COLORADO COURT OF APPEALS 2017COA63

Court of Appeals No. 14CA1331

City and County of Denver District Court No. 13CR1748

Honorable Martin F. Egelhoff, Judge

Honorable John W. Madden, IV, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leroy Salas,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TAUBMAN

Graham and Navarro, JJ., concur

Announced May 18, 2017

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy 

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

¶ 1 Defendant, Leroy Salas, appeals his judgment of conviction 

and sentence entered on jury verdicts finding him guilty of sexual 

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

on a child, pattern of abuse. Salas also appeals the trial court’s 

order finding him to be a sexually violent predator (SVP). We affirm 

in part, vacate in part, and remand for findings.

I. Background

¶ 2 The victim was nine years old when her mother began dating 

Salas in August 2011. At the time, the victim lived with her mother

in Loveland. In September 2011, the three moved in with the 

victim’s grandmother, at her apartment in Denver. In November 

2011, Salas and mother moved into a separate apartment together 

in Denver, but the victim continued to live with grandmother. The 

victim occasionally visited her mother’s apartment. 

¶ 3 At trial, the victim testified that, during visits, she would 

sometimes be alone with Salas in the apartment while mother

worked. She testified that on occasion, Salas told the victim to lie 

down on his bed and touched her “stomach and legs” and her 

“private parts” over her clothing. The prosecutor asked the victim 

to indicate on a diagram where Salas touched her, and she 
2

indicated the buttocks. On another occasion, Salas made the 

victim touch his penis. The victim did not tell anyone about these 

incidents because Salas told her not to, and she was scared.

¶ 4 In early 2012, mother and Salas broke up, and mother moved 

to California; the victim followed once she finished school in 

Denver. There, the victim told a family friend about the assaults. 

The friend relayed the information to mother and mother called the 

police. The victim spoke about the incidents with a sheriff and a 

counselor in California.

¶ 5 In November 2012, the victim moved back in with 

grandmother in Denver. The victim discussed the assaults with a 

forensic interviewer at the Denver Children’s Advocacy Center.

¶ 6 At trial, the theory of defense was that the victim fabricated 

the assaults in order to gain attention, and that Salas could not 

have sexually assaulted her because he was never alone with her 

for a sufficient period.

II. Mistrial

¶ 7 Salas first contends that the trial court abused its discretion 

and violated his rights to due process, a fair trial, and an impartial 

jury by denying his motion for a mistrial after grandmother testified 
3

that Salas had “some type of court proceedings on an alcohol 

problem,” a nonresponsive answer to a question which, he says, 

impermissibly referred to prior criminality. We disagree.

¶ 8 Grandmother testified that mother and Salas lived with her for 

a few months before they moved into their own apartment. The 

court asked grandmother a question posed by the jury: “Was Salas

employed during the two- to three-month period and if so how 

many hours per week?” Grandmother replied that he was 

employed. Defense counsel questioned grandmother further on 

whether Salas was employed full-time, to which grandmother 

responded, “He had — no — how can I say this except to be honest. 

There was some type of court proceedings on an alcohol problem.” 

Defense counsel moved for a mistrial. The trial court denied the 

motion and instructed the jury to disregard grandmother’s 

response.

A. Standard of Review

¶ 9 A trial court has broad discretion to grant or deny a mistrial, 

and its decision will not be disturbed on appeal absent an abuse of 

discretion and prejudice to the defendant. People v. Santana, 255 

P.3d 1126 (Colo. 2011); People v. Abbott, 690 P.2d 1263, 1269 
4

(Colo. 1984). A court abuses its discretion only when inadmissible 

evidence is likely to have substantially prejudiced the jurors despite 

the use of any alternative remedies. People v. Lahr, 2013 COA 57, 

¶ 23, 316 P.3d 74, 79. A mistrial is “the most drastic of remedies,” 

and is “only warranted where the prejudice to the accused is too 

substantial to be remedied by other means.” Abbott, 690 P.2d at 

1269. 

¶ 10 Relying on Santana and People v. Chastain, 733 P.2d 1206 

(Colo. 1987), Salas asserts that he has presented a constitutional 

claim because grandmother’s statement violated his rights to due 

process and a fair trial by an impartial jury. However, neither of 

these cases involved a motion for a mistrial based on a reference to 

prior criminality. Further, an erroneous reference to a defendant’s 

prior criminality is not an error of constitutional dimension, and we 

therefore review such claims for nonconstitutional harmless error. 

See, e.g., People v. Pernell, 2014 COA 157, ¶¶ 26, 42-52, __ P.3d __, 

__, __; Lahr, ¶ 23, 316 P.3d at 79; see also People v. Yusem, 210 

P.3d 458, 469 n.16 (Colo. 2009) (erroneous admission of prior bad 

act evidence is not error of constitutional dimension). Therefore, we 

review Salas’ claim for nonconstitutional harmless error. 
5

B. Applicable Law

¶ 11 Salas relies on Goldsberry to assert that “[i]n a criminal trial to 

a jury, evidence of a defendant’s criminal activity, which is 

unrelated to the offense charged, is inadmissible.” People v. 

Goldsberry, 181 Colo. 406, 409, 509 P.2d 801, 803 (1973). 

However, Goldsberry also notes that “exceptions to this rule are 

limited to well defined and special situations where proof of similar 

offenses will show the defendant’s intent, motive, plan, scheme, or 

design with respect to the crime charged.” Id. The supreme court 

in Goldsberry held that in such situations, the court is required to 

give instructions limiting the purpose of such evidence, id., and that 

when reference is made in the presence of the jury to a defendant’s 

unrelated criminal activity, “a mistrial is normally required,” id. 

¶ 12 However, subsequent cases have limited the holding in 

Goldsberry: “[A]n ambiguous reference to evidence of a defendant’s 

criminality does not necessitate a new trial.” Lahr, ¶ 24, 316 P.3d 

at 79 (citations omitted); see also People v. Vigil, 718 P.2d 496, 

505-06 (Colo. 1986) (police officer’s reference to contraband found 

in defendant’s home did not warrant mistrial). In addition, fleeting 

references to a defendant’s alleged criminal history have even less 
6

prejudicial impact. Lahr, ¶ 24, 316 P.3d at 79-80; see also Abbott, 

690 P.2d at 1269 (A mistrial was unwarranted in part because “the 

reference to past criminal acts was a single unelicited remark.”). 

The circumstances of each case must be reviewed to determine 

whether the defendant was prejudiced. Abbott, 690 P.2d at 1269; 

People v. Moore, 226 P.3d 1076, 1087-88 (Colo. App. 2009).

¶ 13 Further, Goldsberry was announced prior to the promulgation 

of the Colorado Rules of Evidence. While the rules state that 

evidence of other crimes, wrongs, or acts is not admissible to prove 

the defendant’s character in order to show that he or she acted in 

conformity therewith, see CRE 404(b); Kaufman v. People, 202 P.3d 

542, 552 (Colo. 2009), such evidence can be admissible for the 

same purposes and under the same conditions enumerated in 

Goldsberry, see Kaufman, 202 P.3d at 552 (citing CRE 404(b)); 

People v. Beasley, 43 Colo. App. 488, 492, 608 P.2d 835, 838 (1979) 

(citing Goldsberry and CRE 404(b)). 

¶ 14 Generally, the erroneous admission of evidence is remedied by 

instructing the jurors to disregard it. Vigil v. People, 731 P.2d 713, 

716 (Colo. 1987); Lahr, ¶ 25, 316 P.3d at 80. Absent evidence to 

the contrary, we presume jurors follow such an instruction. Lahr, 
7

¶ 25, 316 P.3d at 80. The supreme court noted in Goldsberry that 

where the prosecution has intentionally elicited the prejudicial 

information, evidence of a defendant’s guilt is “thin,” and if the 

proof of at least one of the essential elements of the crime charged 

is entirely circumstantial, a trial court’s cautionary instruction will 

not suffice. Goldsberry, 181 Colo. at 409, 509 P.2d at 803. 

However, the supreme court has since clarified that “[t]he 

circumstances are . . . rare where we . . . will depart from the 

presumption that a jury follows a court’s curative instructions.” 

Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091 (Colo. 2011); see 

also People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001) 

(acknowledging Goldsberry but concluding that court’s instruction 

was sufficient to cure prejudice); People v. Gillispie, 767 P.2d 778, 

780 (Colo. App. 1988) (“[A]n instruction is inadequate only when 

evidence is so prejudicial that, but for its exposure, the jury might 

not have found the defendant guilty.”). 

C. Analysis

¶ 15 Here, grandmother’s comment regarding “court proceedings on 

an alcohol problem” referred ambiguously to possible past 

criminality. It was a single, fleeting, nonresponsive comment. It 
8

did not necessarily reference any criminal behavior on the part of 

Salas, since “court proceedings” on an “alcohol problem” could also 

refer to civil and administrative proceedings involving alcohol 

consumption. See, e.g., § 27-81-112, C.R.S. 2016 (governing 

involuntary civil commitment of alcoholics); § 42-2-126, C.R.S. 

2016 (governing license revocation proceedings based on an 

administrative determination). 

¶ 16 The possibility that a reasonable juror inferred Salas’ guilt 

based on grandmother’s reference to an “alcohol problem” is highly 

attenuated. If such a comment had an impact on the jury, it was 

not “so prejudicial that, but for its exposure, the jury might not 

have found against the defendant.” People v. McNeely, 68 P.3d 540, 

542 (Colo. App. 2002) (citation omitted); see also People v. Ned, 923 

P.2d 271, 275 (Colo. App. 1996) (“Speculation of prejudice is 

insufficient to warrant reversal of a trial court’s denial of a motion 

for mistrial.”). 

¶ 17 Further, the trial court immediately instructed the jurors to 

disregard grandmother’s comment, and, absent exceptional 

circumstances where the evidence against Salas is thin, we 

presume that the jury followed such an instruction. This is 
9

particularly the case here because, unlike in Goldsberry, the 

remark was not intentionally elicited to prejudice Salas. See 

Goldsberry, 181 Colo. at 409, 509 P.2d at 803. Rather, the counsel 

for the defense elicited this information when she pressed 

grandmother further on whether Salas was employed full time. 

¶ 18 Because grandmother’s remark was fleeting, minimally 

prejudicial, and immediately followed by a curative instruction, we 

conclude that the trial court did not abuse its discretion when it 

denied Salas’ motion for a mistrial.

III. Grandmother’s Interview Video 

¶ 19 Salas next contends that the district court abused its 

discretion when it denied his request to play a videotaped interview 

of grandmother after concluding that she had not denied anything 

that would be subject to impeachment through a collateral source. 

We disagree.

¶ 20 After the victim told a family friend in California about Salas’ 

actions in August 2012, a San Bernardino sheriff contacted 

grandmother to talk about the sexual assault allegations. 

Grandmother told the sheriff that she knew of “one or two —

possibly two occasions” that Salas had been alone with the victim. 
10

Grandmother told the sheriff that the victim lived with her “99 

percent of the time.”

¶ 21 In October 2013, Detective Nash Gurule of the Denver Police 

Department interviewed grandmother. During the recorded 

interview, grandmother relayed information about the sexual 

assaults that she had learned from the victim, specifically: (1) 

“[mother] told me that . . . Salas would have [the victim] grab him”;

(2) “according to [mother], [the victim] said she never let him touch 

her uh, without any clothes on”; and (3) mother told grandmother

that the victim had touched Salas while he did not have clothes on, 

but that the victim had never taken her clothes off.

¶ 22 Detective Gurule also asked grandmother how long Salas and 

mother had lived together in their Denver apartment. Grandmother

explained that they lived there “maybe November of 2011 into like 

maybe January, February 2012. Right around that time . . . I know 

Christmas for sure of 2011. . . .” The detective then asked her, 

“[D]uring that time, how long do you think you had [the victim] at 

your house?” Grandmother misunderstood and replied, “[H]ow long 

did [the victim] stay there? Maybe, maybe a half a dozen times. . . 

.” The detective asked: “Stayed with you or stayed there?” 
11

Grandmother clarified and reiterated that the victim stayed at 

mother’s and Salas’ apartment “[m]aybe a half a dozen times” but 

did not identify any specific dates, nor did the detective ask for any.

¶ 23 At trial, grandmother testified that Salas, mother, and the 

victim lived with her in Denver from about September to November 

2011 until Salas and mother moved into their own apartment. The 

victim continued to live with grandmother because she was 

attending a school near grandmother’s house, but would 

occasionally visit and spend the night with mother and Salas on the 

weekends. Grandmother testified that one such occasion was 

during Christmas vacation. Grandmother testified that “once or 

twice Salas came himself to take [the victim] over there because 

[mother] was working and he would be watching her. The other 

times [mother] would come or maybe [mother] and Salas would 

come. It is a short period of time just to pinpoint those days.”

¶ 24 During cross-examination, defense counsel asked 

grandmother if she had spoken to the San Bernardino sheriff, 

mother, and Detective Gurule about the allegations, and 

grandmother answered affirmatively. Defense counsel asked if she 

had testified previously, and grandmother again affirmed. Defense 
12

counsel also asked if she had spoken with mother about the 

allegations on “numerous occasions,” and grandmother denied that 

she had spoken in detail with mother. Defense counsel then 

confronted grandmother with the statements she had made to 

Detective Gurule in which she relayed information she had learned 

from mother. Grandmother admitted to making each statement. 

Defense counsel then asked grandmother, “And nowhere in this 

interview do you say anything about [the victim] spending time with 

[mother] and Salas over Christmas vacation?” Grandmother agreed 

and explained that Detective Gurule did not ask her that question. 

Defense counsel later asked grandmother if she did not mention 

Christmas to the detective because of a lack of recollection. 

Grandmother reiterated that she did not mention it because she 

was “never asked the question.”

¶ 25 During redirect examination, the prosecutor asked 

grandmother if she had spoken to mother “in detail” about the 

sexual assaults, and grandmother denied doing so.

¶ 26 During recross-examination, defense counsel again questioned 

grandmother about the “details” she had learned from mother. 

Grandmother reiterated that she had heard things from mother, but 
13

had no knowledge of certain details. Defense counsel then 

confronted grandmother again with her statements to Detective 

Gurule in which she relayed information she had learned from 

mother. Grandmother again agreed that she had made the 

statements. Counsel asked grandmother if those were “details.” 

Grandmother agreed that they were.

¶ 27 The next day, defense counsel sought to admit and publish the 

interview between grandmother and Detective Gurule. The 

prosecutor objected, arguing that the video was not admissible 

under section 16-10-201, C.R.S. 2016, because grandmother had 

not denied at trial that she had made any inconsistent statements 

in the interview. Defense counsel argued that (1) grandmother’s 

testimony was “all over the board”; (2) she had been inconsistent 

regarding whether she had given details to the detective; and (3) she 

had made it sound as though she did not give certain evidence to 

the detective because he had not asked her for it, while “the whole 

flavor of that interview” demonstrated that the detective did not ask 

many questions because grandmother was extremely talkative and 

forthcoming, even volunteering information that the detective had 
14

not asked about. Defense counsel also argued that any irrelevant 

and prejudicial information on the video could easily be cut. 

¶ 28 The court denied defense counsel’s request to play the 

videotape, concluding that grandmother had not denied anything 

that would be subject to impeachment through the videotape:

Okay. Well, I was taking pretty careful — I 

paid pretty close attention to [grandmother’s] 

testimony, and I was trying to take some notes 

with respect to those areas in which she was 

impeached, and she didn’t deny anything. She 

didn’t claim lack of memory of anything. 

When she was confronted with the transcripts 

of things to impeach her, she agreed with what 

was in the transcripts. So, I don’t find that 

there’s anything more, or I don’t think there’s 

anything that she denied which would be 

subject to . . . impeachment through the 

collateral source or the source of the tape, 

which is — so, I just don’t find that, especially 

that the evidence is sufficiently impeaching as 

to the specific testimony that she gave here in 

court. So, I don’t feel this is admissible. So, I 

am going to deny the request, or refuse the 

evidence.

A. Standard of Review

¶ 29 The People assert that Salas has not properly preserved this 

issue for review because defense counsel did not identify whether 

his request to admit the video fell under CRE 613 or section 

16-10-201. We conclude that even though defense counsel did not 
15

cite either the rule or the statute in court, he preserved such claims 

for appeal because his arguments for submitting the video into 

evidence identified the subject matter of both the rule and the 

statute, and the trial prosecutor identified the statute on which 

Salas relies on appeal. We conclude that these circumstances were 

sufficient to preserve his claim. See People v. Melendez, 102 P.3d 

315, 322 (Colo. 2004) (“We do not require that parties use 

‘talismanic language’ to preserve particular arguments for appeal, 

but the trial court must be presented with an adequate opportunity 

to make findings of fact and conclusions of law on any issue before 

we will review it.” (quoting People v. Syrie, 101 P.3d 219, 223 n.7 

(Colo. 2004))); see also Martinez v. People, 2015 CO 16, ¶ 14, 344 

P.3d 862, 868 (“An adequate objection allows the trial court a 

meaningful chance to prevent or correct the error and creates a 

record for appellate review.” (citing Melendez, 102 P.3d at 322)).

¶ 30 Accordingly, we review the trial court’s decision to exclude the 

evidence for an abuse of discretion. People v. Welsh, 80 P.3d 296, 

304 (Colo. 2003). However, a trial court’s interpretation of a statute 

or rule governing the admissibility of evidence is reviewed de novo. 

People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009). A court abuses 
16

its discretion when its decision is manifestly arbitrary, 

unreasonable, or unfair, or when it misconstrues the law. People v. 

Acosta, 2014 COA 82, ¶ 75, 338 P.3d 472, 485.

¶ 31 A court’s erroneous exclusion of a witness’ prior inconsistent 

statements is reviewed for nonconstitutional harmless error. People 

v. Komar, 2015 COA 171M, ¶ 55, __ P.3d __, __ (citing Hagos v. 

People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119). Reversal is 

warranted only where the error “substantially influenced the verdict 

or affected the fairness of the trial proceedings.” Id. (citation 

omitted).

¶ 32 The People contend that it is unclear which alleged 

inconsistencies Salas relies on in his claim of error, arguing that 

Salas only broadly contends that grandmother “made statements at 

trial that were not consistent with prior statements she made to 

Detective Gurule, including statements regarding how often the 

victim spent time at her mother and Salas’ apartment.” Salas also 

references testimony related to grandmother’s conversation with a 

San Bernardino sheriff earlier in the year. To the extent Salas 

argues inconsistencies that were never raised in the trial court, we 

review them only for plain error. Melendez, 102 P.3d at 322; see 
17

also People v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304 (An 

issue is unpreserved for review when an objection is made “on 

unspecific grounds which would not have alerted the trial court to 

the issue of which the defendant now seeks review.”). Plain error 

must be both “obvious and substantial,” and must have “so 

undermined the fundamental fairness of the trial itself so as to cast 

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

People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (citations omitted). 

B. Applicable Law

¶ 33 The use of prior inconsistent statements in criminal trials is 

expressly governed by both statute and rule. People v. Saiz, 32 P.3d 

441, 445 (Colo. 2001); see also Montoya v. People, 740 P.2d 992, 

995-96 (Colo. 1987). 

CRE 613 comports generally with prior case 

law by prohibiting examination of a witness for 

impeachment by prior inconsistent statement 

until his attention has been called to the time, 

place, and circumstances of the prior 

statement and by barring the admission of 

extrinsic evidence to prove any prior statement 

that is conceded by the witness. 

Saiz, 32 P.3d at 445; see also Montoya, 740 P.2d at 995-96. In 

contrast, section 16-10-201 creates “a new rule of substantive 
18

evidence” for criminal cases by “eliminating the hearsay impediment 

to using prior inconsistent statements for the purpose of 

establishing a fact to which witness’ testimony and prior statement 

relate, as long as the witness is still available and his prior 

statement relates to a matter within his own knowledge.” Saiz, 32 

P.3d at 445; see also Montoya, 740 P.2d at 997-98. The statute 

“allows a prior inconsistent statement to be used as substantive 

evidence of the fact to which the statement relates,” and it “does not 

include the foundation requirement that a witness must have 

denied or failed to remember the prior statement before it can be 

proved by extrinsic evidence.” Montoya, 740 P.2d at 996. The 

statute provides: 

(1) Where a witness in a criminal trial has 

made a previous statement inconsistent with 

his [or her] testimony at the trial, the previous 

inconsistent statement may be shown by any 

otherwise competent evidence and is 

admissible not only for the purpose of 

impeaching the testimony of the witness, but 

also for the purpose of establishing a fact to 

which his [or her] testimony and the 

inconsistent statement relate, if:

(a) The witness, while testifying, was given an 

opportunity to explain or deny the statement 

or the witness is still available to give further 

testimony in the trial; and
19

(b) The previous inconsistent statement 

purports to relate to a matter within the 

witness’s own knowledge.

§ 16-10-201. While section 16-10-201 also relaxes the foundational 

requirements for impeachment by prior inconsistent statement in 

some respects, CRE 613 does not conflict with the statute and 

continues to apply in civil cases and in criminal cases in which the 

foundational requirements of the statute are not met. Saiz, 32 P.3d 

at 445; see also Montoya, 740 P.2d at 997-98. 

¶ 34 In Saiz, the supreme court addressed the admissibility of a 

videotaped interview containing prior inconsistent statements under 

the statute. It held that the trial court did not abuse its discretion 

in excluding a videotape of the defendant’s minor son which 

contained inconsistent statements. This was because, even though 

the video evidence demonstrated inconsistent statements, “the 

defense was in no way limited from introducing extrinsic evidence of 

those statements.” Saiz, 32 P.3d at 447. This was particularly so 

because the son contradicted himself during trial. Further, the 

video was offered solely to impeach the witness; there was no 

contention that the video would be any different from the testimony 

already offered to impeach the witness. “Without offering the 
20

videotape for any purpose other than to impeach [the witness’]

testimony . . . the defendant’s counsel asserted that this additional 

extrinsic evidence was admissible simply because it was a videotape 

of [the witness’] own words.” Id. The supreme court concluded: 

In light of the other evidence already admitted 

and the offer of proof before it, the trial court’s 

ruling amounted to little more than a 

determination that under the circumstances of 

this case the defendant was not entitled to 

introduce a videotape to show the same

statements that it had already shown by 

uncontested testimony. 

Id. at 449. 

C. Analysis

¶ 35 Both parties concede that the video is not admissible under 

CRE 613. Salas did not argue specifically that the video was 

admissible under section 16-10-201 at trial, but asserts on appeal 

that the district court misapplied section 16-10-201 in excluding 

the tape because he was not required to confront grandmother with 

her inconsistent testimony in order for it to be admissible.

¶ 36 Here, as in Saiz, the district court did not abuse its discretion 

in excluding the videotaped interview of grandmother after defense 
21

counsel sufficiently confronted grandmother with her inconsistent 

statements and she either explained or conceded them. 

¶ 37 The district court denied defense counsel’s request to play the 

tendered videotape after concluding that grandmother had not 

denied anything that would be subject to impeachment. During 

grandmother’s trial testimony, defense counsel presented direct 

quotes of her inconsistent statements from her videotaped 

interview, and she conceded those inconsistencies. The statements 

that she did not concede related to the amount of time that the 

victim had spent with her, which she sought to explain. Defense 

counsel argued that the videotape was admissible because the 

applicable foundational requirements were met, the videotaped 

interview demonstrated that grandmother was “talkative,” and the 

jurors needed the overall “flavor” of the interview to assess 

grandmother’s testimony. 

¶ 38 Defense counsel thoroughly impeached grandmother during 

cross-examination and, in offering the videotaped interview, did not 

assert that anything in it would differ from grandmother’s 

cross-examination testimony. See id. at 450. Further, “[t]he jury 

was not shielded in any way from [the witness’] apparent 
22

contradictions but was able to observe, first hand, the nuances in 

questioning that led to his different responses.” Id. Thus, the trial 

court did not abuse its discretion in excluding the videotape 

because Salas’ offered purpose had already been accomplished by 

his cross-examination of grandmother. To the extent there were 

any inconsistencies between the interview and grandmother’s trial 

testimony, grandmother admitted them. Thus, admission of the 

video would have been cumulative. The trial court could have 

properly excluded the video on that basis alone. See CRE 403 

(“Although relevant, evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations 

of undue delay, waste of time, or needless presentation of 

cumulative evidence.”); see also Saiz, 32 P.3d at 445-49.

¶ 39 Accordingly, we conclude that the district court did not abuse 

its discretion in refusing to admit the videotape. 

IV. SVP Designation

¶ 40 Last, Salas contends that the trial court’s determination that 

he qualified as an SVP failed to satisfy statutory and due process 

requirements because the court never made specific findings of fact 
23

in support of its determination as required by section 18-3-414.5(2), 

C.R.S. 2016. We agree that the court’s analysis did not satisfy the 

statute and related case law.

¶ 41 Prior to Salas’ sentencing, a probation officer completed a 

Colorado Sexually Violent Predator Assessment Screening 

Instrument (SVPASI), as required by section 18-3-414.5. The 

probation officer found that Salas satisfied the criteria for SVP 

designation, in part because he promoted a relationship with the 

victim primarily for the purpose of sexual victimization. The 

SVPASI was provided to the court at sentencing along with a 

presentence investigation report (PSI) summarizing the facts and 

background of the case. At sentencing, the prosecutor asked “that 

the Court find that Salas is a sexually violent predator per the 

assessment.” After imposing a sentence, the trial court stated, “Oh, 

and also based upon the [SVPASI] report, Salas meets the criteria of 

a sexually violent predator.”

A. Review of SVP Designation on Appeal

¶ 42 Initially, the People contend that because an SVP designation 

is a civil matter and because Salas did not object to the SVP 

designation in the trial court and preserve the issue for appeal, we 
24

should not review this claim of error. See Estate of Stevenson v. 

Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992) 

(“Arguments never presented to, considered or ruled upon by a trial 

court may not be raised for the first time on appeal.”). However, we

disagree.

¶ 43 The People assert that “though the SVP statute is housed in 

the criminal code, the designation is met with a civil burden of 

proof.” People v. Allen, 2013 CO 44, ¶ 7, 307 P.3d 1102, 1105. Cf. 

People v. Daly, 313 P.3d 571 (Colo. App. 2011) (restitution is a civil 

judgment independent of a defendant’s conviction). As a result, 

they argue, an SVP designation is not part of a criminal proceeding

and it is not a punishment. Therefore, “a trial court’s decision to 

designate an offender as an SVP is legally and practically distinct 

from its sentencing function.” Allen, ¶ 7, 307 P.3d at 1105; see also 

People v. Stead, 66 P.3d 117, 123 (Colo. App. 2002), overruled by 

Candelaria v. People on other grounds, 2013 CO 47, 303 P.3d 1202. 

However, the Allen court did not suggest that an SVP designation 

imposed in a criminal case pursuant to a criminal statute is not 

part of a criminal proceeding subject to direct appeal in a criminal 

case. It only concluded that appellate courts must defer to a trial 
25

court’s factual SVP findings when they are supported by the record 

and review de novo the trial court’s legal conclusions regarding 

whether an offender should be designated as an SVP. Allen, ¶ 4, 

307 P.3d at 1105.

¶ 44 Before Allen, multiple divisions of this court held that when a 

defendant fails to object to a lack of specific findings on an SVP 

designation, we review for plain error. See, e.g., People v. Mendoza, 

313 P.3d 637, 641 n.4 (Colo. App. 2011); People v. Loyas, 259 P.3d 

505, 511 (Colo. App. 2010); People v. Buerge, 240 P.3d 363, 369 

(Colo. App. 2009). However, since Allen established that an SVP 

designation carries a civil burden of proof, no court has addressed 

the People’s contention that we may not review an SVP designation 

when a defendant has not preserved the issue for appeal. 

¶ 45 We conclude that although the SVP designation is not a 

criminal punishment, it is only imposed in conjunction with a 

criminal conviction and thus should not be separated from the 

appeal of criminal trial issues. This is particularly so because an 

SVP designation only accompanies a conviction of a sexual offense. 

See § 18-3-414.5(2) (When an offender has been convicted of a 

sexual offense listed in this section, “the court shall make specific 
26

findings of fact and enter an order concerning whether the 

defendant is a sexually violent predator” based on the SVPASI.). 

¶ 46 Considering the logic above and the holdings of various 

divisions of this court prior to the decision in Allen, we reject the 

People’s contention that we should not review Salas’ unpreserved 

challenge to his SVP designation, and therefore review the merits of 

his claim for plain error, following the pre-Allen decisions by 

divisions of this court noted above. See, e.g., Mendoza, 313 P.3d at 

641 n.4. 

B. Standard of Review

¶ 47 A trial court’s SVP designation involves a mixed question of 

law and fact. Allen, ¶ 4, 307 P.3d at 1105. We must defer to a trial 

court’s factual findings if they are supported by the record, but 

review any legal conclusions de novo. Id. 

C. Applicable Law

¶ 48 A trial court shall designate an offender an SVP when the 

offender: (1) was eighteen years of age or older as of the date of the 

offense; (2) was convicted of an enumerated sexual offense; (3) 

committed the offense against a victim who was a stranger or was a 

person with whom the offender established or promoted a 
27

relationship primarily for the purpose of sexual victimization; and 

(4) is likely to recidivate. § 18-3-414.5(1)(a)(I)-(IV); Allen, ¶ 6, 307 

P.3d at 1105.

¶ 49 When a defendant is convicted of an enumerated offense, the 

probation department completes an SVP assessment. 

§ 18-3-414.5(2). “Based on the results of the assessment, the court 

shall make specific findings of fact and enter an order concerning 

whether the defendant is a sexually violent predator.” Id.

¶ 50 The trial court is ultimately responsible for determining 

whether a defendant satisfies the four elements of the SVP statute. 

Uribe-Sanchez v. People, 2013 CO 46, ¶ 8, 307 P.3d 1090, 1091-92. 

“In making this ultimate determination, the trial court relies on 

both the statute itself, and on the appellate courts’ interpretations 

of the language employed by the General Assembly.” Candelaria, 

¶ 9, 303 P.3d at 1204. 

¶ 51 At the time of the trial court’s SVP determination, the supreme 

court had already announced the legal test for trial courts to apply 

when determining if a defendant established or promoted a 

relationship for SVP purposes. See People v. Gallegos, 2013 CO 45, 

307 P.3d 1096. In Gallegos, the court explained that the SVP 
28

statute “does not grant the [Sex Offender Management Board 

(SOMB)] the authority to define [the] terms” contained in the third 

element of the statute. Id. at ¶ 10, 307 P.3d at 1100. The portion 

of the SVPASI utilized in this case that provides definitions or 

criteria for the qualifying relationship types (stranger, established, 

or promoted) is not authorized by statute, and it is not the proper 

test for determining whether a defendant’s relationship with the 

victim satisfies the SVP statute. See id.; People v. Tunis, 2013 COA 

161, ¶ 39, 318 P.3d 524, 531-32 (Because the statute does not 

authorize the SOMB to define the phrases “established a 

relationship” or “promoted a relationship,” the reviewing court 

“must disregard the two-step inquiry and underlying criteria 

identified in the screening instrument.”). In fact, because the 

SOMB does not have the authority to define the terms in the 

relationship criterion of the SVP statute, district courts should 

disregard the screening instrument’s description of factors for 

determining whether an offender established or promoted a

relationship with the victim primarily for purposes of sexual 

victimization. See Gallegos, ¶ 10, 307 P.3d at 1100; see also Tunis, 

¶ 39, 318 P.3d at 531 (after Gallegos, “we must disregard” the 
29

screening instrument’s findings regarding the relationship 

criterion).

¶ 52 The Gallegos court further held that a defendant’s conduct 

during the commission of the sexual assault or offense cannot be 

used to satisfy the relationship element of the SVP statute. 

Gallegos, ¶¶ 10-21, 307 P.3d at 1101-02; see also Uribe-Sanchez, 

¶¶ 4-11, 307 P.3d at 1091-92 (defendant’s conduct during offense 

could not be considered in determining whether he promoted 

relationship with victim for purpose of sexualization); Tunis, ¶ 41, 

318 P.3d at 532 (recognizing that reliance on the facts of the 

assault “is now precluded” by Gallegos). To satisfy the “promoted a 

relationship” criterion under the SVP statute, the offender, 

excluding his or her behavior during the commission of the 

offense(s), must have “otherwise encouraged a person with whom he 

had a limited relationship to enter into a broader relationship 

primarily for the purpose of sexual victimization.” Gallegos, 

¶¶ 14-15, 307 P.3d at 1100-01. 
30

D. Analysis

¶ 53 Here, the district court erred in not using the legal definitions 

established in Gallegos. Thus, a remand is necessary for the trial 

court to apply those definitions after making findings of fact. 

¶ 54 The SVPASI concluded Salas did not meet the “stranger” 

criterion or the “established a relationship” criterion but met the 

“promoted a relationship” criterion. While the district court 

designated Salas as an SVP “based on the assessment,” it made no 

factual findings on whether Salas “encouraged” the victim “to enter 

into a broader relationship primarily for the purpose of sexual 

victimization,” as required by statute. See, e.g., id. at ¶¶ 14-17, 307 

P.3d at 1100-01; Tunis, ¶¶ 37-40, 318 P.3d at 531-32.

¶ 55 The People assert that because the PSI and SVPASI included 

other accounts of sexual assault between Salas and the victim and 

because the court explicitly stated that it was relying on the 

assessment in making its determination, the court did not err in 

designating Salas as an SVP. However, “we examine the court’s 

findings and the testimony at the sentencing hearing using the 

definition in Gallegos . . . .” Tunis, ¶ 39, 318 P.3d at 532. Because 

the court relied on the screening instrument’s description of factors 
31

when determining whether Salas met the relationship criterion of 

the SVP statute and made no findings on any of the criteria in the 

statute, we are unable to determine whether the court erred in 

designating Salas an SVP. 

¶ 56 Having determined that the court should not have relied on 

the screening instrument for its finding that Salas met the 

relationship criterion of the SVP statute, we next consider whether 

that error requires reversal, as Salas asserts. 

¶ 57 We conclude that the error committed in this case was plain. 

It was obvious because the court did not follow the holding in 

Gallegos in making its own factual findings relevant to whether 

Salas was an SVP. While evidence in the record might support the 

conclusion that Salas either established or promoted a relationship 

with the victim primarily for purposes of sexual victimization under 

the Gallegos standards, the court did not make specific factual 

findings on the matter. Other evidence might lead to the opposite 

conclusion. We perceive that such error was substantial and casts 

serious doubt on the reliability of the SVP designation. Therefore, 

we vacate the court’s SVP designation and remand to the trial court 
32

so that it can make specific findings of fact regarding Salas’ SVP 

designation. See Gallegos, ¶ 2, 307 P.3d 1098.

V. Conclusion

¶ 58 Accordingly, the judgment and sentence are affirmed. The

SVP designation is vacated, and the case is remanded to the trial 

court to make specific findings of fact supporting its determination 

whether Salas is an SVP, including regarding the relationship 

criterion of the SVP statute, in accordance with the holding in 

Gallegos.

JUDGE GRAHAM and JUDGE NAVARRO concur.