Peo v. Thompson

22CA1590 Peo v Thompson 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1590
Weld County District Court No. 18CR1753
Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Edward Thompson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE SCHOCK
Harris and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 26, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph P. Hough, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Brian Edward Thompson, appeals his conviction

for sexual assault on a child by one in a position of trust. He

argues that the evidence was insufficient to support his conviction

and that the district court erred by allowing improper impeachment

of his expert witness and by excluding evidence of his exculpatory

statements to police under the rule of completeness. We affirm.

I. Background

¶2 D.R., then sixteen years old, went to Thompson’s apartment

one evening for a sleepover with his daughter. Initially, the two

girls watched a movie with Thompson in the living room. When

Thompson went to bed a few hours later, the girls stayed up. At

some point, Thompson’s daughter went to bed in Thompson’s bed

(where she normally slept),1 and D.R. fell asleep on the couch.

¶3 Early the next morning, D.R. woke up and got into bed with

Thompson and his daughter — lying between the two of them with

a blanket between herself and Thompson — where she fell asleep.

According to D.R., she later woke up and felt Thompson’s fingers

1 The apartment had two bedrooms. Thompson shared a room with
his daughter, while his two sons shared the other room.

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inside her vagina.2 Thompson removed his hand and it sounded

like he put it in his mouth. He then put his hand in D.R.’s pants

again, but D.R. moved away, and Thompson moved his hand.

¶4 At that point, D.R. opened her eyes and realized she was

closer to Thompson than when she fell asleep and the two were now

under the blanket she had originally placed between them. When

D.R. opened her eyes, Thompson rolled away from her and acted as

if he was sleeping. D.R. got out of the bed and left the apartment.

¶5 As she was leaving, Thompson messaged her on Facebook,

asking what happened and if she was okay. D.R. told Thompson to

leave her alone and that she was going to tell her grandma and her

mom what happened. Thompson responded that he was asleep and

“when [he] woke up [she] was gone.” He said that they “all” loved

her and that he was “truly sorry for whatever [he] did,” adding, “If I

hurt you in any way th[e]n I deserve whatever happens to me.”

¶6 D.R. reported the assault to police and Thompson was charged

with sexual assault of a physically helpless victim and sexual

assault on a child by one in a position of trust. Thompson’s defense

2 This account of the charged assault is based on D.R.’s forensic

interview, which was admitted as an exhibit at trial.

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at trial was that the incident had not happened and that D.R. had

dreamed or imagined it due, in part, to her use of drugs and

alcohol. A jury convicted Thompson of sexual assault on a child by

one in a position of trust and acquitted him of the other charge.

II. Sufficiency of the Evidence

¶7 We first address Thompson’s argument that the evidence was

insufficient to support his conviction. He contends that the

prosecution failed to present sufficient evidence that he was in a

“position of trust” with respect to D.R. We disagree.

A. Standard of Review and Applicable Law

¶8 In reviewing the sufficiency of the evidence, we review the

record de novo to determine whether the evidence was sufficient

both in quantity and quality to sustain the conviction. Johnson v.

People, 2023 CO 7, ¶ 13. We do not “serve as a thirteenth juror and

consider whether [we] might have reached a different conclusion.”

People v. Harrison, 2020 CO 57, ¶ 33. Instead, we view the evidence

as a whole and in the light most favorable to the prosecution to

determine if it is “substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt.” Johnson, ¶ 13 (citation omitted).

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¶9 A person commits sexual assault on a child by one in a

position of trust when that person “knowingly subjects another not

his or her spouse to any sexual contact . . . if the victim is a child

less than eighteen years of age and the actor committing the offense

is one in a position of trust with respect to the victim.” § 18-3-

405.3(1), C.R.S. 2025. One in a “position of trust”

includes, but is not limited to, any person who
is a parent or acting in the place of a parent
and charged with any of a parent’s rights,
duties, or responsibilities concerning a child,
including a guardian or someone otherwise
responsible for the general supervision of a
child’s welfare, or a person who is charged with
any duty or responsibility for the health,
education, welfare, or supervision of a child,
including foster care, child care, family care, or
institutional care, either independently or
through another, no matter how brief, at the
time of an unlawful act.

§ 18-3-401(3.5), C.R.S. 2025 (emphasis added).

¶ 10 This definition is “broad” and the listed categories of

relationships are “illustrative” and nonexclusive. Pellman v. People,

252 P.3d 1122, 1125 (Colo. 2011). The statute is intended to

encompass “those offenders who are entrusted with special access

to a child victim and who exploit that access to commit an offense

against the child.” People v. Roggow, 2013 CO 70, ¶ 15. The

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person need not be “expressly charged with a particular duty or

responsibility.” Id. Rather, such a responsibility can be implied

from the circumstances. Manjarrez v. People, 2020 CO 53, ¶ 26.

B. Analysis

¶ 11 Viewed in the light most favorable to the prosecution, the

evidence was sufficient to support a jury finding that while D.R. was

spending the night in Thompson’s home, Thompson had a duty or

responsibility for her supervision. See Pellman, 252 P.3d at 1126.

¶ 12 Thompson was the only parent in the home and the only adult

over the age of twenty.3 He knew D.R. was staying overnight, even

spending part of the evening with the girls watching a movie before

going to bed. A jury could reasonably infer that by allowing another

child to spend the night in his home, Thompson assumed a

responsibility for her care and supervision while she was there. See

People v. Madril, 746 P.2d 1329, 1336 (Colo. 1987) (holding that

“position of trust” includes a person “who permits a young child to

come into his home to spend the night with his own children”).

3 Thompson’s twenty-year-old son was also in the home.

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¶ 13 Moreover, there was also evidence that Thompson had a

relationship with D.R.’s mother and that D.R.’s mother trusted him

with D.R. D.R.’s mother testified that she had known Thompson for

more than twenty years and considered him to be one of her closest

friends, like a “brother” to her. She relied on Thompson to take

D.R. to school and knew that D.R. occasionally spent the night with

Thompson’s daughter at Thompson’s home. She also testified that

Thompson was “like a[n] uncle” to D.R. and was “somebody she

trusted.” Although D.R.’s mother was not D.R.’s legal guardian at

the time, she “worked it out with” D.R.’s grandmother (who was

D.R.’s legal guardian) that “she could trust [Thompson] with [D.R.].”

¶ 14 A jury could reasonably infer from these circumstances that

Thompson had “special access” to D.R. — and thus an implied duty

of responsibility for her supervision during those periods of special

access — by virtue of his relationship with D.R.’s family. See

Manjarrez, ¶ 34 (holding that the defendant “was entrusted with

special access to the victim” where he “frequently socialized” with

her family and they “trusted him to be alone with their daughter”);

Roggow, ¶¶ 31-32 (holding that evidence was sufficient to establish

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a position of trust where the victim’s father “trusted [the defendant]

with his children” and the children considered him a family friend).

¶ 15 Thompson contends that he was not in a position of trust with

D.R. because, at sixteen, she was “capable of doing [some] things

. . . for herself” and his interaction with her that night was limited.

But while an older teenager may require less supervision than a

younger child, D.R. was still a minor staying overnight in

Thompson’s home. A jury could reasonably infer that, as a result,

Thompson was charged with some supervisory responsibility over

her — even if he was not “performing a specific supervisory task at

the time.” Pellman, 252 P.3d at 1126. And regardless of the degree

of supervision Thompson exercised, D.R.’s age had no bearing on

whether the circumstances gave Thompson special access to her.

See id. (holding that defendant was in a position of trust where

victim was fifteen and met him without her parents’ knowledge).

¶ 16 We therefore conclude that the evidence was sufficient to show

that Thompson occupied a position of trust with respect to D.R.

while she was an overnight guest of his daughter in his home.

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III. Expert Cross-Examination

¶ 17 Thompson next argues that the district court reversibly erred

by allowing the prosecution to cross-examine the defense expert

with a judicial order and a Texas state commission report rejecting

the expert’s opinions in another case. He contends that the order

and report were hearsay, inadmissible evidence of specific instances

of conduct, irrelevant, and unduly prejudicial. We are not

persuaded. Even assuming the court erred by allowing this cross-

examination, we conclude that any error was harmless or not plain.

A. Additional Background

¶ 18 The prosecution’s DNA expert testified that Thompson’s DNA

was found on D.R.’s underwear but not on her vaginal or external

genitalia swabs. The defense’s DNA expert, Dr. Phillip Danielson,

generally agreed, testifying that (1) Thompson could not be excluded

as the contributor of the male DNA on the underwear and (2) the

vaginal and external genitalia swabs were “not interpretable.” But

he opined that the vaginal and external genitalia swabs did “not

support the proposition of digital penetration” by Thompson.

¶ 19 On cross-examination, the prosecutor asked Dr. Danielson if

his testimony had been “formally discredited by a federal judge in

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Washington, D.C. previously.” In response, Dr. Daniel explained

that he had previously provided expert testimony in a case in

Washington, D.C., that a private laboratory had “employed rigorous

scientific methods” and that the judge in that case said he “would

not credit [that] testimony.” Dr. Danielson also noted that an audit

of the laboratory had later confirmed Dr. Danielson’s conclusions.

Over a hearsay objection, the prosecutor then quoted the prior

court’s ruling that “[t]he [c]ourt discredits Dr. Danielson’s

assertion.” Dr. Danielson reiterated that the ruling addressed only

the scientific validity of the methods used by the particular lab.

¶ 20 The prosecutor then asked Dr. Danielson about a report by

the Texas Forensic Science Commission regarding his testimony in

that case. Defense counsel objected on the ground that the report

itself said it should not be used as evidence, and the district court

overruled the objection. The prosecutor then quoted a passage from

that report, which concluded, “Dr. Danielson also testified that he

was able to distinguish between major and minor split peaks in the

data. . . . The subject matter experts on the review team have also

never heard of these concepts and do not agree with Dr. Danielson’s

views.” Dr. Danielson acknowledged that is what the report said.

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¶ 21 On re-direct, Dr. Danielson testified that (1) the judicial order

was nearly ten years old; (2) his opinions in that case had since

been confirmed in peer-reviewed publications; (3) most labs in the

United States had since adjusted their standards in accordance

with his testimony; and (4) the issues that were addressed in the

prior case were unrelated to the opinions he offered in this case.

B. Standard of Review and Preservation

¶ 22 We review a district court’s evidentiary rulings for an abuse of

discretion. People v. McLaughlin, 2023 CO 38, ¶ 22. A district

court abuses its discretion when it misapplies the law or when its

ruling is manifestly arbitrary, unreasonable, or unfair. Id.

¶ 23 Thompson objected to the questions at issue on only two

grounds: (1) the order was hearsay, and (2) the report said it should

not be used as evidence (an argument Thompson does not raise on

appeal). He did not raise any other objection, including that the

order and report were inadmissible specific-instance evidence under

CRE 608(b), irrelevant, or unfairly prejudicial under CRE 403. See

Martinez v. People, 2015 CO 16, ¶ 14 (noting that objections must

be “specific enough to draw the trial court’s attention to the

asserted error”). Thus, we review these other arguments for plain

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error, meaning we will reverse only if the error is “obvious” and “so

undermined the fundamental fairness of the trial itself as to cast

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

People v. Crabtree, 2024 CO 40M, ¶¶ 42-43 (citation omitted).

C. Analysis

¶ 24 We first conclude that the district court did not abuse its

discretion by overruling Thompson’s hearsay objection to the prior

judicial order. Although the prosecution did not specify the

purpose of the questions, it appears they were designed not to prove

the truth of the matter asserted — that Dr. Danielson’s opinions in

the prior case were wrong or unsupported — but to challenge his

credibility by showing that a judge had so found. See People v. Van

Meter, 2018 COA 13, ¶ 64 (“If an out-of-court statement is not

offered for its truth, it is admissible as nonhearsay evidence as long

as it is relevant.”). To the extent certain questions went beyond this

purpose, any error would be harmless for the reasons below.

¶ 25 Nor were the questions impermissible under CRE 608(b). That

rule prohibits the introduction of extrinsic evidence to prove specific

instances of a witness’s conduct for the purpose of attacking the

witness’s character for truthfulness. CRE 608(b). But even

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assuming the order and report could be considered specific

instances of Dr. Danielson’s conduct and even assuming they were

offered to attack Dr. Danielson’s truthfulness — as opposed to his

competency — they were not proved by extrinsic evidence. The

order and report were not themselves admitted into evidence.

Instead, the prosecution “inquired into [them] on cross-

examination” (albeit, by reading excerpts), as CRE 608(b) expressly

allows. See People v. Caldwell, 43 P.3d 663, 670 (Colo. App. 2001).

¶ 26 We tend to agree with Thompson, however, that the relevance

of the judicial order and commission report was a stretch. It is true

that a witness’s credibility — particularly an expert witness’s

credibility — is always relevant. See Margerum v. People, 2019 CO

100, ¶ 12; see also Ross v. Colo. Nat’l Bank of Denv., 463 P.2d 882,

887 (Colo. 1969) (“[O]nce a witness testifies as an expert, he

subjects himself to the most rigid kind of cross-examination . . . .”).

And other courts have allowed the use of prior judicial credibility

determinations for cross-examination. See, e.g., United States v.

Woodard, 699 F.3d 1188, 1195-96 (10th Cir. 2012) (citing cases);

United States v. Cedeno, 644 F.3d 79, 82-83 (2d Cir. 2011); cf. Hock

v. N.Y. Life Ins. Co., 876 P.2d 1242, 1257 (Colo. 1994) (holding that

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district court correctly permitted cross-examination of expert

regarding civil suit challenging reliability of procedures at issue).

¶ 27 But according to Dr. Danielson, his only opinion that was

“discredited” in the prior case was that a particular lab (not the lab

in this case) had employed rigorous scientific methods (not the

methods at issue in this case). That issue had nothing to do with

his opinions in this case. Moreover, Dr. Danielson explained that

the prior testimony was in 2013 and 2014, and that the scientific

consensus had developed substantially since then. That Dr.

Danielson was “discredited” nearly a decade ago somewhere by

someone about something had little to do with his credibility in this

case. See Locke v. Vanderark, 843 P.2d 27, 31 (Colo. App. 1992)

(holding that district court erred by permitting cross-examination of

expert about medical malpractice suits involving different medical

procedures); Woodard, 699 F.3d at 1195 (listing factors relevant to

admissibility of prior credibility determinations, including similarity

of subject matter, how much time has elapsed, and whether the

finding was limited to the witness’s veracity in that specific case).

¶ 28 Nevertheless, even assuming the district court obviously erred

by allowing this line of cross-examination, any error did not

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substantially undermine the fairness of trial or cast serious doubt

on the reliability of Thompson’s conviction — and any preserved

error would be harmless for the same reasons. First, given the lack

of any apparent connection between Dr. Danielson’s opinion in the

prior case and his opinions in this case, we see little likelihood that

the jury discounted his testimony because of the unrelated judicial

order and commission report. In other words, for the same reasons

the order and report were of minimal relevance, they likely had little

bearing on the jury’s assessment of Dr. Danielson’s testimony.

¶ 29 Second, Dr. Danielson did not testify that Thompson did not

digitally penetrate D.R. He opined only that the evidence —

specifically, the absence of Thompson’s DNA on the vaginal and

external genitalia swabs — did not support the proposition that he

did. But the prosecution’s expert effectively acknowledged the same

thing, recognizing that she could not draw any conclusions from the

vaginal and external genitalia swabs. The prosecution’s expert also

testified about indirect DNA transfer and conceded that she could

not determine how Thompson’s DNA ended up on D.R.’s underwear.

Thus, even if the jury discounted Dr. Danielson’s testimony to some

degree, the two most critical aspects of that testimony were

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corroborated by the prosecution’s own expert. Cf. People v.

Pratarelli, 2020 COA 33, ¶ 49 (holding that exclusion of testimony

was not plain error where it was cumulative of other evidence).

¶ 30 Third, and most significantly, the crime for which Thompson

was convicted did not require penetration. Unlike sexual assault on

a helpless victim, which requires “sexual intrusion or sexual

penetration,” § 18-3-402(1), C.R.S. 2025, sexual assault on a child

by one in a position of trust requires only “sexual contact,” § 18-3-

405.3(1). “Sexual contact” includes, among other things, “the

knowing touching of the clothing covering the immediate area of the

victim’s . . . intimate parts.” § 18-3-401(4)(a) (emphasis added). Dr.

Danielson’s testimony that there was no evidence of penetration was

therefore immaterial to the jury’s finding that there was sexual

contact, particularly in light of Dr. Danielson’s agreement that

Thompson was a match for the DNA on D.R.’s underwear.4

4 This does not mean, as the People argue, that the jury necessarily

found there was no penetration. It just means it doesn’t matter for
purposes of the offense for which Thompson was convicted.

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¶ 31 Thus, even if the district court erred by allowing the

prosecution to cross-examine Dr. Danielson about the prior judicial

order and commission report, any error does not require reversal.

IV. Rule of Completeness

¶ 32 Thompson next argues that the district court erred by denying

his request to introduce exculpatory statements he made during a

police interview under the rule of completeness. We disagree.

A. Additional Background

¶ 33 During the direct examination of the lead detective, the

prosecutor asked the detective if she had interviewed Thompson.

When she said she had, the prosecutor asked if she “ask[ed]

anything about whether [Thompson] knew what the allegation was

or anything about that specific night.” The detective responded:

Yes. So when he entered the interview room, I
asked him if he was aware of what the
allegation was and he began talking about the
messages that we have previously discussed in
here, the — Facebook messages, and — talking
about how he ha[d] woken up, realizing [D.R.]
was gone, and he reached out to her.

The detective did not say anything more about the interview, and

the prosecution did not play the video of the interview for the jury.

16
¶ 34 Defense counsel sought to elicit two additional points about

the interview on cross-examination: (1) that Thompson had told the

detective that he thought he was there because D.R. and his

daughter had used drugs and alcohol; and (2) that Thompson never

admitted to sexually assaulting D.R. Defense counsel argued that,

under the rule of completeness, it would be misleading for the jury

to hear that Thompson acknowledged the Facebook messages

without also hearing these other two points. The district court

sustained the prosecution’s objection on the ground that the

additional statements did not relate to the Facebook messages.

¶ 35 Defense counsel renewed her request on the next day of trial.

She argued that the detective’s testimony had implied that

Thompson knew D.R. had accused him of sexual assault and did

not deny it, and that Thompson should be able to introduce his

statements that he thought the interview was about something else.

The prosecutor again objected, arguing that (1) the statements the

defense wanted to introduce were unrelated to the statements about

the Facebook messages, having occurred several minutes later in

the interview; and (2) the detective never testified that Thompson

said he knew the interview had to do with an alleged sexual assault.

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¶ 36 The court stuck with its prior ruling. It concluded that the

additional statements were not necessary to provide context

because the detective had not referred to any statements about

sexual assault allegations. And it explained that, to the extent the

Facebook messages could imply an awareness of such allegations,

the jury had the necessary context from the messages themselves.

B. Applicable Law and Standard of Review

¶ 37 The rule of completeness provides that “[w]hen a writing or

recorded statement or part thereof is introduced by a party, an

adverse party may require him at that time to introduce any other

part or any other writing or recorded statement which ought in

fairness to be considered contemporaneously with it.” CRE 106

(2022)5; see People v. Montoya, 2024 CO 20, ¶ 48. The touchstone

of the rule is fairness. McLaughlin, ¶ 31. Its purpose is to prevent a

party from misleading the jury by selectively introducing portions of

5 CRE 106 was amended after Thompson’s trial to remove the

requirement that the statement be written or recorded. See People
v. Montoya, 2024 CO 20, ¶ 48 n.2. We cite the version of the rule in
effect at the time of Thompson’s trial. See id. In any event, a
division of this court has held that the prior version applied to oral
testimony as well. See People v. Short, 2018 COA 47, ¶ 50.

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a statement while omitting other portions of the statement that are

necessary to clarify or explain the part introduced. Id. at ¶ 24.

¶ 38 The district court exercises broad discretion in determining

whether fairness requires admission of additional statements under

the rule of completeness. Montoya, ¶ 57. We review the exclusion

of such statements for an abuse of discretion, which occurs only

when the district court misapplies the law or when its ruling is

manifestly arbitrary, unreasonable, or unfair. McLaughlin, ¶ 22.

C. Analysis

¶ 39 The detective did not testify to any specific statements that

Thompson made during the interview. Instead, the entirety of her

testimony on this point was that Thompson “began talking about

the [Facebook] messages” and “about how he [woke] up, realiz[ed]

[D.R.] was gone, and . . . reached out to her” — effectively, the same

thing Thompson said in the Facebook messages. Assuming this

limited testimony constitutes the introduction of a part of the

interview, the district court did not abuse its discretion by

concluding that fairness did not require admission of Thompson’s

other statements because those statements were not necessary to

complete or clarify his earlier statements. See Montoya, ¶ 57.

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¶ 40 The general statements the detective described were not

inconsistent with Thompson’s later statements. Cf. id. at ¶ 34

(addressing admission of refusal to take blood test and omission of

request to take test); People v. Short, 2018 COA 47, ¶ 34 (addressing

admission of statement that “someone’s abusing [the victim]” and

omission of statement, “[B]ut it ain’t me”). The detective did not

testify that Thompson said he knew he had been accused of sexual

assault, much less that he admitted to (or failed to deny) a sexual

assault. At most, the statements implied that Thompson knew he

was accused of doing something on the night in question. But

Thompson’s later statement that he thought he was there because

the girls used drugs and alcohol that night did not indicate

otherwise. See Short, ¶ 39 (noting that rule of completeness does

not apply to portions of the statement that are irrelevant to the part

that was introduced). To the extent the Facebook messages implied

Thompson’s awareness of a sexual assault, that implication came

from the messages themselves and not the detective’s testimony.

¶ 41 Moreover, Thompson’s later statements did not provide context

to the introductory statements the detective described. In

McLaughlin and Short, the prosecution selectively redacted portions

20
of the same statement that was introduced. See McLaughlin, ¶¶ 10–

12 (describing redactions of individual sentences, and even parts of

sentences, from otherwise complete back-and-forth exchange);

Short, ¶ 34 & n.1 (noting that omitted statement was made

immediately after admitted statement, but distinguishing statement

made sixteen seconds later in response to different accusation).

And in Montoya, the prosecution played an eight-minute video that

ended with the inculpatory statement while omitting the

defendant’s later statement recanting it. See Montoya, ¶¶ 55-58.

¶ 42 Nothing similar happened here. The statements Thompson

sought to introduce — which came several minutes later in the

interview — had nothing to do with the Facebook messages or what

he had done when he woke up on the morning of the charged

assault. See id. at ¶ 57 (noting that the passage of time between

the statements “should inform the court’s assessment of what is

fair”). And unlike in Montoya, no reasonable juror would have

understood the detective’s general description of Thompson’s

reference to the Facebook messages to be a full account of

everything Thompson had said in the interview. Nor did

Thompson’s subsequent statements contradict or retract the

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admitted ones. See id. at ¶ 56. Indeed, the detective’s testimony

added little, if anything, to the Facebook messages themselves.

¶ 43 Under these circumstances, the district court did not abuse its

discretion by determining that the detective’s brief testimony about

how Thompson began his police interview was not misleading so as

to, in fairness, require the admission of the purportedly exculpatory

statements Thompson made later in the same interview.

V. Disposition

¶ 44 The judgment is affirmed.

JUDGE HARRIS and JUDGE JOHNSON concur.

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