at 689; see Dore, 997 P.2d at 1221-22. Martinez was 

not entitled to a theory of defense instruction that unduly 

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

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

See People v. Baird, 66 P.3d 183, 194 (Colo. App. 2002) (“[A] trial 

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

particular evidence . . . .”). 

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

excised the problematic components of Martinez’s tendered 
40

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

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

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

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

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

doing so. 841 P.2d at 265.

E. Cumulative Error

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

deprived him of a fair trial. We disagree.

¶ 88 The supreme court discussed the applicability of the 

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

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

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

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

errors and defects substantially affected the fairness of the trial 

proceedings and the integrity of the fact-finding process.’” 2019 CO 

69, ¶ 24, 443 P.3d 1007, 1011 (quoting People v. Lucero, 200 Colo. 

335, 344, 615 P.2d 660, 666 (1980)). The court added, “[f]or 

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

identify multiple errors that collectively prejudice the substantial 
41

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

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

¶ 25, 443 P.3d at 1011 (citation omitted). 

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

cumulative error because those errors did not substantially 

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

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

combination, given the overwhelming evidence of guilt, we cannot 

conclude “that the cumulative effect of the errors substantially 

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

2015 COA 107M, ¶ 82, 363 P.3d 758, 775; see also Conyac, ¶ 152, 

361 P.3d at 1030 (“[A]lthough we have found some errors, because 

we do not perceive that they substantially prejudiced defendant’s 

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

F. SOLSA’s Constitutionality

¶ 90 In attacking the constitutionality of SOLSA, Martinez concedes 

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

SOLSA’s constitutionality, see, e.g., People v. Lehmkuhl, 117 P.3d 

98, 108 (Colo. App. 2004), and he did not advance this argument 

before the district court. He nonetheless contends that SOLSA
42

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

right of equal protection, right against cruel and unusual 

punishment, and right against self-incrimination. Martinez, 

however, fails to explain how SOLSA violates his constitutional 

rights and how the divisions that previously addressed this issue 

erred. We therefore decline to depart from the decisions affirming 

SOLSA’s constitutionality, see, e.g., People v. Sabell, 2018 COA 85, 

¶ 47, 452 P.3d 91, 100, and hold that the district court did not 

plainly err in sentencing Martinez under the mandates of SOLSA. 

III. Conclusion

¶ 91 Martinez’s judgment of conviction is affirmed.

JUDGE NAVARRO and JUDGE TOW concur.