Peo v. Bosher

19CA0145 Peo v Bosher 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0145

El Paso County District Court No. 16CR6176

Honorable Scott Sells, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Douglas Bosher,

Defendant-Appellant.

JUDGMENT AFFIRMED, ORDER VACATED,

AND CASE REMANDED WITH DIRECTIONS

Division IV

Opinion by JUDGE GROVE

Richman and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy

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

1

¶ 1

Defendant, Michael Douglas Bosher, appeals the judgment of

conviction entered on a jury verdict finding him guilty of five counts

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

pattern of abuse, along with one count of sexual exploitation of a

child. He also challenges his adjudication as a habitual criminal

and the trial court’s order designating him a Sexually Violent

Predator (SVP). We affirm the judgment of conviction but vacate

Bosher’s SVP designation and remand the case for additional

findings.

I. Background

¶ 2

The victim, A.S., was “[t]hree, about to turn four” when Bosher

started dating her mother. In 2015, when A.S. was fifteen years

old, her father contacted the Colorado Springs Police Department

because “information had come forward confirming that [A.S.] had

been molested.”

¶ 3

In 2014, a year before A.S.’s allegations came to light, police

were investigating a child exploitation case involving Allen Wencker,

Bosher’s former cellmate. When police searched Wencker’s devices,

they found communications between Wencker and Bosher.

Wencker also “indicated” to an investigating officer that “he had

2

discussions about exchanging sexual photographs with [Bosher],”

and the investigating officer confirmed that “[Bosher] had sent

[Wencker] explicit images.”

¶ 4

Police obtained a search warrant for Bosher’s residence,

including his electronic devices. Their search did not uncover any

incriminating physical or digital evidence, but Bosher did make

some statements to the officers that the prosecution introduced at

trial. We describe those statements in more detail below.

II. Discussion

¶ 5

Bosher contends that (1) the trial court erroneously denied his

motion to suppress; (2) the prosecutor committed misconduct

during rebuttal closing argument; (3) the trial court erroneously

designated him as a sexually violent predator; and (4) he was

entitled to a jury trial on the habitual criminal counts.

A. Motion to Suppress

¶ 6

Bosher contends that the trial court erred when it denied his

motion to suppress statements that he made while being

questioned by Sergeant Blackwell, who was present during the

search of his home. He argues that he was in custody during the

search and interrogation but did not receive a Miranda advisement,

3

and that any statements he made should have therefore been

suppressed. We are not persuaded.

1. Standard of Review

¶ 7

Whether a defendant was subjected to custodial interrogation

is a mixed question of law and fact. People v. Pleshakov, 2013 CO

18, ¶ 16. We defer to the trial court’s findings of historical fact if

they are supported by competent evidence in the record, but we

review de novo the legal question of whether those facts establish

that the defendant was (1) in custody and (2) interrogated. Id. Our

analysis is not limited to the trial court’s factual findings and we

may also consider undisputed facts evident in the record. Id.

2. Applicable Law

¶ 8

In order to protect a defendant’s Fifth Amendment privilege

against self-incrimination, the prosecution may not use statements

stemming from his custodial interrogation unless (1) he has been

warned that he has the right to remain silent, that any statement

he makes may be used as evidence against him, and that he has a

right to an attorney, either retained or appointed; and (2) he waives

these rights voluntarily, knowingly, and intelligently. Miranda v.

Arizona, 384 U.S. 436, 467-75 (1966).

4

¶ 9

A person is “in custody” under Miranda if he has been formally

arrested or, “under the totality of the circumstances, a reasonable

person in the defendant’s position would consider himself to be

deprived of his freedom of action to the degree associated with a

formal arrest.” People v. Begay, 2014 CO 41, ¶ 13 (citation

omitted). In determining whether a defendant is in custody, courts

consider the following non-exclusive factors:

(1) the time, place, and purpose of the encounter; (2) the

persons present during the interrogation; (3) the words

spoken by the officer to the defendant; (4) the officer’s

tone of voice and general demeanor; (5) the length and

mood of the interrogation; (6) whether any limitation of

movement or other form of restraint was placed on the

defendant during the interrogation; (7) the officer’s

response to any questions asked by the defendant; (8)

whether directions were given to the defendant during

interrogation; and (9) the defendant’s verbal or nonverbal

response to such directions.

People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002).

¶ 10

Our inquiry is an objective one. Begay, ¶ 18. Subjective,

“unarticulated thoughts or views of the officers and suspects are

irrelevant.” Id. (citation omitted).

5

3. Matheny Factors

¶ 11

Applying the Matheny factors to the trial court’s factual

findings and the undisputed evidence at the suppression hearing,

we make the following observations.

(1) Time, place, and purpose of the encounter. Bosher made

the statements while his house was being searched

pursuant to a search warrant. He was detained while

the house was cleared, although he was in his kitchen,

a neutral location. He was not handcuffed.

(2) Persons present. Bosher’s fiancee was in the house

during the execution of the search warrant (although

not in the immediate vicinity). Nothing in the record

suggests that the police intentionally isolated Bosher

from his fiancee or from his daughter and son-in-law,

who arrived during the search.

(3) Words spoken to defendant. Blackwell told Bosher he

was not under arrest “several times.” He also informed

Bosher of the underlying reason for the search warrant

and told Bosher that he would be arrested if child

pornography was found.

6

(4) Officer’s tone of voice and general demeanor. The trial

court found “no evidence that any threatening language

was used by [Blackwell] or any raised voices.”

(5) Length and mood of the interrogation. The record does

not reflect how long the interrogation lasted, but the trial

court described it as a “conversation,” and specifically

noted that there was “no evidence of yelling or coercive

conduct.” In response to Bosher’s question about what

the police were looking for, Blackwell told Bosher of the

event that prompted the search warrant — Wencker’s

arrest and the search of his cell phone, which contained

“chats between [Bosher and Wencker] discussing trading

images and child pornography.” The cell phone,

Blackwell told Bosher, contained an image (sent from

Bosher to Wencker) that Bosher said was him “having

sex with a seven-year-old girl.” Bosher replied that “he

wasn’t familiar with th[e] photograph” that Blackwell was

describing, so Blackwell showed Bosher a “sanitized”

copy of it. Bosher responded, “that’s not me” and

indicated that he did not remember having that image.

7

After further discussion, and before telling Bosher that

he was free to leave, Blackwell told Bosher that he would

be arrested “if we find child pornography.”

(6) Limitation of movement or other restraint. At least six

armed officers wearing protective gear executed the

search warrant. When the officers entered the house,

they had their weapons drawn, but they reholstered them

after clearing the residence. Bosher was detained while

the house was being cleared, and during that time he

“was verbally told to move to another spot.” However, the

trial court found that “[a]t no time was [Bosher] in

handcuffs or manhandled in any way, physically

touched, or forcibly moved from one place to another.”

(7) Officer’s response to any questions. Bosher initiated the

conversation with Blackwell when he asked what the

police were looking for. Blackwell showed him the search

warrant and explained that the officers were searching

the residence for child pornography or evidence relating

to child pornography. Bosher replied, “good luck with

that.” Other than initially asking about the reason for

8

the search, Bosher did not ask questions during the

interrogation. At some point during the search, he asked

to put on additional clothing, and the officers allowed

him to do so.

(8) Whether directions were given to the defendant. As noted

above, Bosher was instructed to remain in the kitchen

while the house was being cleared, but Blackwell did not

give Bosher directions during the interrogation.

(9) The defendant’s response to any such directions. Aside

from remaining in the kitchen as requested, Bosher was

not given any directions.

4. Analysis

¶ 12

We conclude that Bosher was not in custody during the

interrogation. It took place in a neutral location pursuant to a

search (and not an arrest) warrant, see People v. Cowart, 244 P.3d

1199, 1204 (Colo. 2010) (noting that a neutral location such as the

defendant’s living room weighed against a determination of

custody), and was conducted by a single officer, see People v.

Figueroa-Ortega, 2012 CO 51, ¶ 9 (noting that defendant was not in

custody, in part because he was questioned “by a single officer in

9

civilian clothes, who neither offered any show of force nor restricted

the defendant’s freedom of movement in any way, and who made no

threats or promises or demands”). Bosher was detained while

officers cleared the house, but he was not handcuffed or physically

touched. See People v. Taylor, 41 P.3d 681, 693 (Colo. 2002)

(finding custody when defendant was detained in a “police

dominated atmosphere where the officers used physical force to

control [d]efendant’s movement”); People v. Breidenbach, 875 P.2d

879, 886 (Colo. 1994) (finding defendant in custody, in part because

officers stopped and interrogated him with guns drawn).

¶ 13

Bosher spoke first, and the encounter was conversational in

tone. Blackwell did not raise his voice, instruct Bosher to do

anything other than remain in the kitchen, or use threatening

language. See People v. Davis, 2019 CO 84, ¶ 34 (noting that open-

ended questions delivered “in a conversational tone [are] of the

exact kind [that] we have found to weigh against a finding of

custody”).

¶ 14

To be sure, there is some evidence that would lend support to

a finding of custody. For example, Blackwell did not inform Bosher

that he was free to leave until after Bosher made the challenged

10

statements. And Blackwell did tell Bosher that he would be

arrested if the searchers found child pornography. But that

statement, standing on its own, did not elevate the discussion into

a custodial interrogation. Cf. Figueroa-Ortega, ¶ 10 (“[M]erely

confronting a suspect with the evidence against him and

threatening, no matter how confidently, to charge him with a crime

at some point in the future does not, by itself, constitute an

infringement on his liberty, much less the kind of infringement

associated with a formal arrest.”).

¶ 15

Weighing the totality of the circumstances, we conclude that a

reasonable person in Bosher’s position would not consider himself

to be deprived of his freedom of action to the degree associated with

formal arrest when he spoke to Blackwell at his residence. As a

result, Bosher was not in custody for Miranda purposes and the

trial court did not err by denying his motion to suppress.

B. Prosecutorial Misconduct

¶ 16

Bosher contends that the prosecutor committed misconduct

during rebuttal closing argument when discussing the possible

alteration of a photograph to eliminate features that would identify

Bosher as the person that it depicted. We disagree.

11

1. Standard of Review

¶ 17

In reviewing prosecutorial misconduct claims, we first consider

the propriety of the prosecutor’s arguments, keeping in mind that

“[w]hether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.” Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We consider

“the context of the argument as a whole and in light of the evidence

before the jury.” People v. Samson, 2012 COA 167, ¶ 30.

¶ 18

If any of the statements were improper, we review their

“combined prejudicial impact” to determine whether reversal is

required under the applicable standard. Domingo-Gomez, 125 P.3d

at 1053; see also Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

“As to preserved issues, the trial court’s rulings on prosecutorial

misconduct ‘will not be disturbed by an appellate court in the

absence of a gross abuse of discretion resulting in prejudice and a

denial of justice.’” People v. Rhea, 2014 COA 60, ¶ 42 (citation

omitted).

2. Applicable Law

¶ 19

A prosecutor may use legitimate means to bring about a just

conviction but must avoid using improper methods designed to

12

obtain an unjust result. Domingo-Gomez, 125 P.3d at 1048.

Prosecutorial remarks that evidence personal opinion or personal

knowledge, or that inflame the passions of the jury, are improper.

Id. at 1050.

¶ 20

When reviewing allegedly improper comments during closing

arguments, we must consider the comments in the context of the

prosecutor’s closing argument as a whole and in light of all the

evidence. People v. Serpa, 992 P.2d 682, 685 (Colo. App. 1999).

Prosecutors have wide latitude during closing arguments and “may

comment on the evidence admitted at trial, the reasonable

inferences that can be drawn from the evidence, and the

instructions given to the jury.” People v. Welsh, 176 P.3d 781, 788

(Colo. App. 2007); see People v. DeHerrera, 697 P.2d 734, 743 (Colo.

1985) (closing argument may properly include facts in evidence and

any reasonable inferences drawn therefrom.).

3. Additional Facts

¶ 21

The comments in question referenced the photograph that

Bosher texted to Wencker, which depicted a man engaged in a

sexual act with a “minor child female.” In the photograph, the

male’s face is not seen, but he appeared to have “a mole or

13

birthmark on [his] left hip.” Wencker told police “that Mr. Bosher

told him that it was him [Bosher] having sex with her.” When

confronted with the photograph at his residence during the

execution of a search warrant, however, Bosher denied that he was

in it and voluntarily showed Blackwell his left hip, which did not

have a similar mark.

4. Analysis

¶ 22

In closing argument, Bosher’s attorney argued that Bosher

was not in the photograph because he did not have a mole on his

hip. The prosecutor addressed that question in rebuttal as follows.

[O]ne of the last things you saw in evidence, is

the mole. Or the lack — excuse me, the lack of

a mole.

One of the things that I asked their expert

about repeatedly, was the ability to manipulate

a photograph and the different softwares that

are out there. And what I put to you, is that

somebody who is engaged in the distribution of

child pornography, might have a motive to

alter the photograph.

Defense counsel objected to this statement, but the trial court

overruled the objection.

¶ 23

We conclude that the prosecutor’s statement was a fair

response to defense counsel’s “opening salvo,” People v. Perea, 126

14

P.3d 241, 247 (Colo. App. 2005) (citation omitted), and did not

mislead or unduly influence the jury. It was consistent with the

following colloquy between the prosecutor and Bosher’s expert on

computer forensics.

[Prosecutor]: [I]n your expert opinion, would

you say that collectors of child pornography

take every measure they can to oftentimes

change file names or shield what’s in files and

try to keep those images secret?

[Witness]: [T]here are collectors who I would

describe as enormously careful . . . .

. . . .

[Prosecutor]: [I]f the images started out as a

Polaroid and were then converted to a digital

file, they could be manipulated in any number

of ways to include cropping out what we would

commonly understand like the white border

around a Polaroid photo?

[Witness]: Anything is possible.

¶ 24

The court also asked the expert a similar question that had

been submitted by a member of the jury.

[Court]: Are there programs available that

allow for enhancement of photographs?

[Witness]: Yes.

[Court]: I.e. making Polaroids clearer or more

professional level?

15

[Witness]: No. The photo editing

programs . . . that can lighten photographs or

change colors or other such things like that,

they would not be able to enhance the quality

of a photograph.

¶ 25

Given this testimony, we conclude that the prosecutor’s

statement was within the bounds of reasonable inference drawn

from the evidence. The prosecutor did not directly argue that

Bosher altered the photograph in question, rather, he made a

generalization that collectors of child pornography would have

reason to alter photographs and the available tools to accomplish

such a task. This commentary was consistent with the expert’s

testimony and was a reasonable response to defense counsel’s

argument that Bosher was not in the picture because it did not

match Bosher’s physical characteristics.

¶ 26

Accordingly, we discern no abuse of discretion.

C. SVP Designation

¶ 27

Bosher contends, and the People concede, that the trial court’s

findings were insufficient to support his SVP designation because

the trial court did not specifically find that Bosher promoted a

relationship with the victim primarily for the purpose of sexual

16

victimization, as required under section 18-3-414.5(2), C.R.S. 2021.

We agree.

1. Applicable Law

¶ 28

Section 18-3-414.5(2) provides that, based on the results of

the risk assessment prepared by the probation department, the trial

court “shall make specific findings of fact and enter an order

concerning whether the defendant is a sexually violent predator.” §

18-3-414.5(2); see People v. Tuffo, 209 P.3d 1226, 1231-32 (Colo.

App. 2009) (remanding for specific factual findings on contested

issues underlying the SVP designation).

¶ 29

Here, the trial court did not make specific factual findings as

to whether Bosher “promoted a relationship” with A.S. Moreover,

the risk assessment indicated that he did not “promote a

relationship.” The record is therefore inadequate to support the

trial court’s generalized finding that Bosher met the criteria for his

SVP designation, and we remand the case for the trial court to

make specific findings on that question as required by section 18-3-

414.5(2), and, if necessary, to correct the mittimus accordingly.

D. Right to Trial by Jury

17

¶ 30

Bosher contends that the trial court erred when the trial

judge, rather than a jury, adjudicated him a habitual offender.

Because it is settled that there is no constitutional right to a jury

trial on habitual offender charges, we discern no error.

1. Applicable Law

¶ 31

The Supreme Court held in Apprendi v. New Jersey, that

“[o]ther than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. 466, 490 (2000).

2. Analysis

¶ 32

Under the “prior conviction” exception, habitual criminality

may be constitutionally adjudicated by a judge and not a jury. See

Lopez v. People, 113 P.3d 713, 723 (Colo. 2005) (holding the prior

conviction exception to the right to jury trial “remains valid”); see

also Mountjoy v. People, 2018 CO 92M, ¶¶ 11-24 (rejecting a

challenge to Lopez); People v. Pointdexter, 2013 COA 93, ¶¶ 72-73

(“The Colorado Supreme Court reaffirmed the prior conviction

exception in Lopez . . . .”). Accordingly, Bosher was not entitled to a

jury trial on the habitual criminal charges.

18

III. Conclusion

¶ 33

The judgment of conviction is affirmed. We vacate the order

designating Bosher a sexually violent predator and remand for the

trial court to make specific factual findings consistent with this

opinion, and, if warranted, to correct the mittimus accordingly.

JUDGE RICHMAN and JUDGE TOW concur.