Peo v. Whitehorn

22CA0371 Peo v Whitehorn 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0371
City and County of Denver District Court No. 19CR116
Honorable Ericka F.H. Englert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Byron L. Whitehorn,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE JOHNSON
Lipinsky and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 27, 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, Mackenzie R. Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Byron L. Whitehorn (Whitehorn), appeals the

judgment of conviction entered on jury verdicts finding him guilty of

eight counts of sexual assault involving four victims. On appeal,

Whitehorn contends that the district court erred by (1) allowing the

prosecutor to engage in misconduct when she linked Whitehorn’s

right to remain silent with the jury asking itself why Whitehorn had

been in lower downtown Denver (LoDo) — the location of the

assaults — at night; (2) admitting his Uber driving records from two

years before he was charged; (3) permitting the victims to testify

about the impact of the assaults; and (4) allowing the initial

investigating officers to testify about their screening process for

sexual assault cases because that testimony suggested he was

guilty. He also alleges cumulative error. We discern no reversible

errors and, thus, affirm.

I. Background

¶2 Four women, who had never previously met Whitehorn or each

other, accused him of sexual assault in four separate incidents

between April 2017 and December 2018. All four victims — L.L.,

T.M., N.H., and P.D. — had been drinking with friends at bars

located in LoDo on the nights of the incidents. The victims had

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become separated from their friends or wanted to return home early

and were waiting on the street for an Uber. The victims testified

that they were very intoxicated and a man picked them up and took

them to his car. They each passed out while in the car and had

memories of waking up while a man was sexually assaulting them.

The women underwent sexual assault examinations and DNA

samples were taken from all the victims.

¶3 Before P.D.’s assault, which was the last of the assaults with

which Whitehorn was charged, no suspect or suspects had been

identified in connection with the other three victims. During an

examination of P.D.’s phone, law enforcement located the name

“Byron” and a phone number that had been entered around the

time of P.D.’s sexual assault. P.D. did not recognize the name or

the number. The phone number was not associated with a cell

phone account, so the police left a voicemail. Eventually Whitehorn

called back from a different number and the police asked him to

come to the station to provide a saliva sample. Based on the caller

identification number associated with Whitehorn’s call, law

enforcement discovered that a car registered to Whitehorn matched

the four victims’ description of the vehicle that the person who

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sexually assaulted them had driven. Whitehorn provided a saliva

sample that was later matched to the DNA samples taken during

the victims’ examinations.

¶4 The prosecution charged Whitehorn with eight counts of

sexual assault — for each victim, one count of sexual assault

(submission against will), § 18-3-402(1)(a), C.R.S. 2018,1 and one

count of sexual assault (victim incapable of appraising nature of

conduct), § 18-3-402(1)(b), both of which are class 4 felonies, § 18-

3-402(2). Whitehorn’s theory of defense was that he believed the

sexual intercourse with the four women was consensual, following

random encounters at bars in LoDo.

¶5 The jury convicted Whitehorn as charged. The district court

merged the four incapable of appraising conduct counts into the

four overcoming the victim’s will counts and sentenced him to four

consecutive sentences of six years to life in the custody of the

1 The definition of sexual assault in section 18-3-402(1)(a) was

amended in 2022. Ch. 41, sec. 1, § 18-3-402, 2022 Colo. Sess.
Laws 214. The prior version of the statute was in effect at the time
of the events at issue in this case; therefore, we apply the 2018
version of section 18-3-402 throughout this opinion.

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Department of Corrections for a controlling sentence of twenty-four

years to life.

II. Prosecutorial Misconduct

¶6 Whitehorn contends that the prosecutor engaged in

misconduct when she asserted during rebuttal closing that the jury

could ask itself why Whitehorn was in LoDo even though he had

invoked his right to remain silent. We agree that the prosecutor’s

statement was improper. But we conclude that the statement was

harmless beyond a reasonable doubt.

A. Standard of Review

¶7 We engage in a two-step analysis when reviewing prosecutorial

misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). “First, [we] determine whether the prosecutor’s questionable

conduct was improper based on the totality of the circumstances.”

Id. Second, we decide “whether such actions warrant reversal

according to the proper standard of review.” Id.

B. The Prosecutor Engaged in Misconduct

¶8 During rebuttal, the prosecutor said the following:

[W]hen you go back into that jury room you
are instructed to take all of this evidence that

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you’ve heard and consider it in light of your
own experiences in life.

So let’s talk about that. Right. We as human
beings understand certain patterns of
behavior, certain experiences. What’s really
critical about that is when you think about
who this person is, this is a man who was fifty
years old, nearly twice the age of each and
every single one of these women, who is
married, young kids, and while he has the
absolute right to remain silent, that doesn’t
mean that when you go back into that jury
room, does that mean you can’t ask yourself
what is he doing there?

(Emphasis added.) Whitehorn contends that the prosecutor’s

statement suggested that, without an explanation as to “what [he

was] doing there,” the jury could use his silence to infer he was

guilty. Defense counsel objected, arguing that the statement was

an inappropriate comment on Whitehorn’s constitutional right to

remain silent. Although the court cautioned the prosecutor, it

overruled defense counsel’s objection.

¶9 We conclude that the court erroneously allowed the prosecutor

to engage in misconduct by not striking the statement. It is

axiomatic that a prosecutor may not argue that a “defendant’s

silence implies that he or she is guilty.” People v. Gibson, 203 P.3d

571, 577 (Colo. App. 2008); see also Dunlap v. People, 173 P.3d

5
1054, 1080 (Colo. 2007) (the prosecution may not urge the jury to

use a defendant’s exercise of the right to remain silent to infer

guilt). Thus, we conclude the prosecutor’s comment is problematic

for four reasons.

¶ 10 First, the prosecutor’s comment told the jury that Whitehorn

was married with children, when there was no testimony before the

jury about Whitehorn having kids. There had been testimony that

Whitehorn’s wife owned the vehicle that Whitehorn drove on the

nights of certain of the assaults. But the only reference we see in

the record to Whitehorn having children is defense counsel’s offer of

proof, made outside the presence of the jury, that, if Whitehorn

were to testify, he would say one of the victims had not been upset

about having sex with him until she saw a picture of his children in

his home. See People v. Nardine, 2016 COA 85, ¶ 59 (a prosecutor

should not refer to facts not in evidence); see also People v. McMinn,

2013 COA 94, ¶ 62 (same).

¶ 11 Second, the prosecutor linked Whitehorn’s right to remain

silent with a lack of explanation for why he might have been “there”

— meaning she wanted the jury to use its common sense and ask

itself why a man who was married with young children was trolling

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LoDo, where the assailant picked up the victims, instead of being at

home with his family. True, the prosecutor did not say that the jury

could use Whitehorn’s silence to convict him. But the statement

sought to equate his silence with an inference that he was guilty.

In other words, because he did not testify regarding the reason for

his presence in the area, the jury could — and should — infer the

worst. See Gibson, 203 P.3d at 577 (The test “for whether a

prosecutor’s argument constitutes a comment on the defendant’s

failure to testify is whether the comment directs the jury’s attention

to the defendant’s silence as a means of implying guilt.”).

¶ 12 Third, the comment was unnecessary. “[B]ecause arguments

delivered in the heat of trial are not always perfectly scripted,

reviewing courts accord prosecutors the benefit of the doubt when

their remarks are ambiguous or simply inartful.” People v. Samson,

2012 COA 167, ¶ 30. But in our view, this was not simply

misspeaking or inartful phrasing. A prosecutor has latitude to

present arguments based on facts in evidence, ask the jury to make

reasonable inferences drawn from those facts, and respond to the

defendant’s arguments. People v. Maloy, 2020 COA 71, ¶ 61. The

prosecutor could have made her point without referring at all to

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Whitehorn’s right to remain silent. Specifically, the prosecutor

could have posed the questions: Why was Whitehorn in the area

when married? Should he not be at home with them?

¶ 13 Finally, this is not a situation in which defense counsel

opened the door in closing argument so that the prosecutor was

entitled to respond in kind during rebuttal closing. See People v.

Lovato, 2014 COA 113, ¶ 63 (“In considering whether prosecutorial

remarks are improper, the reviewing court must weigh the effect of

those remarks on the trial, and also take into account defense

counsel’s ‘opening salvo.’”) (citation omitted). We see nothing in

defense counsel’s closing argument as an “opening salvo” on

Whitehorn’s right to remain silent.

¶ 14 Nor was this a situation in which the prosecutor was referring

to questions that Whitehorn had refused to answer or had answered

by leaving out material information when talking with police. For

example, a prosecutor may comment that a defendant spoke at

length to police but did not discuss or disclose certain information.

See People v. Lewis, 2017 COA 147, ¶ 36; see also Berghuis v.

Thompkins, 560 U.S. 370, 388-89 (2010) (“[A] suspect who has

received and understood the Miranda warnings, and has not

8
invoked his Miranda rights, waives the right to remain silent by

making an uncoerced statement to the police.”); cf. People v.

Quintana, 665 P.2d 605, 611 n.7 (Colo. 1983) (“The failure to make

any statement should be distinguished from the situation where an

accused does make a statement to law enforcement officials but the

statement omits significant details which are later included in a

subsequent statement. In the latter situation the accused has not

elected to remain silent, but instead has waived that right and

made a statement.”).

C. The Error Was Harmless Beyond a Reasonable Doubt

¶ 15 Although we conclude the court allowed the prosecutor to

engage in misconduct, we conclude the error was harmless beyond

a reasonable doubt.

¶ 16 “Only those errors ‘that specifically and directly offend a

defendant’s constitutional rights are “constitutional” in nature.’”

People v. Flockhart, 2013 CO 42, ¶ 20 (quoting Wend, 235 P.3d at

1097); see People v. Payne, 2019 COA 167, ¶ 30. This includes an

“impermissible comment on a defendant’s exercise of a specific

constitutional right, such as his right not to testify, his right to be

9
tried by a jury, or his right to post-arrest silence.” Wend, 235 P.3d

at 1097 (quoting Crider v. People, 186 P.3d 39, 42 (Colo. 2008)).

¶ 17 Under constitutional harmless error review, the prosecution

bears the burden of proving that the error was harmless beyond a

reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11. “An error is

not harmless beyond a reasonable doubt ‘[i]f there is a reasonable

possibility that the defendant could have been prejudiced.’” People

v. Castro, 2022 COA 101, ¶ 39 (quoting People v. Stroud, 2014 COA

58, ¶ 6). In other words, the harmless error analysis focuses on

“‘whether the guilty verdict actually rendered in this trial was surely

unattributable to the error,’ and ‘not whether, in a trial that

occurred without the error, a guilty verdict would surely have been

rendered.’” People v. Phillips, 2012 COA 176, ¶ 93 (quoting People

v. Fry, 92 P.3d 970, 980 (Colo. 2004)).

¶ 18 In assessing whether we should reverse a conviction due to

prosecutorial misconduct, we look at “the language used, the

context of the statements, the strength of the evidence, whether the

prosecutor improperly appealed to the jurors’ sentiments, whether

the misconduct was repeated, and any other relevant factors.”

People v. Liebler, 2022 COA 21, ¶ 51.

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¶ 19 We conclude that the error was harmless beyond a reasonable

doubt for three reasons.

¶ 20 First, the comment was brief and not repeated. People v.

Cuellar, 2023 COA 20, ¶ 51 (the prosecutor’s improper statements

during closing argument were harmless due to the brief nature of

the argument and the fact that the prosecutor did not repeat those

improper statements); People v. Vialpando, 2022 CO 28, ¶ 41

(same).

¶ 21 Second, the jury was properly instructed on Whitehorn’s right

to remain silent and that such silence could not be used to infer his

guilt. And without evidence in the record to the contrary, we must

presume the jury followed the court’s instructions. See Galvan v.

People, 2020 CO 82, ¶ 29; People v. Snelling, 2022 COA 116M, ¶ 22.

¶ 22 Finally, the evidence against Whitehorn was overwhelming.

Whitehorn disagrees, contending that this case rests solely on

witness credibility. While it is true that the victims’ credibility was

at issue, as discussed next, his argument fails to consider the

pattern of how the victims came to be in Whitehorn’s car, the

victims’ similar testimony about the sexual assaults, the

corroborating testimony from the victims’ friends and family, the

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physical evidence of nonconsensual sex, and the evidence

supporting Whitehorn’s consciousness of guilt.

1. The Pattern of Whitehorn Picking up the Victims

¶ 23 Whitehorn picked up all of the very intoxicated victims in

LoDo.

¶ 24 At trial, L.L. testified that in April 2017, she had gone to

brunch and a Rockies game with friends, drank throughout the day

and evening, and got separated from her friends at the end of the

evening. Her cell phone had died so she could not call a rideshare.

¶ 25 The second victim, T.M., testified that, in October 2017, she

was visiting a friend in Denver. They went out to bars in LoDo.

While at one bar, T.M. was separated from her friend, who went to

get them more drinks. Because T.M. could not find her friend, she

went outside. T.M.’s phone was dead, which prompted her to ask

strangers outside the bar for assistance. After speaking with some

strangers, a man approached her. Despite not remembering the

specifics, she walked with the man down the street alone.

¶ 26 The third victim, N.H., testified that in January 2018, she

drove with friends from Boulder to Denver to stay with a friend.

Before going out with her friends, she took shots of tequila and

12
consumed some cocaine. N.H. and her friends went drinking in

LoDo. At some point during the night, she went outside the bar to

call an Uber to take her home. Before calling the Uber, she video-

called a friend, when suddenly a man N.H. later identified as

Whitehorn approached her. She remembered that he offered her a

ride home and being inside his car.

¶ 27 And P.D. testified that in December 2018, she went out with

friends to bars in LoDo. At some point during the night, P.D.

decided she wanted to leave. Her friend wanted to stay at the bar,

so P.D. called an Uber to take her home. When P.D. went outside,

P.D. was approached by a man who offered to help her. He grabbed

her phone and cancelled the Uber. P.D. then walked with the man,

eventually passing out in his car.

2. The Similarity of the Victims’ Testimony

¶ 28 Once in the car, the victims also had similar testimony about

what occurred.

¶ 29 L.L. testified she was so intoxicated that her next memory

after wanting to go home was waking up in the back of a car in a

fetal position. She did not recognize the car or the man. The man

asked her to move to the front seat and told her he would take her

13
home. She gave him her address and moved up to the front seat.

She then remembered the man being on top of her, having sex with

her in the car.

¶ 30 After encountering her assailant, T.M. remembered entering

another bar and having a beer with him. She did not remember

where her friend’s house was and did not remember agreeing to go

to the man’s house, but they went to his house anyway. She

remembered vomiting in the man’s car while driving there. But

T.M. could not remember what happened after she went inside the

man’s house; she only faintly recalled the layout of the house and

the bedroom window, as well as vomiting again in the bathroom.

Her next memory was being on the man’s bed with her pants down

and the man on top of her having sex. She asked him to stop,

which he did. T.M. then got dressed, gave the man her friend’s

home address, and asked him to take her there.

¶ 31 While in the man’s car, N.H. remembered having a confusing

conversation in which he claimed to know her boyfriend. N.H.’s

next memory was the man on top of her, having sex with her, in the

passenger seat of the car. She did not recall consenting. Her next

memory was waking up in Boulder.

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¶ 32 Once in the car, P.D.’s next memory was the man being on top

of her, having sex with her, in the passenger seat. Her underwear

was torn. She recalled the sex being “really gross” and that she

“wanted it to stop.” She said that she waited for it to end.

3. Corroborating Testimony of Friends

¶ 33 Some of the victims’ friends testified that the victims told them

about the sexual assaults immediately after they occurred.

¶ 34 L.L. told a friend what she remembered about the night,

including that she thought she was raped but was not sure.

Encouraged by her friend, on that same night, she went to a

hospital and underwent a sexual assault nurse examiner (SANE)

exam.

¶ 35 After the man drove T.M. back to her friend’s house in Denver,

she went to bed. The next morning, T.M. told her friend her

recollection of the prior night, including that she believed she had

been raped. After urging T.M. to get checked out, her friend took

her to a hospital where she was examined by a SANE and recounted

her experience.

¶ 36 While N.H. was in the man’s car, her friends were looking for

her. They used a tracking app on N.H.’s cell phone, noticing she

15
was heading back to Boulder. One of her friends went to N.H.’s

house to wait for her. Her friend recalled a white car pulling up to

the home. N.H.’s friend opened the car door, saw N.H. texting on

her phone and get out of the passenger seat, and realized

something was off. The next morning, N.H.’s friends insisted she go

to a hospital. Although reluctant to do so, she went and was

examined.

4. Evidence of Nonconsensual Sex

¶ 37 L.L. remembered that, when she awoke to her assailant having

sex with her, she was disconcerted because she was menstruating

and was using a tampon. She told the man she was on her period

and asked him to get off her, which he did. Once L.L. realized they

were parked near her house, she asked the man to take her home.

He dropped her off and gave her his number.

¶ 38 During L.L.’s examination, the SANE noticed a genital tear but

did not find a tampon. The SANE also observed a bruise on L.L.’s

elbow. L.L. continued to experience pain in her genital area for an

extended period of time. She sought treatment approximately six

weeks later, when a doctor finally discovered the tampon, and it

was removed.

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¶ 39 During N.H.’s examination, the SANE observed discharge from

her nipple ring, multiple diffused bruises on her lower legs, a small

bruise on her back leg, and tenderness to her lower back and left

arm.

¶ 40 P.D. testified there was a tear on the underwear she wore on

the day of the sexual assault and that she would not have put on

torn underwear.

5. Evidence of Whitehorn’s Consciousness of Guilt

¶ 41 Detective Loretta Beauvais (Beauvais), who investigated P.D.’s

case, testified that she located in P.D.’s cell phone a phone number

under the name “Byron” that had been entered into P.D.’s phone

around the time of the assault. Beauvais recounted that, after she

called the number and no one answered, she left a voicemail to an

inbox identified as “Byron.” She further stated that the number in

P.D.’s phone was associated with a Voice Over Internet Protocol

number, which meant there was no subscriber information for

tracing purposes, and that such a service could be purchased for

any type of business.

¶ 42 Whitehorn returned Beauvais’s call from a different cell phone

number, which she testified was then traced back to him. After

17
Whitehorn returned the call to police and gave his saliva sample, he

deactivated his cell phone account that same day. The following

day, he got a new phone. See People v. Perry, 68 P.3d 472, 475

(Colo. App. 2002) (holding that evidence of a defendant’s flight

might be relevant to show consciousness of guilt, but only if the

defendant was aware that the police were searching for him).

¶ 43 Given the overwhelming evidence presented in this case

linking Whithorn to each victim’s assault, and the brevity of the

prosecutor’s comment in rebuttal about Whitehorn’s right to remain

silent, we conclude that the error was harmless beyond a

reasonable doubt.

III. Admission of Whitehorn’s Uber Records

¶ 44 Whitehorn contends that the district court erred by admitting

his Uber records from when he drove for the company in 2015, two

years before any charged conduct occurred. He argues that the

records created the inference that he (1) utilized his time as an Uber

driver to scheme the sexual assaults in this case and (2) had

sexually assaulted women before 2017. On appeal, Whitehorn

asserts the evidence was subject to the requirements of CRE 404(b),

18
and the court erred by failing to undertake an analysis required by

People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). We disagree.

A. Additional Facts

¶ 45 At trial, Whitehorn’s defense counsel moved to exclude his

Uber driving records. These records included approximately eighty-

eight trip receipts, sixty-five percent of which were for trips in the

LoDo area.

¶ 46 Outside the presence of the jury, the prosecutor argued that

the records were relevant to establish Whitehorn had previously,

and frequently, been at locations near where the victims had been

picked up. The prosecutor further asserted that the records were

relevant to show that Whitehorn “had the opportunity to observe this

part of downtown and know exactly what’s going on down there, i.e.,

women who are alone and out on the streets.” (Emphasis added.)

Defense counsel objected to admission of the Uber records, arguing

they were irrelevant under CRE 401 and 403.

¶ 47 The district court allowed admission of the records:

Based on the offer of proof of the People and
the arguments I’ve heard, the Court finds that
the Uber records from 2015 that demonstrate
that Mr. Whitehorn was in the area of these
alleged incidents with some frequency,

19
possibly up to 65 percent of the total rides that
he drove for Uber, the Court finds is relevant in
this case to Mr. Whitehorn’s ability to observe
the area, to have knowledge of the streets in the
area, and possibly also to observe the – the
manner in which people, women or otherwise,
conducted themselves at the time – around the
time that bars were let out is admissible in this
case, and the motion in limine is denied.

(Emphasis added.)

B. Standard of Review and Applicable Law

¶ 48 The district court’s decision to admit evidence under CRE

404(b) is reviewed for an abuse of discretion. Yusem v. People, 210

P.3d 458, 463 (Colo. 2009). A court abuses its discretion in this

context when its ruling is manifestly arbitrary, unreasonable, or

unfair, or is based on a misunderstanding or misapplication of the

law. People v. Heredia-Cobos, 2017 COA 130, ¶ 6.

¶ 49 Evidence of a defendant’s other crimes, wrongs, or acts is not

admissible to prove the defendant’s bad character or propensity to

commit crimes. CRE 404(b). The rule, however, allows for

admission of such evidence for some other relevant purpose, such

as to prove common plan, scheme, or design. Yusem, 210 P.3d at

463; Adrian v. People, 770 P.2d 1243, 1244 (Colo. 1989). The

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“prosecution must identify the specific purpose for which the

evidence will be used.” Yusem, 210 P.3d at 464.

¶ 50 Before admitting other act evidence, the district court must be

satisfied by a preponderance of the evidence that the other act

occurred and that the defendant committed it. CRE 104; People v.

Rath, 44 P.3d 1033, 1039 (Colo. 2002). Next, the district court

must find that (1) the proffered evidence relates to a material fact;

(2) the evidence is logically relevant; (3) the logical relevance is

independent of any inference that the defendant has a bad

character; and (4) the danger of unfair prejudice does not

substantially outweigh the probative value of the evidence. Spoto,

795 P.2d at 1318.

C. Analysis

¶ 51 We conclude for four reasons that the district court did not err

by admitting Whitehorn’s Uber driving records.

¶ 52 First, Whitehorn mistakenly asserts on appeal that, because

the Uber driving records are extrinsic evidence, a CRE 404(b)

analysis should have been undertaken by the court. Whitehorn

relies on Rojas v. People, 2022 CO 8, ¶¶ 36-41. In that case, our

supreme court abolished the doctrine of res gestate and held that

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courts must analyze whether other act evidence is intrinsic or

extrinsic to the offense. Id. In other words, Whitehorn maintains

that, under Rojas, the drives documented in the Uber records did

not occur contemporaneously with the charged offenses and did not

facilitate the commission of the offenses, and, thus, the evidence is

extrinsic and subject to a Rule 404(b) analysis.

¶ 53 But as the Attorney General correctly asserts, while the driving

records are extrinsic to the charged offense, they do not implicate

character or a “bad act” because no charges or knowledge of bad

acts existed in 2015 when Whitehorn drove for Uber. We agree that

a Rule 404(b) analysis was not required. See Rojas, ¶ 52 (“[I]f

extrinsic evidence does not suggest bad character, Rule 404(b) does

not apply and admissibility is governed by Rules 401-403.”); see

also Burkins v. State, 219 N.E.3d 735, 749 (Ind. Ct. App. 2023) (a

person stating their feelings is not considered a bad act);

Commonwealth v. Dula, 262 A.3d 609, 632 (Pa. Super. Ct. 2021)

(holding that a defendant’s “odd work behavior” did not constitute a

bad act for purposes of Rule 404(b), so the question was whether

the evidence was relevant).

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¶ 54 Second, and related to the first reason, Whitehorn’s contention

that the court did not provide a limiting instruction is irrelevant.

The court’s admission of the records under CRE 401 and 403 did

not require such an instruction and Whitehorn did not ask for one.

See People v. Griffin, 224 P.3d 292, 298-99 (Colo. App. 2009)

(holding that defense counsel is charged with the task of deciding

whether a limiting instruction is desirable, and the court must give

a limiting instruction “upon request” (quoting CRE 105)); see People

v. Garcia, 981 P.2d 214, 217 (Colo. App. 1998) (there may be

strategic or tactical reasons for a defendant’s choice not to request a

limiting instruction, and the court is not required to provide one

sua sponte).

¶ 55 Third, even assuming that a Rule 404(b) analysis was

required, the records satisfy the four-part Spoto test. See People v.

Draper, 2021 COA 120, ¶ 85 n.10 (A district court’s “decision to

admit evidence may be defended by any ground supported by the

record, even if that ground was not considered by the trial court.”),

overruled by Garcia v. People, 2023 CO 30. The records relate to

material facts — they showed that Whitehorn had knowledge of

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LoDo and an opportunity to observe which areas people frequented

and how women conducted themselves when bars were closing.

¶ 56 Although this prior knowledge of and familiarity with the area

where the victims were picked up are not directly related to proving

“motive, opportunity, intent, preparation, plan, . . . or absence of

mistake or accident,” they are material facts regarding the sexual

assaults because they are “intermediate or evidential facts [that are]

probative of ultimate facts.” Rath, 44 P.3d at 1039-40; see also

Vialpando v. People, 727 P.2d 1090, 1095 (Colo. 1986) (“[A] ‘fact of

consequence to the determination of the action’ also includes facts

bearing circumstantially upon the weight or probative value to be

given other evidence in the case.” (quoting Michael H. Graham,

Handbook of Federal Evidence § 401.1, at 151-52 (2d ed. 1986))).

The victims’ testimony established that the assaults occurred in a

similar manner: Whitehorn approached them outside bars while

they were intoxicated and alone in areas in which Whitehorn

previously often drove for Uber.

¶ 57 The Uber records were also logically relevant to establish

Whitehorn’s familiarity with the location and observation of people’s

activities. An investigator on the case testified that Whitehorn’s

24
experience as an Uber driver for approximately two years included

176 locations, 107 of which were in LoDo near the bars in question,

during late night hours.

¶ 58 The evidence was also independent of any inference that

Whitehorn had a bad character because there is nothing inherently

improper about being an Uber driver; rather, the location, timing,

and frequency of Whitehorn’s Uber trips were the relevant facts.

Thus, we conclude that Whitehorn’s Uber records satisfy the third

and fourth Spoto prongs.

¶ 59 Fourth and finally, we disagree with Whitehorn that the

probative value of the Uber records was outweighed by the

prejudice of their admission. At no time did the prosecution use the

evidence to suggest Whitehorn was “hatching” a plan to sexually

assault women during his tenure with Uber in 2015. Accordingly,

because the district court appropriately exercised its discretion to

determine relevancy, we will not disturb the court’s admission of

the records under CRE 401 and 403. See People v. Rodriguez, 209

P.3d 1151, 1160-61 (Colo. App. 2008).

¶ 60 Accordingly, we perceive no reversible error in the admission

of the Uber records.

25
IV. The Witnesses’ Victim Impact Testimony and
the Evidence of Screening

¶ 61 Whitehorn next contends that the district court improperly (1)

allowed victim impact testimony and (2) permitted officers to testify

about their screening process to imply Whitehorn’s guilt. We

discern no error.

A. Standard of Review

¶ 62 As noted above, we review a court’s evidentiary rulings for an

abuse of discretion.

B. Victim Impact Testimony

¶ 63 Whitehorn argues that the extensive testimony of the victims

and their friends about the psychological and emotional effects of

the assaults was irrelevant impact evidence and was unfairly

prejudicial because it improperly shifted the jury’s focus from

deciding whether Whitehorn committed the crime to imposing a

guilty verdict out of sympathy. We disagree.

1. Additional Facts

¶ 64 During direct examination, the prosecutor asked L.L. whether

she had moved following the sexual assault. She responded that

she had moved “three weeks later,” that it was not her original plan

to move at that time, and that she moved because of the incident

26
involving Whitehorn. On redirect, L.L. was asked how she felt “in

the days following” the incident relating to not wanting to cooperate

with the investigation, and she responded that she felt “very

anxious” and “scared,” and was worried that “someone would come

after me for doing something.”

¶ 65 During P.D.’s cross-examination, defense counsel asked her

“in those hours the next day after” the incident, “are you trying to

put the pieces back together to figure out how this happened?”

P.D. responded that she felt “numb.” Defense counsel then asked,

“Has this been a persistent part of your life since this occurred back

in 2018?” P.D. responded, “It has ruined my life.”

¶ 66 P.D.’s boyfriend at the time of her assault testified that P.D.

texted him the night of the incident that she had just been “sexually

assaulted.” He went to her apartment and described her as sobbing

and “very broken down.” He also testified that P.D. did not like

physical contact for one or two months after the incident.

¶ 67 P.D.’s friend H.C. also testified that she was at P.D.’s

apartment the night of the incident. H.C. described P.D. as “very

shaken” for several days and said she was very quiet and had

nightmares. H.C. said that it was an “intense couple of months”

27
when she and P.D. would just sit together. H.C. recounted that she

altered her work schedule so she could be home more so P.D. did

not have to be home alone, and that P.D. was tired and would

sometimes cry.

¶ 68 N.H.’s roommate, S.R., testified that in the days after the

assault N.H. was not in a “good place” and was withdrawn and

would not come out of her room.

¶ 69 In closing argument, the prosecutor mentioned some of this

testimony:

These are not women who simply regretted a
one-night stand, you can see the way that this
has impacted them from their demeanor on the
stand, the fact that they sought therapy. They
moved from their houses or had issues with
relationships. This is not simply a regretting
of one night. Each one of them, in the moment,
realized they did not consent to this.

(Emphasis added.)

¶ 70 In rebuttal, the prosecutor also said:

When you look at these four women, when you
think back to meeting each and every one of
them on that witness stand, when you think
about their testimony, when you think about
the way his actions have impacted them and
how visceral that was for each and every one of
these women – [N.H.], she couldn’t even look
over here. She was curled up, turned in that

28
direction. That’s what happened to these
women as a result of this man’s intentional
actions.

(Emphasis added.)

2. Analysis

¶ 71 Whitehorn contends that testimony of the victims and their

friends, as well as the prosecutor’s statements during rebuttal

closing, directed the jury to consider the victims’ trauma, resulting

in the jury convicting Whitehorn based on sympathy rather than on

a consideration of whether he committed the charged offenses.

Assuming, without deciding, that the testimony Whitehorn

challenges is victim impact evidence, it was relevant and not unduly

prejudicial. Therefore, we discern no error.

¶ 72 Victim impact evidence is evidence that relates to “the victim’s

personal characteristics and to the physical, emotional, or social

impact of a crime on its victim and the victim’s family.” People v.

Martinez, 2020 COA 141, ¶ 29 (quoting Schreibvogel v. State, 2010

WY 45, ¶ 22); see State v. Graham, 650 S.E.2d 639, 645 (N.C. Ct.

App. 2007) (explaining that victim impact evidence includes the

physical, psychological, emotional, and economic toll a crime takes

on the victim and the victim’s family).

29
¶ 73 Whitehorn relies on Martinez, ¶¶ 2-3, 33, in which the division

held, under the facts of that case, that a mother’s testimony about

her daughter being depressed and suicidal was improper victim

impact testimony because it did not make it more probable that the

victim had been sexually assaulted. But Martinez is

distinguishable.

¶ 74 The defendant in Martinez was charged with sexual assault

(incapable of appraising nature of conduct), § 18-3-402(1)(b).

Martinez, ¶ 10. That offense involves a victim who cannot

understand what she is doing. People v. Lancaster, 2022 COA 82,

¶ 17. Therefore, the offense “focuses on the actor’s awareness of

the victim’s cognitive incapability of appraising the nature of his or

her own conduct.” People v. Platt, 170 P.3d 802, 805 (Colo. App.

2007), aff’d, 201 P.3d 545 (Colo. 2009). The focus of the analysis in

Martinez was whether the victim “was so heavily intoxicated that

she was incapable of apprising the nature of her conduct, and,

thus, she could not and did not consent to have sex” with the

defendant. Martinez, ¶¶ 5, 38.

¶ 75 The division concluded that the victim impact testimony was

not “relevant to any material fact,” such as the defendant’s state of

30
mind or why the victim could not remember certain events from the

night. Id. at ¶ 40. “[T]he evidence did not shed light on why the

victim could not remember anything between 9:00 p.m., when she

was still at the bar, and when she found herself lying on the ground

at a light-rail station hours later.” Id. In other words, whether the

victim was depressed or suicidal after the assault did not make it

more likely than not that she was intoxicated at the time of the

incident.

¶ 76 Whitehorn was charged with and convicted of sexual assault

under section 18-3-402(1)(b). But he was also charged with and

convicted of sexual assault under section 18-3-402(1)(a)

(submission against will). At the time of his conviction, section 18-

3-402(1)(a), C.R.S. 2018, stated that a person who knowingly

inflicts sexual intrusion or sexual penetration commits sexual

assault when the person “causes submission of the victim by means

of sufficient consequence reasonably calculated to cause

31
submission against the victim’s will.”2 In other words, the central

focus of this offense is whether the sexual act was against the

victim’s will, meaning she did not consent.

¶ 77 Victim impact testimony is generally irrelevant in the

guilt/innocence phase of a trial because “the effect of a crime on a

[victim or the] victim’s family often has no tendency to prove

whether a particular defendant committed a particular criminal act

against a particular victim.” Martinez, ¶ 33 (quoting Graham, 650

S.E.2d at 645). Thus, admissibility of victim impact evidence turns

on whether the evidence is relevant to determining whether the

defendant committed the charged offense. Id. (citing Schreibvogel,

¶ 22); see also CRE 402 (irrelevant evidence is inadmissible); People

v. Clark, 2015 COA 44, ¶ 17 (“In criminal cases, evidence is relevant

if the evidence makes it more or less probable that a criminal act

occurred, the defendant was the perpetrator, or the defendant acted

with the necessary criminal intent.”). In other words, victim impact

2 Effective July 1, 2022, section 18-3-402(1)(a) was amended to

provide that a person commits sexual assault by knowingly
inflicting sexual intrusion or sexual penetration if “[t]he actor
causes sexual intrusion or sexual penetration knowing the victim
does not consent.” Ch. 41, sec. 1 § 18-3-402, 2022 Colo. Sess.
Laws 214.

32
evidence is admissible only if it “tends to show the context or

circumstances of the crime itself.” Martinez, ¶ 34 (quoting Graham,

650 S.E.2d at 646).

¶ 78 In People v. Haymaker, 716 P.2d 110, 113-14 (Colo. 1986), the

supreme court held that testimony of the victim’s mother that the

victim was fearful and distraught for several months after she was

sexually assaulted was admissible under CRE 803(3) because the

statement went to the victim’s state of mind. The court reasoned

that the testimony was relevant because it went to the victim’s

credibility that she did not consent to the sexual encounter with the

defendant. Haymaker, 716 P.2d at 113; see also People v. Acosta,

2014 COA 82, ¶ 80 (affirming a district court’s admission under

CRE 803(3) of a father’s statement that his daughter, the victim,

said that when she thought of “it” — meaning when she thought of

being sexually assaulted — she was sick to her stomach).

¶ 79 Here, the description that the victims did not feel safe, sobbed,

moved from their homes, were afraid, did not want physical contact,

and stayed in their rooms — especially when the prosecutor

generally asked how the victims felt immediately after or within

days following the incidents — was relevant because it was evidence

33
that “tends to show the context or circumstances of the crime

itself.” People v. Mena, 2025 COA 14, ¶ 21 (quoting Martinez, ¶ 34);

see also State v. Cosey, 873 P.2d 1177, 1182 (Utah Ct. App. 1994)

(“Evidence of a drastic change in the victim’s behavior is relevant

circumstantial evidence that a traumatic experience such as rape

has occurred.”); State v. Dube, 598 A.2d 742, 746 (Me. 1991)

(“Evidence of changes in the victim’s personality and behavior

immediately after the time of the reported assault tends to prove

that something of a traumatic nature had in fact occurred and thus

was clearly relevant . . . .”); Simmons v. State, 504 N.E.2d 575, 581

(Ind. 1987) (testimony that the victim developed a fear of going

outside by herself and stayed at home more often was probative of

the fact that she had been raped).

¶ 80 Unlike in Martinez, the prosecution did not seek to introduce

the victim impact evidence to establish why the victims were

incapable of consenting. See Martinez at ¶¶ 5, 38. Instead, the

prosecutor’s use of the emotional and psychological testimony was

appropriate to rebut Whitehorn’s theory of defense that he had

consensual sex with each of the victims. The prosecutor did not

urge the jury to convict Whitehorn because the victims had

34
suffered. The prosecutor tied the victims’ emotional and

psychological testimony to their lack of consent. Specifically, the

prosecutor said in closing argument and rebuttal, “This is not

simply a regretting of one night. Each one of them, in the moment,

realized they did not consent to this.”

¶ 81 We also reject Whitehorn’s contention that the evidence was

unduly prejudicial under CRE 403. The victims’ emotional and

psychological “responses to the incident and its aftermath were

highly probative of [their] credibility, a central issue” in the case.

Mena, ¶ 27. Any unfair prejudice from the jury sympathizing with

the victims was not likely to substantially outweigh the evidence’s

relevance. Id.; see also People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995) (Because “CRE 403 strongly favors admissibility of relevant

evidence,” we “afford the evidence the maximum probative value”

and “minimum unfair prejudice.”); People v. Brown, 2022 COA 19,

¶ 70 (“Unfair prejudice [in CRE 403] does not mean prejudice that

results from the legitimate probative force of the evidence.”).

¶ 82 Finally, we note that it was in response to defense counsel’s

question about P.D.’s reaction the day after the assault that P.D.

said she felt numb. Defense counsel thus opened the door to the

35
admission of this statement. People v. Lopez, 2024 COA 26, ¶ 5

(holding that the trial court did not err by admitting testimony

because defense counsel opened the door to the testimony by

questioning the officer about the same issue) (cert. granted Dec. 23,

2024). The victims’ testimony about their emotional and

psychological trauma following the sexual assaults was minimal in

comparison to their overall testimony, and it was a minor portion of

the prosecution’s case during a nine-day trial in which more than

twenty-five witnesses testified. See Martinez, ¶ 43 (admission of

victim impact testimony was harmless, in part, because it

constituted a minor portion of the trial).

¶ 83 Thus, under the circumstances of this case, where a defendant

is charged under section 18-3-402(1)(a), and the defendant’s theory

of defense was the victims consented to having sex with him, we

discern the court did not err by admitting testimony of the victims

and friends concerning the impacts the sexual assaults had on the

victims immediately after or in the days following the incidents.

C. Investigating Officer Testimony

¶ 84 Whitehorn contends that the prosecution elicited improper

screening testimony about how the officers referred cases for

36
further investigation because the testimony (1) suggested there was

additional evidence establishing his guilt and (2) revealed the

officers’ personal opinion that he was guilty. Under the

circumstances, we discern no error.

1. Additional Facts

¶ 85 At trial, the prosecution introduced the testimony of four

investigators who met with the victims at the hospital, gathered

information, and took their statements.

¶ 86 Investigator Nicholas Sagan (Sagan), the initial investigator in

L.L.’s case, testified about what he does when investigating

allegations of sexual assault. He said,

We’re trying to find out, first of all, if a crime
actually occurred, does it establish the
elements of the crime of sexual assault. We’re
looking for descriptions of suspects, you know,
trying to locate a crime scene. So we want to
know where it happened and if it happened in
our jurisdiction. And if there is a crime scene
that we need to find, we need to find the crime
scene, lock it down, see if we can locate
evidence at the crime scene. Perhaps get a
warrant for a location, if it occurred inside of a
house, an apartment, a car or something like
that.

37
Sagan continued that he put the information he gathered from L.L.

“in the report that’s submitted to a sexual assault detective for further

investigation.” (Emphasis added.)

¶ 87 Investigator Brian Mudloff (Mudloff), the initial investigator in

T.M.’s case, similarly testified that the purpose of his investigation

is to “[t]o determine if a crime had been committed, where that crime

was committed, when it was committed.” (Emphasis added.)

¶ 88 Investigator Andrew Landon (Landon), the initial investigator

in P.D.’s case, testified that he “conduct[s] an initial interview with

[the victim], ask[s] her what happened that night. Kind of do[es] the

preliminary steps of the investigations. So that the case can be then

sent to our sex crimes division, and they can further investigate it.”

(Emphasis added.)

¶ 89 Finally, Investigator John Nelson (Nelson), the initial

investigator in N.H.’s case, testified,

You just want to get the information right
away. You want to get — while it’s fresh in
their mind you want to get any allegations, you
want to collect evidence, you want to talk —
touch base with another agency, if need be, to
coordinate with them so they’re in coordination
with our sexual assault detectives. Just to
have a nice thorough investigation to find out
the allegations, and if we can outsource

38
anything to them and if we need to do follow-
up investigation by contacting a sex assault
detective or anybody else.

2. Analysis

¶ 90 Whitehorn contends that the investigators’ testimony

describing how they conduct their investigations was improper

because they implied that, through their pretrial screening process,

only guilty parties are charged with crimes. The Attorney General

asserts the investigators’ statements were proper because they

showed the “progress, sequence, and accuracy of the investigation.”

We disagree with Whitehorn for three reasons.

¶ 91 First, although we agree with Whitehorn that screening

testimony that suggests guilt is improper, the investigators’

statements here do not rise to that level. Domingo-Gomez v. People,

125 P.3d 1043, 1052 (Colo. 2005), and People v. Mullins, 104 P.3d

299 (Colo. App. 2004), held that, where probable cause to arrest or

search is not at issue, it is improper to present to the jury evidence

about obtaining an arrest or search warrant. Remarks of “personal

knowledge, combined with the power and prestige inexorably linked

with the [prosecutor’s] office may encourage a juror to rely on the

prosecution’s allegation that unadmitted evidence supports a

39
conviction.” Domingo-Gomez, 125 P.3d at 1052. But the

investigators’ testimony did not present evidence about how

Whitehorn was arrested or how they obtained search warrants.

Rather, the investigators’ statements referred generally to what they

did with the information they gathered from their preliminary

investigations before referring the investigation to other law

enforcement personnel. Thus, we conclude that the investigators’

statements were not admitted for an improper purpose.

¶ 92 Second, People v. Mendenhall, 2015 COA 107M — on which

Whitehorn relies — is distinguishable. In Mendenhall, a division of

this court held that an investigator’s testimony regarding how many

potential cases he received each year was irrelevant and thus

inadmissible. Id. at ¶ 63. Specifically, in that case, the investigator

testified that he received 250 to 500 case referrals per year and

described the process he undertook on each case. Id. at ¶ 55.

Significantly, the investigator testified that not all referrals led to

criminal charges but that about 35 to 50 cases a year were formally

filed. Id. The division reasoned that “[s]uch references to a

‘screening process’ are improper because they hint that additional

evidence supporting guilt exists that is unknown to the jury, and

40
also reveal the personal opinion of the witness as to the guilt of the

defendant.” Id. at ¶ 62. The division concluded that a reference to

how many of the investigators’ cases resulted in formal criminal

charges was irrelevant because it had no rational tendency to make

it more probable that the defendant committed the charged offense.

Id.

¶ 93 None of the investigators in this case testified to the number of

potential cases they investigated or referred for additional

investigation. And none of the investigators suggested that their

referrals for further investigation led to formal charges or

convictions. Landon and Sagan both emphasized that their goals in

their respective cases were to gather information as part of the

“preliminary steps of the investigations” and then to pass their

information along for further investigation by other law enforcement

personnel. And Landon, Mudloff, and Nelson did not testify that

they made any preliminary determinations as to whether

Whitehorn’s conduct constituted sexual assault. We acknowledge

that Sagan’s testimony that he was doing his job by moving the

case forward may have suggested a specific outcome. But his

testimony was not the equivalent of testimony regarding the

41
number of cases he refers for further investigation or that he is

good at his job because his cases result in criminal prosecutions

and convictions.

¶ 94 Third and finally, the investigators’ descriptions of their

investigations, the collection of evidence, and how they forwarded

information to detectives for further investigation were relevant to

establish the credibility and thoroughness of their investigations

into the sexual assaults. Because the sexual assaults were not a

single event but spanned more than a year and involved

unconnected victims and different investigators, the reliability of the

investigations was relevant. See People v. Marks, 2015 COA 173,

¶ 34 (evidence may be independently relevant to show that the

police conducted a thorough investigation).

¶ 95 Accordingly, we discern no reversible error.

V. Cumulative Error

¶ 96 We reverse for cumulative error in criminal cases where there

are numerous formal irregularities, but where none individually

warrants reversal. Howard-Walker v. People, 2019 CO 69, ¶ 24;

People v. Roy, 723 P.2d 1345, 1349 (Colo. 1986). But numerous

errors must be committed; merely asserting numerous errors is

42
insufficient. People v. Shannon, 2024 COA 41, ¶ 34. Although we

concluded that the court erred by allowing the prosecutor to engage

in misconduct, we determined that such error was harmless beyond

a reasonable doubt. And because we have discerned no other

errors, Whitehorn’s cumulative error claim fails.

VI. Conclusion

¶ 97 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE MOULTRIE concur.

43