Peo v. Larks

22CA1392 Peo v Larks 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1392
Weld County District Court No. 19CR2553
Honorable Allison J. Esser, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dante Ramon Larks,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Meirink and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Dante Ramon Larks, appeals his convictions for

one count of sexual assault aided by a deadly weapon, two counts

of sexual assault on a child by one in a position of trust as part of a

pattern of abuse, one count of aggravated incest, and one count of

child abuse. We affirm.

I. Background

¶2 The charges in this case stem from the report of Larks’

daughter, K.M.L., that Larks sexually assaulted her multiple times,

from March 2018 until December 2018 when K.M.L. was removed

from the family home. K.M.L. was fourteen and fifteen years old at

the time.

¶3 K.M.L. first disclosed the sexual assaults to her sister, K.A.L.,

in October 2019. Shortly thereafter, forensic interviewer Chris

Eisenhauer interviewed K.M.L., and K.M.L. detailed the verbal,

physical, and sexual abuse she experienced from Larks. The jury

heard recordings of this interview at trial and testimony from

K.M.L., K.A.L., Eisenhauer, and L.Z.L., Larks’ wife and K.M.L.’s

mother.

¶4 Following a fourteen-day trial, the jury convicted Larks of

aggravated incest, sexual assault aided by a deadly weapon, sexual

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assault on a child by one in a position of trust as part of a pattern

of abuse, and child abuse. The jury hung on three other counts,

which were dismissed. Larks was sentenced to 122 years to life in

the Department of Corrections’ custody.

¶5 Larks raises five issues on appeal. We address and reject each

in turn.

II. Statement Regarding the 2016 Report

¶6 Larks first contends that the trial court erred by precluding

evidence that K.M.L., after reporting in 2016 that she was sexually

assaulted by a peer, told K.A.L., “I have no idea what it’s like to be

sexually assaulted.” The parties disagree over whether this issue is

preserved. However, because we conclude that Larks waived this

contention of error and thus decline to review the court’s

determination, we need not reach the preservation issue. See

People v. Rediger, 2018 CO 32, ¶ 40 (waiver extinguishes error and

therefore appellate review).

A. Additional Background

¶7 In 2016, K.M.L. reported that a peer sexually assaulted her.

K.M.L. was later diagnosed with post-traumatic stress disorder

(PTSD) in 2018. Premised on this diagnosis, the prosecution

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charged Larks with child abuse resulting in serious bodily injury

(SBI) under section 18-6-401(1)(a), C.R.S. 2025. The trial court

dismissed this count and the prosecution appealed. In an

unpublished opinion, a division of this court concluded that

K.M.L.’s PTSD diagnosis established probable cause that Larks

committed the crime of child abuse resulting in SBI and reinstated

the count. People v. Larks, (Colo. App. No. 20CA1060, Nov. 12,

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

¶8 Larks then filed a pretrial motion asking to introduce evidence

— under the Colorado Rape Shield Statute, section 18-3-407(1)(b),

C.R.S. 20221 — that “the victim was diagnosed with PTSD as a

result of a [2016] sex assault [by a peer] that predates the date of

offense in this case.” The trial court granted this motion. The court

cautioned, however, that Larks could not use evidence of the alleged

2016 assault to also show a history of false reporting as that would

implicate section 18-3-407(2), which requires a separate motion

1 The current version of the statute differs from the 2022 version in

that only one instance of false reporting is required instead of a
history of false reporting. § 18-3-407, C.R.S. 2025. We cite the
2022 version throughout this opinion because the court decided
Larks’ motion under that version.

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and different proof. Defense counsel conceded that he could not

“make a good faith claim that there’s a history of false reporting.”

¶9 In his opening statement, defense counsel said that K.M.L.

was treated for “PTSD that she had been diagnosed with . . . based

upon a sexual assault that occurred in 2016.” The following day,

defense counsel informed the court that he planned to elicit

testimony from K.A.L. that K.M.L. told her, after making the 2016

report, “I don’t know what it’s like to be sexually assaulted.” This,

defense counsel opined, amounted to K.M.L. “admitt[ing] that she

was not, in fact, sexually assaulted by this young man,” and it was

therefore probative of K.M.L.’s character for untruthfulness. The

court ruled that the statement was inadmissible and reiterated that

if defense counsel wanted to use the 2016 report to show a history

of false reporting, defense counsel had to follow the procedure in

section 18-3-407(2), which he had not done.

¶ 10 Three days later, during direct examination, the prosecution

asked K.M.L. about the 2016 report. Defense counsel objected on

relevance grounds. The court overruled the objection, concluding

that the question was relevant to establishing a timeline after

K.M.L. mentioned the peer in a forensic interview video viewed by

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the jury. Larks argues, for the first time on appeal, that this

“opened the door” to inquiry about K.M.L.’s statement to K.A.L. As

discussed below, we do not assess this contention’s merits because

we conclude that Larks waived his right to introduce the statement.

B. Applicable Law and Analysis

¶ 11 “[A]n appellate court has an independent, affirmative duty to

determine whether a claim is preserved and what standard of

review should apply, regardless of the positions taken by the

parties.” Forgette v. People, 2023 CO 4, ¶ 15 (quoting People v.

Tallent, 2021 CO 68, ¶ 11). We review de novo whether a claim is

waived. Id.

¶ 12 Waiver is the intentional relinquishment of a known right. Id.

at ¶ 28. “A waiver may be explicit, as, for example, when a party

expressly abandons an existing right or privilege, or it may be

implied, as when a party engages in conduct that manifests an

intent to relinquish a right or privilege or acts inconsistently with its

assertion.” Id. An appellate court “indulge[s] every reasonable

presumption against waiver.” Rediger, ¶ 39 (quoting People v.

Curtis, 681 P.2d 504, 514 (Colo. 1984)). Forfeiture, on the other

hand, is the failure to make the timely assertion of a right. Id. at

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¶ 40. This distinction is significant because waiver extinguishes

appellate review, but forfeiture does not. Id.

¶ 13 Larks’ counsel mentioned the 2016 report during opening

statements and moved to introduce it as an alternate cause of

PTSD. This was likely a strategic attempt to undermine the

prosecution’s theory that Larks caused K.M.L.’s PTSD. See People

v. Daley, 2021 COA 85, ¶ 117 (the defendant made a strategic

choice by choosing to reference evidence in her opening statement

that the prosecution later discussed during direct examination).

Larks cannot now argue on appeal that the court deprived him of

the right to introduce K.M.L.’s statement to cast doubt on the

report’s truthfulness. He moved to admit the report for its truth; he

cannot simultaneously introduce evidence purporting to show that

it was false. See People v. Babcock, 2023 COA 49, ¶ 28 (concluding

that the defendant waived an argument when he took contradictory

stances on the same issue), aff’d, 2025 CO 26. Larks’ conflicting

position amounts to waiver, precluding our review. See Forgette,

¶ 28.

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III. Eisenhauer’s Testimony

¶ 14 Larks next argues that the trial court erred by allowing

Eisenhauer, a prosecution-endorsed expert in forensic interviewing,

to imply that K.M.L. “was telling the truth.” Larks points to two

instances of purported improper bolstering: (1) when the

prosecution asked, and Eisenhauer answered, if there is a

difference between a child responding to the question, “Were you

sexually assaulted?” and a child disclosing the assault through

“free recall” (recall testimony); and (2) when the prosecution asked,

and Eisenhauer answered, why she always elicits a promise from

children “to tell the truth” during forensic interviews (rapport

building testimony). We address these contentions separately

because the two instances present distinct preservation issues, but

we disagree with Larks on both accounts.

A. Recall Testimony

1. Additional Background

¶ 15 On cross-examination, defense counsel asked Eisenhauer

about a child’s suggestibility. Specifically, counsel asked if there is

a difference between a child saying, “in free recall, ‘I was sexually

assaulted,’ versus . . . an adult or authority figure ask[ing] the

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child, ‘were you sexually assaulted,’ and then the child answers in

the affirmative?” Eisenhauer answered that there “certainly could

be,” depending on “the relationship they have with the person that’s

asking them and their tone of voice.”

¶ 16 On redirect examination, the prosecution reminded

Eisenhauer of defense counsel’s question about the difference

between free recall and someone asking the child a question. The

prosecution then asked, “If you’re asked a question of, ‘were you

sexually assaulted,’ does that mean that the answer is less true

than if you were saying, free recall, ‘I was sexually assaulted?’”

Defense counsel objected to the question’s language, and the court

overruled the objection. The prosecution proceeded to ask if both a

free recall statement and an answer to a question could be equally

true or equally false, to which Eisenhauer responded affirmatively.

¶ 17 Larks argues on appeal that this amounts to inadmissible

bolstering because K.M.L.’s credibility was the “focal issue in the

case.” In answering the prosecution’s question, Larks contends

that Eisenhauer implied K.M.L. was being truthful. We do not

address the merits of this contention because we determine that

Larks invited the error.

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2. Applicable Law and Analysis

¶ 18 “The doctrine of invited error prevents a party from

complaining on appeal of an error that he or she has invited or

injected into the case; the party must abide the consequences of his

or her acts.” Rediger, ¶ 34. Because Larks invited this testimony

by first raising the issue on cross-examination, we decline to

address his argument that the trial court erred by allowing the

prosecution to ask a follow-up question about that testimony. See

People v. Munoz, 240 P.3d 311, 320 (Colo. App. 2009) (concluding

that the defendant invited follow-up testimony on redirect by asking

questions about the same subject matter on cross-examination).

Larks “cannot complain of any error that resulted from testimony

he himself elicited.” Id.

B. Rapport Building Testimony

1. Additional Background

¶ 19 Eisenhauer was qualified as an expert in forensic interviewing

and conducted three forensic interviews with K.M.L. On direct

examination, Eisenhauer described the process she follows in each

interview, beginning with a “rapport building” phase in which she

gets to know the child, helps her feel comfortable, and assesses her

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developmental level. During this phase, Eisenhauer “elicit[s] a

promise of the truth.” The prosecution asked why she does that,

and Eisenhauer responded, “I do that because research shows if

they promise to tell the truth, that they’re more likely than not to

tell the truth.”

¶ 20 On appeal, Larks argues this testimony implied that K.M.L.

was telling the truth in the forensic interview where she disclosed

Larks’ abuse and thus impermissibly bolstered her credibility. To

support this, Larks highlights that Eisenhauer testified as an expert

in forensic interviewing and as K.M.L.’s interviewer. The jury heard

Eisenhauer elicit from K.M.L. a promise to tell the truth in the

interviews; thus, says Larks, Eisenhauer’s testimony that children

are “more likely than not to tell the truth” suggested that K.M.L.

was being honest.

¶ 21 While we agree that Eisenhauer’s dual role as a lay and expert

witness posed a unique risk of bolstering K.M.L.’s credibility, we

cannot conclude that the trial court plainly erred.

2. Applicable Law and Analysis

¶ 22 The parties agree that the issue is unpreserved. We review

unpreserved issues for plain error. People v. Conyac, 2014 COA

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8M, ¶ 53. Under this standard, the defendant bears the burden of

establishing that at the time the error arose, “it was so clear cut

and so obvious that a trial judge should have been able to avoid it

without the benefit of objection.” Id. at ¶ 54. The defendant must

also establish that the error “undermined the fundamental fairness

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

conviction.” Id.

¶ 23 Larks relies on Venalonzo v. People, 2017 CO 9, ¶ 32, factually

and for the proposition that “witnesses are prohibited from

testifying that another witness is telling the truth on a particular

occasion.” In Venalonzo, an expert in forensic interviewing also

directly interviewed the child victims of sexual assault. Id. at ¶ 35.

The expert testified that the children’s behaviors during the

interview “were common to [those of] other child sex assault victims

she had interviewed.” Id. The Colorado Supreme Court held that

the prosecution could introduce videotaped forensic interviews

without this testimony and concluded that comparing the victims to

other children who experienced sexual assault improperly bolstered

the victims’ credibility. Id. at ¶ 36.

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¶ 24 We agree that Larks’ case parallels Venalonzo, as Eisenhauer

also served as a lay and expert witness. The jury viewed recordings

of K.M.L.’s interviews, in which Eisenhauer elicited a promise from

K.M.L. to be truthful. Eisenhauer’s statement that she elicits this

“because research shows if they promise to tell the truth that

they’re more likely than not to tell the truth” did little to provide

context to the interview and instead implied that K.M.L. was indeed

truthful. See also People v. Snook, 745 P.2d 647, 648-49 (Colo.

1987) (testimony that children tend not to fabricate stories of sexual

abuse and that they often reproduce their own experience when

reporting it amounted to support for the victim’s truthful character).

Thus, we agree with Larks that the error was obvious in light of

Venalonzo and Snook.

¶ 25 However, the error did not undermine the trial’s fundamental

fairness. See id. Larks effectively cross-examined Eisenhauer on

this testimony, both parties asked other lay witnesses about

K.M.L.’s character for truthfulness, and other family members’

testimony corroborated the alleged instances of abuse.

Significantly, the jury returned a hung verdict on three counts of

sexual assault. The split verdict suggests jurors thoughtfully

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“parsed the evidence” and were not unduly influenced by

Eisenhauer’s improper testimony. People v. Quillen, 2023 COA

22M, ¶ 39; see also People v. Larsen, 2017 CO 29, ¶ 16 (concluding

that a split verdict indicates that improper evidence did not

influence the jury).

IV. Involuntary Psychological Evaluation

¶ 26 Larks next contends that the trial court erred in denying his

request for an involuntary psychological evaluation of K.M.L. We

disagree.

A. Additional Background

¶ 27 K.M.L. was diagnosed with PTSD in 2018 after disclosing the

alleged 2016 sexual assault by a peer, and K.M.L.’s therapist again

diagnosed her with PTSD after she disclosed the 2018 sexual

assault by Larks. Before trial, K.M.L. waived her privileges to all

mental health records, making therapy and hospitalization

documents, including her PTSD diagnoses, available to defense

counsel. A defense-endorsed expert, Alison Osborn, reviewed these

records and stated that forming an independent opinion on whether

K.M.L. suffers from PTSD required her to conduct her own two-to-

four-hour clinical evaluation. According to Osborn, relying on

13
third-party sources “would limit the reliability and validity” of her

opinion. Larks subsequently moved for an order allowing Osborn to

conduct a psychological evaluation of K.M.L.

¶ 28 The prosecution countered that the defense had access to

K.M.L.’s mental health records, K.M.L. experienced extreme anxiety,

and, according to K.M.L.’s therapist, it would likely be “very

traumatic for her” to rehash the details of the alleged abuse if a

clinician — chosen by Larks — forced her to do so. At a pretrial

hearing, K.M.L. “beg[ged]” the court to deny the motion,” stating it

took her years to open up to her own therapist about the abuse she

endured and equating the involuntary evaluation to “rip[ping] [her]

soul open to a stranger.”

¶ 29 Pursuant to People v. Chard, 808 P.2d 351, 355 (Colo. 1991),

the trial court balanced the parties’ positions and considered

whether Larks had a “compelling need” for the evaluation that

outweighed the risk of re-traumatizing K.M.L. Because medical

records supporting the PTSD diagnosis were available to Larks, the

court concluded that Larks had not shown a compelling need for an

involuntary evaluation that outweighed the potential risk to

K.M.L.’s well-being.

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B. Applicable Law and Analysis

¶ 30 We review the trial court’s denial of a motion for an

involuntary psychological examination for an abuse of discretion.

People v. Melendez, 80 P.3d 883, 888 (Colo. App. 2003), aff’d, 102

P.3d 315 (Colo. 2004). A court abuses its discretion where its

decision is manifestly arbitrary, unreasonable, or unfair, or based

on a misapprehension or misapplication of the law. People v.

Ehrnstein, 2018 CO 40, ¶ 13.

¶ 31 The Colorado Supreme Court stated in Chard, “In deciding

whether to grant a defendant’s motion for the involuntary

psychological examination of a child sexual-abuse victim, the court

must weigh the defendant’s right to a fair trial against the invasion

of the victim’s privacy.” 808 P.2d at 353. Chard presented affidavit

evidence and testimony to support his position that an evaluation

was necessary, but the court found that this was undermined by

his own testimony. Id. at 354. On this basis, the supreme court

concluded that Chard had not shown a compelling need for the test

as it was unlikely to yield material evidence that outweighed

possible trauma to the victim. Id.

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¶ 32 The record before us shows that the trial court considered

both parties’ positions and balanced them accordingly. The trial

court noted it was an “extremely close question,” but “there is

clearly a prior diagnosis of PTSD,” and in light of this, Larks did not

meet his burden of showing beyond a reasonable doubt that an

independent evaluation was necessary. The court acknowledged

Osborn’s reluctance to make a PTSD determination without

personally evaluating K.M.L., but it stated, “the Court absolutely

finds the emotional trauma is unmeasurable to this victim and,

quite frankly, the Court has doubts [as] to whether any examination

[will] produce material which would ultimately be helpful to the

defendant.” Accordingly, the trial court denied the motion.

¶ 33 Even if we were to balance these interests ourselves and come

to a different conclusion, we cannot say the trial court abused its

broad discretion in making its determination; the determination

was not arbitrary, unreasonable, or unfair. Chard, 808 P.2d at 354;

see also People v. Kriho, 996 P.2d 158, 177 (Colo. App. 1999)

(concluding that while “reasonable minds” could come to a different

conclusion than the trial court did, its decision did not rise to an

abuse of discretion); People v. Medina, 51 P.3d 1006, 1018 (Colo.

16
App. 2001) (conceding that although a piece of evidence had

marginal relevance, the reviewing court cannot say that the trial

court abused its discretion in admitting it). We therefore conclude

that the trial court did not err by denying Larks’ motion for an

involuntary psychological evaluation of K.M.L.

V. The Bicycle Incident

¶ 34 Fourth, Larks argues the trial court erred in admitting, as

evidence of child abuse, that Larks kicked L.Z.L. down the stairs

and rode over her fingers with a bicycle in K.M.L.’s presence (the

bicycle incident). Larks claims that this was improper “other act”

evidence under CRE 404(b) or, alternatively, unfairly prejudicial

under CRE 403. We are not persuaded.

A. Additional Background

¶ 35 K.M.L. testified that Larks deprived her of sleep and made her

stand against a wall as punishment. Larks objected to this

testimony on CRE 403 and 404(b) grounds. The court overruled

this objection and found that all abusive acts K.M.L. experienced or

observed during the relevant timeframe were admissible.

¶ 36 The jury heard about the bicycle incident twice: first from

K.M.L. during a redacted forensic interview recording and again

17
when L.Z.L. testified on direct examination. Larks did not object to

the recording but objected when L.Z.L. testified about the bicycle

incident and Larks’ “nonverbal cues when he’s angry.” The court

sustained this objection on relevance grounds but allowed the

prosecution to continue questioning L.Z.L. about the abuse K.M.L.

witnessed.

¶ 37 Larks now argues on appeal that the bicycle incident

constitutes “other act” evidence under CRE 404(b) and that the trial

court was required to conduct an analysis under People v. Spoto,

795 P.2d 1314 (Colo. 1990). Larks also posits that the testimony

was unfairly prejudicial under CRE 403. He maintains that the

issue is preserved because he objected on these grounds to K.M.L.’s

testimony about sleep deprivation and other forms of punishment

and, in overruling that objection, the court remarked that abusive

acts K.M.L. observed were admissible. The prosecution counters

that the defense objected to different testimony describing different

acts of abuse and notes that the court sustained the

contemporaneous relevance objection Larks made when L.Z.L.

testified about the bicycle incident. We conclude that the issue is

unpreserved because Larks did not object to L.Z.L.’s testimony on

18
the same grounds raised in this appeal. See People v. Ujaama,

2012 COA 36, ¶¶ 37-38 (to preserve an issue, a party must object

at trial on the same grounds asserted on appeal, and with enough

specificity to alert the trial court to the issue of which the defendant

now seeks review).

B. Applicable Law and Analysis

¶ 38 We review unpreserved issues for plain error. Conyac, ¶ 53.

Under this standard, the defendant bears the burden of

establishing that at the time the error arose, “it was so clear cut

and so obvious that a trial judge should have been able to avoid it

without benefit of objection.” Id. at ¶ 54. For an error to be

obvious, “the action challenged on appeal ordinarily ‘must

contravene (1) a clear statutory command; (2) a well-settled legal

principle; or (3) Colorado case law.’” Scott v. People, 2017 CO 16,

¶ 16 (quoting People v. Pollard, 2013 COA 31M, ¶ 40). The

defendant must also establish that the error “undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the conviction.” Conyac, ¶ 54.

¶ 39 The jury first heard about the bicycle incident from K.M.L. in a

redacted forensic interview. The parties agreed not to redact the

19
bicycle incident from this interview, and Larks did not object when

the recording was played. Thus, any conceivable error by the trial

court in allowing L.Z.L. to testify about that same incident was not

obvious; L.Z.L. was merely discussing evidence made previously

available to the jury. People v. Crabtree, 2024 CO 40M, ¶ 53

(stating that we must determine whether the error was obvious

when committed, not whether it is obvious on appeal); see also

People v. Douglas, 2015 COA 155, ¶ 41 (concluding that the trial

court did not commit plain error in admitting testimony that was

cumulative of other properly admitted testimony). Additionally,

given the substantial amount of evidence supporting the allegations

against Larks, we cannot say this testimony undermined the trial’s

fundamental fairness or calls into doubt the reliability of Larks’

convictions. Cardman v. People, 2019 CO 73, ¶ 39 (stating that the

question at this step of the plain error analysis is whether a

reasonable possibility exists that the error contributed to the

conviction).

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VI. Cumulative Error

¶ 40 Finally, Larks contends that even if none of the stated errors

individually warrant reversal, the trial court’s alleged errors

cumulatively prejudiced him and warrant reversal.

¶ 41 We review claims of cumulative error de novo. Howard-Walker

v. People, 2019 CO 69, ¶ 22. Cumulative error may occur when

“[n]umerous formal irregularities, each of which in itself might be

deemed harmless, may in the aggregate show the absence of a fair

trial, in which event a reversal would be required.” Id. at ¶ 24

(citation omitted). Cumulative error may result in reversal 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.” Id. (alteration in original) (citation omitted).

¶ 42 However, cumulative error “requires that numerous errors be

committed, not merely alleged.” Conyac, ¶ 152. Because we

conclude that the trial court did not err with respect to any of the

contentions we have reviewed, cumulative error did not occur. See

People v. Valdez, 2017 COA 41, ¶ 51.

VII. Disposition

¶ 43 For the reasons stated, the judgment is affirmed.

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JUDGE MEIRINK and JUDGE HAWTHORNE concur.

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