Peo v. Church

24CA0971 Peo v Church 01-22-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0971
Mesa County District Court No. 15CR114
Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry D. Church,

Defendant-Appellant.

ORDER AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE YUN
Grove and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 22, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Larry D. Church, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion. We affirm and

remand the case for correction of the mittimus.

I. Background

¶2 Based on allegations involving nine victims (S.Y., S.R., J.D.,

J.N., J.M.N., K.K., C.C., A.D., and C.D.), a jury convicted Church of

twenty counts: one count of sexual assault; one count of unlawful

sexual contact; five counts of sexual assault on a child; two counts

of sexual assault on a child — pattern of abuse; six counts of sexual

assault on a child by one in a position of trust; two counts of sexual

assault on a child by one in a position of trust — pattern of abuse;

one count of incest; one count of aggravated incest; and one count

of invasion of privacy for sexual gratification.

¶3 The trial court sentenced Church to a cumulative

indeterminate term of ninety years to life in the custody of the

Department of Corrections (DOC).

¶4 On direct appeal, a division of this court vacated one of the

sexual assault on a child convictions and otherwise affirmed the

judgment. People v. Church, (Colo. App. No. 16CA2189, June 13,

2019) (not published pursuant to C.A.R. 35(e)). The mandate

1
issued on March 31, 2020. Because this conviction was vacated,

Church’s cumulative DOC sentence was reduced on remand to

eighty-four years to life.

¶5 In 2021, Church timely filed a pro se motion for a

proportionality review of his sentence and requested the

appointment of counsel. Almost two years later, postconviction

counsel filed a supplemental Crim. P. 35(c) motion, asserting

multiple ineffective assistance of trial counsel claims and again

requesting a proportionality review of Church’s sentence.

¶6 The postconviction court denied Church’s motion without a

hearing.

II. Discussion

¶7 Church contends that the postconviction court erroneously

denied his ineffective assistance of counsel claims alleging that

counsel (1) failed to object to testimony that he was incarcerated;

(2) failed to protect his right to a public trial; and (3) pressured him

into a decision not to testify. Church has abandoned the remaining

claims raised in his postconviction motion by not pursuing them on

appeal. See People v. Hunsaker, 2020 COA 48, ¶ 10, aff’d, 2021 CO

83.

2
A. Standard of Review

¶8 We review de novo the denial of a Crim. P. 35(c) motion

without a hearing. People v. Cali, 2020 CO 20, ¶ 14. “We may

affirm the postconviction court’s ruling on any ground supported by

the record, whether or not the postconviction court relied on or

considered that ground.” People v. Cooper, 2023 COA 113, ¶ 7.

¶9 In a Crim. P. 35(c) proceeding, a judgment of conviction is

presumed valid, and the defendant bears the burden of proving an

entitlement to postconviction relief. People v. Corson, 2016 CO 33,

¶ 25. To obtain a hearing on a postconviction motion, the

defendant must assert specific facts that, if true, would provide a

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

1988).

¶ 10 A Crim. P. 35(c) motion may be denied without a hearing when

“the motion and the files and record of the case show to the

satisfaction of the court that the defendant is not entitled to relief.”

Crim. P. 35(c)(3)(IV). This standard is satisfied if (1) the allegations

are bare and conclusory; (2) the allegations, even if true, do not

warrant relief; or (3) the record directly refutes the defendant’s

claims. People v. Duran, 2025 COA 34, ¶ 15.

3
B. Ineffective Assistance of Counsel Law

¶ 11 A criminal defendant is constitutionally entitled to effective

assistance of counsel. Ardolino v. People, 69 P.3d 73, 76 (Colo.

2003). To succeed on an ineffective assistance claim, the defendant

must establish that (1) counsel’s performance was deficient,

meaning it fell below an objective standard of reasonableness; and

(2) counsel’s deficient performance prejudiced the defendant,

meaning that a reasonable probability exists that, but for counsel’s

deficient performance, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984);

Dunlap v. People, 173 P.3d 1054, 1062-63 (Colo. 2007). A

postconviction court may reject an ineffective assistance claim if the

defendant failed to demonstrate either deficient performance or

prejudice. See People v. Aguilar, 2012 COA 181, ¶ 9.

C. Failure to Object to Testimony that Church Was Incarcerated

¶ 12 In his motion, Church asserted that there were “multiple

direct references by several witnesses” to his incarceration. He

cited testimony from four witnesses on the sixth day of trial:1

1 In his opening brief, Church attempts to bolster the allegations for

this claim by presenting additional testimony mentioning his

4
1) A patrol sergeant testified regarding Church’s arrest

warrant, the circumstances surrounding his arrest, and

his transport to and intake at the jail.

2) One of Church’s stepdaughters testified that Church

shaved his head “[o]nce he was incarcerated” and that

she had told her daughter that “[g]randpa is gone right

now and that he is sick.”

3) One of Church’s daughters testified that she learned

about the allegations against him from her son who told

her that her “dad had got arrested.”

4) C.D. testified that she had informed her mother about

the sexual contact when Church “was in prison.”

¶ 13 Church argued that counsel performed deficiently by not

objecting to this testimony and that the failure to object prejudiced

him because it undermined his presumption of innocence.

incarceration and arguing that the postconviction court should
have considered these instances as well. But we do not consider a
defendant’s attempts to use his appellate brief to “fortify . . . issues
inadequately raised or supported” by the Crim. P. 35(c) motion.
People v. Rodriguez, 914 P.2d 230, 251 (Colo. 1996).

5
¶ 14 The postconviction court denied this claim because Church

focused exclusively on testimony that was largely “fleeting and

relatively vague” (with the exception of the sergeant’s testimony)

and that occurred on a single day of the eight-day trial. The court

also found the claim was conclusory and speculative because

Church failed to sufficiently allege prejudice.

¶ 15 Comments about a defendant’s custodial status are generally

improper. People v. James, 40 P.3d 36, 41 (Colo. App. 2001),

overruled in part on other grounds by McDonald v. People, 2021 CO

64. But “[t]he mere reference to an accused’s incarceration is not

necessarily so prejudicial as to require a new trial,” and “[t]he

circumstances of each case must be reviewed to determine

prejudice to the defendant.” People v. Griffin, 985 P.2d 15, 21 (Colo.

App. 1998). Substantial evidence of a defendant’s guilt means a

jury is less likely to reach a guilty verdict based on an

impermissible reference to the defendant’s criminality. People v.

Everett, 250 P.3d 649, 662 (Colo. App. 2010).

¶ 16 We need not address the performance prong of Strickland

because Church cannot establish prejudice given the substantial

evidence of his guilt. See id.; Aguilar, ¶ 9. The jury heard

6
testimony from all nine victims regarding the allegations against

him:

• Seven of the victims testified that Church touched their

vaginas (S.Y., C.C., K.K., A.D., J.N., J.M.N., and C.D.).

• S.Y. testified that he also digitally penetrated her vagina

and licked her anus.

• J.M.N. testified that he also touched her chest, broke into

the bathroom while she was showering, digitally

penetrated her vagina, and had sexual intercourse with

her.

¶ 17 In addition, nine witnesses testified that certain victims had

disclosed some of Church’s behaviors to them before trial:

• S.Y.’s boyfriend testified that S.Y. told him she woke up

to Church “playing with her vagina.”

• J.D. testified that S.Y. told her S.Y. woke up with her

pants down, and Church was “doing things to her.”

• C.C. testified that K.K. told her Church had “touched

[K.K.] on her private”; J.M.N. told her Church had

touched J.M.N.’s vagina and broken into the bathroom

7
while J.M.N. was showering; and S.R. told her Church

had touched S.R.’s vagina.

• C.C.’s mother testified that (1) J.D. told her S.Y. had

woken up to Church “touching her,” and (2) C.C. told her

Church had been touching C.C. for years.

• K.K.’s mother testified that K.K. told her Church had

touched K.K.

• A.D.’s grandmother testified that A.D. told her Church

had touched A.D.

• J.N.’s mother testified that J.N. told her Church had

touched J.N. on her “crotch” or “private area.”

• J.M.N.’s stepmother testified that J.M.N. told her Church

would come into the bathroom when J.M.N. was

showering.

¶ 18 Further, the jury viewed forensic interviews with C.C., J.M.N.,

K.K., A.D., S.R., J.N., and C.D. during the testimony of the

investigator and forensic interviewer. Despite some discrepancies,

the victims’ interview statements were largely consistent with their

trial testimony. And although S.R. declined to testify about the

allegations against Church in detail, in her forensic interview she

8
said that he touched her “private part” with his hand and that she

disclosed this to C.C.

¶ 19 Moreover, by the time the witnesses mentioned Church’s

custodial status, the jury already knew Church had been arrested

in this case. C.C. and J.M.N. had previously testified about Church

being arrested or in jail, including in response to defense counsel’s

questions on cross- and recross-examination. See Griffin, 985 P.2d

at 21 (concluding that the jury learning the defendant was “in

detention” did not warrant a mistrial in part because “the jury was

already aware that defendant had at some point been arrested for

the crimes for which he was on trial”).

¶ 20 Furthermore, the jury acquitted Church of four out of twenty-

four counts involving J.D., C.D., and J.M.N. (incest, unlawful

sexual contact, sexual assault on a child, and invasion of privacy

for sexual gratification). This demonstrates that testimony

regarding his incarceration did not substantially influence the

verdict. See People v. Compos, 2019 COA 177, ¶ 39 (“The verdict of

acquittal on some counts but not others indicates that the jury was

able to separate the facts and law applicable to each charge and it

9
did not blindly convict based on prejudicial testimony.”), aff’d in

part and vacated in part, 2021 CO 19.

¶ 21 Under these circumstances, we conclude the references to

Church’s arrest or incarceration were not so prejudicial that there

is a reasonable probability that the jury may have acquitted him

had it not heard those portions of the witnesses’ answers. See

Everett, 250 P.3d at 662-63. Therefore, counsel’s failure to object to

the testimony did not prejudice Church.

¶ 22 For these reasons, we discern no error in the denial of this

claim without a hearing.

D. Failure to Protect Church’s Right to a Public Trial

¶ 23 S.R. appeared at trial pursuant to the prosecution’s subpoena.

The prosecutor informed the trial court that S.R. did not want to

testify. The court questioned S.R., who said she did not want to

testify because she did not “feel comfortable talking about it.” The

court advised S.R. that she was required to testify under the

subpoena. The court and prosecutor then engaged in the following

colloquy:

[PROSECUTOR]: Just for the record, I did ask
people in the gallery to leave the courtroom at
S.R.’s request. I informed them that they were

10
not required to do that, but I would appreciate
it if they would. And, they all left voluntarily.

THE COURT: Okay.

[PROSECUTOR]: [The] courtroom is still open
and unlocked.

THE COURT: Yeah, it was. Did you ask them
that when S.R. is testifying that they not come
back in?

[PROSECUTOR]: I did, Your Honor.

THE COURT: Okay. All right. And, did you
explain to them that it is their right to stay,
but they have voluntarily left?

[PROSECUTOR]: I did, Your Honor. I informed
them all that . . . they did not have to leave,
but that I would appreciate it that [sic] the
victim had requested that there not be people
in here. They all left voluntarily.

Defense counsel did not object.

¶ 24 In the Crim. P. 35(c) motion, Church asserted that trial

counsel was ineffective for failing to protect his public trial right by

objecting to the prosecutor’s request that people in the gallery leave

voluntarily. He argued he was prejudiced because the violation of a

defendant’s public trial right is “arguably structural error” and

would have resulted in a new trial.

11
¶ 25 The postconviction court framed the issue as a claim that

counsel was ineffective for failing “to object to an alleged courtroom

closure.” It denied the claim “because there was no courtroom

closure that trial counsel could have objected to” since the people in

the gallery left voluntarily and the courtroom remained open and

unlocked.

¶ 26 On appeal, Church contends the postconviction court

misconstrued the legal issue he presented. He admits that

“[s]trictly speaking, the trial court judge did not ‘close’ the

courtroom in the manner provided for in Waller v. Georgia,

[467 U.S. 39 (1984)].” See id. at 42-49 (holding that the defendant’s

right to a public trial was violated when “the court ordered the

suppression hearing closed to all persons other than witnesses,

court personnel, the parties, and the lawyers”). Church also

concedes that “the postconviction [court] was correct in stating that

there was no courtroom clos[ur]e to which trial counsel could have

objected.” But he claims this is “immaterial” because the issue was

not whether the trial court conducted a courtroom closure but

(a) whether the prosecutor interfered with
Church’s constitutional right to a public trial
by “inviting” the spectators to leave for part of

12
the trial, and (b) whether trial counsel was
ineffective in failing to object to what the
prosecutor was doing thereby alerting the
court and asking the court to intercede.

He further argues that a hearing was required on this claim

because what the prosecutor said to the gallery and how spectators

interpreted it are factual issues not contained in the record.

¶ 27 Whether the prosecutor interfered with Church’s right to a

public trial was not raised in Church’s Crim. P. 35(c) motion. This

claim is therefore not properly before us. See Cali, ¶ 34 (we do not

consider issues not raised before the lower court in a postconviction

motion). Moreover, the issue is successive because it could have

been raised on direct appeal. See Crim. P. 35(c)(3)(VII) (a court

must deny any claims as successive that could have been raised in

a prior appeal or postconviction proceeding).

¶ 28 And we reject Church’s claim that counsel was ineffective for

failing to object to the prosecutor’s actions, thereby denying him his

right to a public trial. A defendant’s right to a public trial under the

Sixth Amendment may be violated if “state action” denies the public

or one or more individuals the reasonable opportunity to observe

proceedings contemporaneously in the physical courtroom. See

13
Rios v. People, 2025 CO 46, ¶ 33. This is known as a “total” or

“partial” courtroom closure. Id. A court must apply the four-part

test outlined in Waller to ensure that a closure does not violate the

defendant’s public trial right. Id. at ¶ 24. But Church concedes

there was no courtroom closure here. And he does not explain how,

given that there was no closure, an objection to the prosecutor’s

actions would have changed the outcome of the trial. Nor does he

explain how the prosecutor’s actions implicated his public trial right

absent a closure. Therefore, Church has failed to establish

prejudice. See Weaver v. Massachusetts, 582 U.S. 286, 300-01

(2017) (“[W]hen a defendant raises a public-trial violation via an

ineffective-assistance-of-counsel claim, Strickland prejudice is not

shown automatically. Instead, the burden is on the defendant to

show either a reasonable probability of a different outcome in his or

her case or, as the Court has assumed for these purposes, to show

that the particular public-trial violation was so serious as to render

his or her trial fundamentally unfair.” (citation omitted)).

¶ 29 Because Church has failed to demonstrate prejudice, we need

not address the performance prong of Strickland. See Aguilar, ¶ 9.

14
¶ 30 For these reasons, we discern no error in the denial of this

claim without a hearing.

E. Pressure Not to Testify

¶ 31 During the trial court’s advisement under People v. Curtis,

681 P.2d 504 (Colo. 1984), Church acknowledged that he

understood his right to testify. He told the trial court that no one

promised him anything in exchange for his decision and affirmed

that no one had used “deadly force, threat, pressure, or undue

influence to get [him] to come to that decision.” Church then asked

the court for additional time to speak with his attorneys. The court

took a twenty-seven-minute recess to allow Church to consult with

counsel. Upon resuming the Curtis advisement, Church told the

court he would not testify. The court confirmed that the decision

was Church’s alone; no one forced, threatened, or pressured him to

make that decision; and no one promised him anything in exchange

for his decision. The court also advised Church that he could

change his mind at any time before the defense rested. The court

then found he had made a knowing, voluntary, and intelligent

decision not to testify.

15
¶ 32 In his Crim. P. 35(c) motion, Church asserted that he had

“limited communication with counsel concerning his right to testify”

and that he “felt intense pressure from counsel” not to testify. He

argued that, “[b]ut for counsel’s pressure, which overcame [his]

exercise of his voluntary decision-making processes, [he] would

have testified on his own behalf.”

¶ 33 The postconviction court denied this claim because Church’s

argument was conclusory and he had received a proper Curtis

advisement.

¶ 34 On appeal, Church argues the postconviction court erred by

denying this claim without a hearing “[b]ecause the existing record

is devoid of what was said during the 27-minute meeting between

Church and his attorneys.” Though the record does not contain

evidence of what was said during that conversation, Church was

still required to allege “specific facts” in his motion to support his

claim. See Moore v. People, 2014 CO 8, ¶ 23. But beyond asserting

that he would have testified if he had better communication with

counsel and had not been “pressured” by counsel not to testify, he

did not allege any facts addressing either prong of the Strickland

test. For example, he never explained what additional

16
communication he needed or why the twenty-seven-minute recess

the court granted him to consult with his attorneys was

insufficient.2 Nor did he allege how counsel pressured him not to

testify. Indeed, his motion is devoid of any facts establishing that

trial counsel’s actions fell below an objective standard of

reasonableness. See Strickland, 466 U.S. at 687-88. Therefore, we

conclude that Church did not adequately allege deficient

performance in counsel’s advice not to testify. See People v. Sparks,

914 P.2d 544, 548 (Colo. App. 1996) (concluding that advising the

defendant not to testify did not constitute ineffective assistance of

counsel); People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007) (a

postconviction court may reject an ineffective assistance claim if it

is bare and conclusory in nature, or lacks supporting factual

allegations).

¶ 35 While admitting this claim was “spar[s]e[,] consisting of only

one paragraph and comprising only 59 words,” Church nonetheless

2 To the extent Church attempts to provide these explanations in

his reply brief, we will not consider them. See People v. Owens,
2024 CO 10, ¶ 90 (we do not address arguments made for the first
time in a reply brief); see also People v. Huggins, 2019 COA 116,
¶ 17 (we will not consider allegations not raised in a postconviction
motion and therefore not ruled on by the postconviction court).

17
contends on appeal that he should be afforded a hearing on this

issue in the interest of judicial economy. He asserts that, if we

affirm the denial of this claim on the ground that the allegations

were insufficient, he will file another motion arguing that

postconviction counsel was ineffective in drafting this claim. And

he argues that requiring him to raise the issue in a second

postconviction motion would be a waste of judicial resources.

¶ 36 While we recognize that we have discretion to review

unpreserved constitutional issues “in rare cases” when “doing so

would clearly further judicial economy,” People v. Huggins, 2019

COA 116, ¶ 19, those issues still require supporting factual

allegations, see Delgado, ¶ 8. But Church failed to provide these in

either his Crim. P. 35(c) motion or his appellate briefs. Instead, he

asserts on appeal that he would provide those allegations in

“specific detail” in a future motion asserting ineffective assistance of

postconviction counsel. That is not sufficient. Moreover, the

problem is not that Church is raising this issue for the first time on

appeal; the problem is that he failed to support his claim with

specific factual allegations. And Church has provided no authority

for the premise that we may reverse a postconviction court’s order

18
and remand for a hearing on a claim that lacks any supporting

factual allegations simply in the interests of judicial economy.

¶ 37 In any event, Church’s testimony during the Curtis advisement

contradicts his claim that counsel pressured him not to testify.

Indeed, Church acknowledged he understood his right, said he had

decided not to testify, and confirmed his decision was not the result

of force, threats, pressure, or undue influence. And Church alleged

no facts in his motion that would undermine the reliability of this

acknowledgment.

¶ 38 Because Church’s claim lacked supporting factual allegations

and was contradicted by the record, we conclude the postconviction

court did not err by denying the claim without a hearing. See

Delgado, ¶ 8.

III. Mittimus

¶ 39 Although not raised by the parties, we note the mittimus

incorrectly reflects that Church pleaded guilty to the crimes.

Instead, he was found guilty after a jury trial. Because a court may

correct a clerical error on a mittimus at any time, see Crim. P. 36,

we remand the case for the postconviction court to correct the

mittimus to reflect that Church was found guilty after a jury trial.

19
IV. Disposition

¶ 40 The order is affirmed, and the case is remanded for the

postconviction court to amend the mittimus to reflect that Church

was found guilty after a jury trial.

JUDGE GROVE and JUDGE SCHOCK concur.

20