Peo v. Countryman

22CA2107 Peo v Countryman 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2107
Jefferson County District Court No. 16CR2961
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cody Allen Countryman,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Brown and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Cody Allen Countryman, appeals the

postconviction court’s order denying his Crim. P. 35(c) motion

seeking postconviction relief and requesting a proportionality review

of his sentence. We affirm.

I. Background

¶2 In the summer of 2016, the then-eight-year-old victim reported

to her mother that Countryman had touched her underneath her

underwear and put his finger in her. The victim also disclosed

other instances of touching. The victim’s mother took the victim to

a hospital, where she underwent a forensic examination.

Countryman’s DNA was not found on the victim’s genitals or her

underwear.

¶3 The prosecution charged Countryman with sexual assault on a

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

one in a position of trust as part of a pattern of abuse.

¶4 At trial, the jury heard directly from the victim and

Countryman. The victim testified that while watching a movie in

her bedroom with Countryman, he started touching her and “stuck

his finger in the hole in [her] vagina.” Countryman defended on the

theory that the victim was attention seeking, though he admitted

1
that their bodies “could have touched” while he was watching the

movie in bed and under the covers with the victim.

¶5 As to the lack of DNA evidence, it was undisputed that the

victim’s genitals had been cleaned with an alcohol wipe at the

hospital. What was disputed was whether the cleaning occurred

before or after the forensic exam. The victim’s mother testified that

she cleaned the victim with an alcohol wipe before the forensic

exam, but the victim contradicted that testimony and stated that

she cleaned herself with the alcohol wipe after the forensic exam.

An expert witness testified that based on her review of the medical

records, she guessed that the alcohol wipe was done before the

exam — though she admitted that she didn’t know for sure when

the victim had been wiped with alcohol.

¶6 The jury convicted Countryman as charged, and the court

sentenced him to a controlling prison sentence of eight years to life.

¶7 Countryman appealed his conviction, and a division of this

court affirmed. People v. Countryman, (Colo. App. No. 18CA0207,

July 16, 2020 (not published pursuant to C.A.R. 35(e))

(Countryman I).

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¶8 Countryman then timely filed a Rule 35(c) motion raising

multiple ineffective assistance of counsel claims and requesting a

proportionality review of his sentence.

¶9 In a comprehensive written order, the postconviction court

denied the ineffective assistance of counsel claims without a

hearing and concluded that the request for a proportionality review

wasn’t cognizable under Rule 35(c).

¶ 10 On appeal, Countryman challenges the denial of his ineffective

assistance of counsel claims and the court’s refusal to consider his

request for a proportionality review.

II. Ineffective Assistance of Counsel

¶ 11 We start with Countryman’s contention that the

postconviction court erred by denying his multiple ineffective

assistance of counsel claims without a hearing.

A. Legal Principles and Standard of Review

¶ 12 To prevail on a claim of ineffective assistance of counsel, a

defendant must show that his lawyer’s performance was deficient —

meaning certain acts or omissions of counsel were “outside the wide

range of professionally competent assistance.” Strickland v.

Washington, 466 U.S. 668, 690 (1984). The defendant must also

3
show that the deficient performance prejudiced his defense —

meaning there is a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. Id. at

694. A claim may be denied if the factual allegations are

insufficient to establish either Strickland prong. Ardolino v. People,

69 P.3d 73, 77 (Colo. 2003).

¶ 13 A defendant is entitled to an evidentiary hearing on his Rule

35(c) motion when he alleges facts that, if true, would entitle him to

relief. White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo. 1988).

But a postconviction court may deny a motion without a hearing if

the allegations are bare and conclusory; the allegations, even if

true, do not warrant postconviction relief; or the claims are directly

refuted by the record. People v. Duran, 2015 COA 141, ¶ 9; accord

Ardolino, 69 P.3d at 77.

¶ 14 We review the denial of a Rule 35(c) motion without a hearing

de novo. People v. Castillo, 2022 COA 20, ¶ 15.

B. Failure to Investigate Medical Records and Hospital Staff

¶ 15 In his Rule 35(c) motion, Countryman alleged that his trial

counsel failed to conduct an adequate investigation by not

subpoenaing medical records and hospital staff to determine

4
whether the victim had been cleaned with an alcohol wipe before or

after the forensic examination.

¶ 16 The postconviction court rejected this claim because trial

counsel “was in possession of the medical records” and because the

motion alleged no facts to suggest that expert testimony or records

existed to rebut mother’s testimony that she cleaned the victim with

an alcohol swab before the forensic examination.

¶ 17 On appeal, Countryman maintains that trial counsel was

ineffective by failing to “subpoena medical records and staff” from

two hospitals and to investigate whether the alcohol wipe had been

used before or after the forensic examination.

¶ 18 We reject the claim that trial counsel was deficient for not

subpoenaing hospital medical records because the record shows

that trial counsel had those records. Indeed, Countryman doesn’t

dispute the postconviction court’s finding that the prosecution

disclosed the records before trial. It was therefore objectively

reasonable for trial counsel to not waste time and resources to

subpoena records he already possessed. See Strickland, 466 U.S. at

687-88 (noting a lawyer’s performance is only deficient if it is

objectively unreasonable); see also Dunlap v. People, 173 P.3d 1054,

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1065 (Colo. 2007). And the Rule 35(c) motion doesn’t allege any

facts to suggest that other medical records existed that should have

been subpoenaed. Thus, the motion failed to allege sufficient facts

to establish deficient performance.

¶ 19 As to Countryman’s claim that trial counsel should have

subpoenaed unidentified hospital “staff,” it fares no better. Beyond

this bare allegation, the Rule 35(c) motion did not identify what staff

should have been subpoenaed, what knowledge the staff had, or

how subpoenaing any staff would have turned up “substantial

evidence” that “might reasonably have led to a different result.”

People v. Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994); see

also People v. Villanueva, 2016 COA 70, ¶ 67 (A defendant “must do

more than simply allege that other evidence could have aided his

defense; he must identify the evidence and demonstrate that it

would have advanced his defense.”). Though Countryman wasn’t

required to present evidence at this stage, the vague and conclusory

assertion that trial counsel should have subpoenaed unidentified

hospital staff is nonetheless insufficient to allege Strickland

prejudice.

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¶ 20 Finally, to the extent Countryman generally asserts that had

trial counsel investigated, he could have established that the

alcohol wipe was used after the forensic examination, he alleged no

facts to support that conclusory and speculative claim. Duran, ¶ 9.

¶ 21 We therefore conclude that the postconviction court did not err

by denying this claim without a hearing.

C. Opening the Door to Inadmissible Evidence — Opening
Statement

¶ 22 Countryman alleged in his Rule 35(c) motion that his trial

counsel’s opening statement — which asserted that the victim’s

“intact hymen” essentially refuted her claim of digital penetration —

opened the door to bolstering expert testimony that the absence of

physical injury was “common” and “expected” in child sex assault

cases. Thus, he alleged his counsel’s deficient performance

prejudiced him.

¶ 23 The postconviction court rejected this claim because no expert

ever testified that the absence of physical injury was either

“common” or “expected.” Rather, an expert in pediatric nursing and

sexual assault exams simply responded “no” when asked “[d]o you

always find injury” when a child alleges digital penetration. Then,

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on cross-examination, the expert testified that she would not expect

there to be “trauma” after digital penetration and that “we expect

[kids] to have normal exams.”

¶ 24 On appeal, Countryman concedes that the prosecution did not

elicit an “opinion that it was ‘common’ to find no injury on children

alleging digital penetration.” But he argues that trial counsel

“functionally elicited that opinion himself on cross-examination.”

¶ 25 But Countryman did not allege in his Rule 35(c) motion that

his counsel was ineffective during cross-examination; he challenged

counsel’s opening statement remarks. And we do not consider

claims or allegations not raised and developed in the postconviction

motion. See People v. Stovall, 2012 COA 7M, ¶ 3 (ineffective

assistance of counsel claims that were not sufficiently presented to

the postconviction court may not be raised for the first time on

appeal); see also People v. Rodriguez, 914 P.2d 230, 251 (Colo.

1996) (rejecting the defendant’s attempt to use his appellate brief

“to fortify a number of issues inadequately raised or supported by

his [postconviction] motion”).

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D. Failure to Consult with a Medical Expert

¶ 26 Related to his claim that counsel was ineffective by opening

the door to prejudicial expert testimony, Countryman alleged in his

Rule 35(c) motion that his counsel was additionally ineffective —

and “compounded the prejudice” from the “otherwise inadmissible

expert witness testimony” — because he failed to “present” an

expert “on the same issue” and “consult with an expert witness on

the question of physical evidence.”

¶ 27 The postconviction court rejected that claim. It concluded that

because the expert did not testify that physical injury was common

or expected in child sex assault cases, trial counsel was not

ineffective for not presenting “contrary evidence through an expert

witness.”

¶ 28 Countryman doesn’t now appear to challenge the

postconviction court’s ruling on the failure to present an expert

witness. Rather, as we understand it, he contends that the

postconviction court erred by not considering his claim that his

counsel was ineffective by failing to consult with a medical expert

before (1) claiming in opening statement that the victim would have

9
had injuries had she been sexually assaulted and (2) “cross-

examining the prosecution’s expert on this topic.”

¶ 29 Even assuming Countryman separately alleged that his

counsel was deficient for failing to consult a medical expert, the

motion failed to sufficiently allege Strickland prejudice. That’s

because the prejudice allegations are all tied to the premise that the

expert testified that the absence of physical injury is “common” and

“expected” in child sexual assault cases. But, as discussed, that

evidence was not presented. And the motion alleged no other facts

to establish what information an expert consultation would have

yielded or how, had an expert been consulted, the outcome of either

cross-examination or the trial would have been different. It’s not

enough to speculate about what information a consultation could

have produced or to simply assert that the outcome of the trial

would have been different. Villanueva, ¶ 68 (conclusory allegations

of prejudice are insufficient under Strickland); see also People v.

Pendleton, 2015 COA 154, ¶ 34 (“[T]he mere possibility that

10
additional investigation would have revealed useful information

does not establish ineffective assistance.”).1

¶ 30 We therefore conclude that the postconviction court properly

denied this claim without a hearing, though on slightly different

grounds. See People v. Vondra, 240 P.3d 493, 494 (Colo. App.

2010).

E. Opening the Door to Bolstering Testimony — Cross-
Examination

¶ 31 During his cross-examination of the victim’s stepfather, trial

counsel elicited testimony that the stepfather — who had been

Countryman’s best friend for decades — did not believe the victim

at the time of the initial outcry and told Countryman and the police

as much. Counsel then elicited testimony that the stepfather had

since changed his mind. On redirect and with no objection, the

stepfather confirmed that he now “believed” the victim and believed

“that something happened.” When asked why the change, the

stepfather replied, “Mostly therapy every week,” and he explained

1 Because Countryman’s allegations are insufficient under Colorado

law, his reliance on Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001),
isn’t instructive.

11
that as he learned more of the details, the situation made more

sense.

¶ 32 Countryman alleged in his Rule 35(c) motion that trial counsel

was ineffective by eliciting testimony about the stepfather’s initial

reaction to the allegation because it led to improper bolstering

testimony on redirect. And he alleged that the bolstering testimony

was “powerful evidence” that was “prejudicial to [Countryman] at

trial and on appeal.”

¶ 33 The postconviction court rejected the claim, finding that trial

counsel’s questioning was a “strategic decision” that allowed

counsel to later lay the foundation for expert testimony that raised

issues about the victim’s reliability.

¶ 34 Countryman argues that the postconviction court erred by

denying this claim without a hearing and essentially assuming a

strategic basis for trial counsel’s “decision to open the door to” the

bolstering testimony. And he argues that he sufficiently alleged

prejudice.

¶ 35 Absent evidence about trial counsel’s reasoning for the

questioning that seemingly led to bolstering testimony, the record

presented is insufficient for us to conclude that trial counsel’s

12
questioning was a strategic choice or even a necessary predicate to

his expert’s testimony. See Dunlap, 173 P.3d at 1075 (a reviewing

court must examine counsel’s reasons supporting alleged strategic

decisions); see also Ardolino, 69 P.3d at 79 (“With regard to strategic

choices, the credibility of [trial] counsel can be particularly

important and is a matter to be resolved by the postconviction

court.”). Thus, the postconviction court erred by rejecting the claim

on the deficient performance prong.

¶ 36 Even so, we conclude the postconviction court properly denied

the claim without a hearing because the Rule 35(c) motion fails to

allege Strickland prejudice. At most, the motion alleged that the

bolstering testimony was harmful, Countryman was “prejudiced” at

trial and on appeal by the questioning that led to improper

bolstering testimony, and the conviction must be “reversed.” But

the motion failed to allege facts that, if true, show a reasonable

probability that but for trial counsel’s alleged deficient performance,

Countryman would not have been convicted, or that the outcome of

the appeal would have been different. See Strickland, 466 U.S. at

690; see also Villanueva, ¶¶ 68-69.

13
¶ 37 Because Countryman did not sufficiently allege prejudice, the

postconviction court did not err by denying this claim without a

hearing.

F. Failure to Disclose Expert Opinion

¶ 38 During trial, the court prohibited a defense expert from

offering an opinion on the adequacy of the police investigation and

evidence collection because the expert’s report didn’t sufficiently

disclose that opinion.

¶ 39 On direct appeal, a division of this court agreed that the

opinion hadn’t been sufficiently disclosed but held that the court

abused its discretion by excluding a portion of the expert’s opinion.

Countryman I, slip op. at ¶¶ 39-52. Even so, the division found that

the “minor limitation” on the expert’s testimony was harmless

because the error did not substantially influence the verdict or

affect the fairness of the trial proceedings. Id. at ¶ 52.

¶ 40 Countryman pursued a related claim in his Rule 35(c) motion,

alleging that counsel’s failure to adequately disclose the expert’s

opinion was deficient and prejudicial. The postconviction court

rejected the claim, disagreeing that “but-for the exclusion of one

14
small portion of [one expert’s] testimony there is a reasonable

probability that the result of the trial would have been different.”

¶ 41 Countryman argues that he sufficiently alleged prejudice. But

he doesn’t address the fact that Countryman I already concluded

that the exclusion of a minor portion of one expert’s testimony was

harmless. And the burden of demonstrating Strickland prejudice is

“more difficult” than establishing harmless error. Hagos v. People,

2012 CO 63, ¶ 13. Having been unable to demonstrate harmless

error, Countryman doesn’t explain how his allegations are sufficient

to establish the more difficult Strickland standard.

¶ 42 Nor does the Rule 35(c) motion help. As to prejudice, the

motion alleged only that “[t]he absence of any DNA evidence linking”

Countryman to the sexual assault was “hotly contested” and that

the expert “would have testified that the absence of any DNA or

other physical evidence, and the exposure of the [victim] to multiple

different questioning sessions by family members, medical

personnel, and law enforcement, all tended to make the [victim’s]

allegations” less reliable.

¶ 43 But the record refutes this allegation. The court didn’t exclude

testimony about the “absence” of DNA or physical evidence. Indeed,

15
the jury heard that Countryman’s DNA was not found on the victim

or her underwear. And the jury heard that the victim was

questioned multiple different times by family members, law

enforcement, medical personnel, and therapists. Beyond that,

Countryman presented a separate expert qualified in DNA analysis

and forensic testing who testified to mistakes in the DNA collection

procedures and swabs that should have been collected from the

victim and Countryman. And even with the limited restriction on

one expert’s ability to testify about police investigative procedures,

that expert still testified about forensic interviews of children,

memory, and suggestibility. He testified about the factors that

made this investigation difficult and opined that the victim “may

well be providing information that’s not accurate.” Based on the

lack of corroborating physical evidence, trial counsel argued that

the victim’s statements weren’t reliable and that “kids can come to

believe something sincerely that’s just not true.”

¶ 44 For these reasons, the postconviction court properly denied

this claim without a hearing.

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G. Failure to Disclose Criminal History

¶ 45 After the jury rendered its verdict, trial counsel learned that

the prosecution had not disclosed that the victim’s mother had

pleaded guilty to a petty offense (disorderly conduct) in another

jurisdiction and had a pending misdemeanor child abuse charge in

the same jurisdiction where Countryman was prosecuted. Trial

counsel filed a motion for a new trial under Crim. P. 33(a) based on

the newly discovered evidence but did not argue that mother’s

criminal history should have been disclosed under Brady v.

Maryland, 373 U.S. 83 (1963). The trial court denied the motion,

finding that mother’s credibility was “not central to the case” and

that the newly discovered information was not material and “most

probably would not have resulted in a different outcome at trial.”

¶ 46 On direct appeal, Countryman challenged the trial court’s

denial of his motion for a new trial, but he added a claim that the

evidence was exculpatory and should have been disclosed under

Brady. See Countryman I, slip op. at ¶ 53. Reviewing the Brady

claim for plain error, the division concluded that the undisclosed

evidence was “merely impeaching” and “given the marginal potential

17
value of the evidence,” the prosecution’s failure to disclose the

criminal charges didn’t require reversal. Id. at ¶¶ 71-72.

¶ 47 Countryman renewed the Brady claim in his Rule 35(c)

motion, alleging that counsel’s failure to raise the Brady claim was

deficient and prejudicial. The postconviction court rejected the

claim, finding no “reasonable probability that the impeachment of

[mother] would have resulted in a different result at trial.”

¶ 48 To establish a Brady violation, a defendant must show that

(1) the prosecution suppressed evidence; (2) the evidence is

exculpatory or favorable to the defendant; and (3) the suppressed

evidence is material to the case. People v. Bueno, 2018 CO 4, ¶ 29

(citing People v. Pope, 724 P.2d 1323, 1325 (Colo. 1986)).

Materiality requires a “reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would

have been different.” Id. at ¶ 32 (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)).

¶ 49 For two reasons, we conclude that the undisclosed criminal

history was not material under Brady. First, Countryman neither

alleged nor argues that the petty offense plea or the pending

misdemeanor charge would be admissible under the Colorado Rules

18
of Evidence. Second, even assuming that the evidence could have

been admitted, we agree with the Countryman I division that the

evidence had “marginal potential value.” Countryman I, slip op. at

¶ 72. Neither offense related to Countryman or the charged crimes.

One occurred in a different jurisdiction entirely. And even if the

relatively minor offenses had any impeachment value, mother was

not a material witness. After all, she was not a witness to the sex

assault and had no personal knowledge about the assault. True,

mother testified that the alcohol swab occurred before the forensic

exam, but the victim directly contradicted mother’s testimony. At

bottom, this case boiled down to whether the jury believed the

victim or Countryman, and mother’s testimony wasn’t relevant on

that point.

¶ 50 Given all this, we conclude that the postconviction court

properly denied this claim without a hearing.

H. Cumulative Ineffective Assistance of Trial Counsel

¶ 51 Countryman contends that his trial counsel’s errors

cumulatively deprived him of his right to effective assistance of

counsel.

19
¶ 52 Even if we assume that the cumulative error doctrine applies

to ineffective assistance of counsel claims, because we have

concluded that none of Countryman’s claims warrants a hearing, a

cumulative error analysis is not required. See People v. Villa, 240

P.3d 343, 359 (Colo. App. 2009) (cumulative error analysis is

required only when multiple errors have been identified).

I. Confrontation Rights

¶ 53 Countryman doesn’t challenge the postconviction court’s

denial of his claim that the trial court violated his confrontation

rights by improperly restricting the scope of “cross-examination of

key prosecution witnesses.” We therefore deem that claim

abandoned. See People v. Brooks, 250 P.3d 771, 772 (Colo. App.

2010) (“[A]ny arguments [the] defendant made in his [Rule 35(c)]

motions that are not specifically reasserted on appeal are

abandoned, and we therefore do not address them.”).

J. Ineffective Assistance of Appellate Counsel

¶ 54 Countryman argues that his Rule 35(c) confrontation claim

was not a claim of trial court error, but rather, an ineffective

assistance of appellate counsel claim. He therefore contends that

the postconviction court erred by concluding otherwise.

20
¶ 55 The seven pages of Countryman’s Rule 35(c) motion devoted to

this claim argued that the “trial court’s improper restrictions” on

cross-examination violated Countryman’s confrontation rights. In

the final sentence, however, the motion alleged, “Further, because

appellate counsel could have and should have raised this issue on

direct appeal, [Countryman’s] right to effective assistance of

appellate counsel was violated.”

¶ 56 Even if we construe this sentence as alleging ineffective

assistance of appellate counsel, we reject it as bare and conclusory.

Duran, ¶ 9. To allege ineffective assistance of appellate counsel, the

Rule 35(c) motion needed to show that (1) the omitted appellate

issue was clearly stronger than those appealed; and (2) there is a

reasonable probability that, but for counsel’s errors, Countryman

would have prevailed on appeal. People v. Long, 126 P.3d 284, 286

(Colo. App. 2005). The bare allegation that appellate counsel failed

to assert an additional or different claim, without any comparison of

that claim to the claims that counsel did assert, “does not overcome

the presumption that appellate counsel’s choice was the result of a

21
strategic election.” People v. Trujillo, 169 P.3d 235, 239 (Colo. App.

2007).2

¶ 57 Thus, we conclude that Countryman was not entitled to a

hearing on this claim.

III. Proportionality Review

¶ 58 Finally, Countryman contends the postconviction court erred

by concluding that his request for a proportionality review is not

cognizable under Crim P. 35(c) because it “does not pertain to

ineffective assistance of counsel.” While we agree with Countryman

that a proportionality claim is cognizable under Crim. P. 35(c),

Castillo, ¶ 38, we conclude that Countryman’s proportionality claim

is procedurally barred. See Vondra, 240 P.3d at 494 (appellate

court may affirm district court’s ruling on different grounds).

¶ 59 Absent certain exceptions that Countryman doesn’t raise, a

court must deny a claim that was either raised and resolved or

could have been presented in a prior appeal. Crim. P. 35(c)(3)(VI),

(VII); see People v. Taylor, 2018 COA 175, ¶ 17 (The language

2 To the extent Countryman develops and expands his ineffective

assistance of appellate counsel claim on appeal, we don’t address
allegations not raised before the postconviction court. See People v.
Rodriguez, 914 P.2d 230, 251 (Colo. 1996).

22
directing a court to deny successive postconviction claims is

“mandatory rather than permissive.”).

¶ 60 In his request for a proportionality review, Countryman alleged

that Wells-Yates v. People, 2019 CO 90M, “provided new guidance

on proportionality litigation,” and that “this dramatic change in

proportionality analysis” entitled him to an extended proportionality

review. But Countryman’s premise that Wells-Yates dramatically

changed the nature of proportionality reviews isn’t correct. See

McDonald v. People, 2024 CO 75, ¶ 22. Thus, Countryman could

have raised his proportionality claim in his direct appeal. That’s

true even if he didn’t raise it before the postconviction court. People

v. Walker, 2022 COA 15, ¶ 50 (reviewing proportionality claim first

raised in a direct appeal).

¶ 61 Because Countryman could have raised his proportionality

claim in his direct appeal, and because no exception applies, the

postconviction court was required to deny the motion as successive.

See Crim. P. 35(c)(3)(VII); see also People v. Isom, 2015 COA 89,

¶ 32 (concluding the defendant’s constitutional challenge to his

indeterminate sentence was time barred and “successive because

23
[the defendant] could have raised it on direct appeal” but did not),

aff’d, 2017 CO 110.

IV. Disposition

¶ 62 The order is affirmed.

JUDGE BROWN and JUDGE SCHOCK concur.

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