31. People v. Salas

COLORADO COURT OF APPEALS 2017COA63

Court of Appeals No. 14CA1331
City and County of Denver District Court No. 13CR1748
Honorable Martin F. Egelhoff, Judge
Honorable John W. Madden, IV, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leroy Salas,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Graham and Navarro, JJ., concur

Announced May 18, 2017

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Katherine Brien, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Leroy Salas, appeals his judgment of conviction

and sentence entered on jury verdicts finding him guilty of sexual

assault on a child by one in a position of trust and sexual assault

on a child, pattern of abuse. Salas also appeals the trial court’s

order finding him to be a sexually violent predator (SVP). We affirm

in part, vacate in part, and remand for findings.

I. Background

¶2 The victim was nine years old when her mother began dating

Salas in August 2011. At the time, the victim lived with her mother

in Loveland. In September 2011, the three moved in with the

victim’s grandmother, at her apartment in Denver. In November

2011, Salas and mother moved into a separate apartment together

in Denver, but the victim continued to live with grandmother. The

victim occasionally visited her mother’s apartment.

¶3 At trial, the victim testified that, during visits, she would

sometimes be alone with Salas in the apartment while mother

worked. She testified that on occasion, Salas told the victim to lie

down on his bed and touched her “stomach and legs” and her

“private parts” over her clothing. The prosecutor asked the victim

to indicate on a diagram where Salas touched her, and she

1
indicated the buttocks. On another occasion, Salas made the

victim touch his penis. The victim did not tell anyone about these

incidents because Salas told her not to, and she was scared.

¶4 In early 2012, mother and Salas broke up, and mother moved

to California; the victim followed once she finished school in

Denver. There, the victim told a family friend about the assaults.

The friend relayed the information to mother and mother called the

police. The victim spoke about the incidents with a sheriff and a

counselor in California.

¶5 In November 2012, the victim moved back in with

grandmother in Denver. The victim discussed the assaults with a

forensic interviewer at the Denver Children’s Advocacy Center.

¶6 At trial, the theory of defense was that the victim fabricated

the assaults in order to gain attention, and that Salas could not

have sexually assaulted her because he was never alone with her

for a sufficient period.

II. Mistrial

¶7 Salas first contends that the trial court abused its discretion

and violated his rights to due process, a fair trial, and an impartial

jury by denying his motion for a mistrial after grandmother testified

2
that Salas had “some type of court proceedings on an alcohol

problem,” a nonresponsive answer to a question which, he says,

impermissibly referred to prior criminality. We disagree.

¶8 Grandmother testified that mother and Salas lived with her for

a few months before they moved into their own apartment. The

court asked grandmother a question posed by the jury: “Was Salas

employed during the two- to three-month period and if so how

many hours per week?” Grandmother replied that he was

employed. Defense counsel questioned grandmother further on

whether Salas was employed full-time, to which grandmother

responded, “He had — no — how can I say this except to be honest.

There was some type of court proceedings on an alcohol problem.”

Defense counsel moved for a mistrial. The trial court denied the

motion and instructed the jury to disregard grandmother’s

response.

A. Standard of Review

¶9 A trial court has broad discretion to grant or deny a mistrial,

and its decision will not be disturbed on appeal absent an abuse of

discretion and prejudice to the defendant. People v. Santana, 255

P.3d 1126 (Colo. 2011); People v. Abbott, 690 P.2d 1263, 1269

3
(Colo. 1984). A court abuses its discretion only when inadmissible

evidence is likely to have substantially prejudiced the jurors despite

the use of any alternative remedies. People v. Lahr, 2013 COA 57,

¶ 23, 316 P.3d 74, 79. A mistrial is “the most drastic of remedies,”

and is “only warranted where the prejudice to the accused is too

substantial to be remedied by other means.” Abbott, 690 P.2d at

1269.

¶ 10 Relying on Santana and People v. Chastain, 733 P.2d 1206

(Colo. 1987), Salas asserts that he has presented a constitutional

claim because grandmother’s statement violated his rights to due

process and a fair trial by an impartial jury. However, neither of

these cases involved a motion for a mistrial based on a reference to

prior criminality. Further, an erroneous reference to a defendant’s

prior criminality is not an error of constitutional dimension, and we

therefore review such claims for nonconstitutional harmless error.

See, e.g., People v. Pernell, 2014 COA 157, ¶¶ 26, 42-52, __ P.3d __,

__, __; Lahr, ¶ 23, 316 P.3d at 79; see also People v. Yusem, 210

P.3d 458, 469 n.16 (Colo. 2009) (erroneous admission of prior bad

act evidence is not error of constitutional dimension). Therefore, we

review Salas’ claim for nonconstitutional harmless error.

4
B. Applicable Law

¶ 11 Salas relies on Goldsberry to assert that “[i]n a criminal trial to

a jury, evidence of a defendant’s criminal activity, which is

unrelated to the offense charged, is inadmissible.” People v.

Goldsberry, 181 Colo. 406, 409, 509 P.2d 801, 803 (1973).

However, Goldsberry also notes that “exceptions to this rule are

limited to well defined and special situations where proof of similar

offenses will show the defendant’s intent, motive, plan, scheme, or

design with respect to the crime charged.” Id. The supreme court

in Goldsberry held that in such situations, the court is required to

give instructions limiting the purpose of such evidence, id., and that

when reference is made in the presence of the jury to a defendant’s

unrelated criminal activity, “a mistrial is normally required,” id.

¶ 12 However, subsequent cases have limited the holding in

Goldsberry: “[A]n ambiguous reference to evidence of a defendant’s

criminality does not necessitate a new trial.” Lahr, ¶ 24, 316 P.3d

at 79 (citations omitted); see also People v. Vigil, 718 P.2d 496,

505-06 (Colo. 1986) (police officer’s reference to contraband found

in defendant’s home did not warrant mistrial). In addition, fleeting

references to a defendant’s alleged criminal history have even less

5
prejudicial impact. Lahr, ¶ 24, 316 P.3d at 79-80; see also Abbott,

690 P.2d at 1269 (A mistrial was unwarranted in part because “the

reference to past criminal acts was a single unelicited remark.”).

The circumstances of each case must be reviewed to determine

whether the defendant was prejudiced. Abbott, 690 P.2d at 1269;

People v. Moore, 226 P.3d 1076, 1087-88 (Colo. App. 2009).

¶ 13 Further, Goldsberry was announced prior to the promulgation

of the Colorado Rules of Evidence. While the rules state that

evidence of other crimes, wrongs, or acts is not admissible to prove

the defendant’s character in order to show that he or she acted in

conformity therewith, see CRE 404(b); Kaufman v. People, 202 P.3d

542, 552 (Colo. 2009), such evidence can be admissible for the

same purposes and under the same conditions enumerated in

Goldsberry, see Kaufman, 202 P.3d at 552 (citing CRE 404(b));

People v. Beasley, 43 Colo. App. 488, 492, 608 P.2d 835, 838 (1979)

(citing Goldsberry and CRE 404(b)).

¶ 14 Generally, the erroneous admission of evidence is remedied by

instructing the jurors to disregard it. Vigil v. People, 731 P.2d 713,

716 (Colo. 1987); Lahr, ¶ 25, 316 P.3d at 80. Absent evidence to

the contrary, we presume jurors follow such an instruction. Lahr,

6
¶ 25, 316 P.3d at 80. The supreme court noted in Goldsberry that

where the prosecution has intentionally elicited the prejudicial

information, evidence of a defendant’s guilt is “thin,” and if the

proof of at least one of the essential elements of the crime charged

is entirely circumstantial, a trial court’s cautionary instruction will

not suffice. Goldsberry, 181 Colo. at 409, 509 P.2d at 803.

However, the supreme court has since clarified that “[t]he

circumstances are . . . rare where we . . . will depart from the

presumption that a jury follows a court’s curative instructions.”

Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091 (Colo. 2011); see

also People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001)

(acknowledging Goldsberry but concluding that court’s instruction

was sufficient to cure prejudice); People v. Gillispie, 767 P.2d 778,

780 (Colo. App. 1988) (“[A]n instruction is inadequate only when

evidence is so prejudicial that, but for its exposure, the jury might

not have found the defendant guilty.”).

C. Analysis

¶ 15 Here, grandmother’s comment regarding “court proceedings on

an alcohol problem” referred ambiguously to possible past

criminality. It was a single, fleeting, nonresponsive comment. It

7
did not necessarily reference any criminal behavior on the part of

Salas, since “court proceedings” on an “alcohol problem” could also

refer to civil and administrative proceedings involving alcohol

consumption. See, e.g., § 27-81-112, C.R.S. 2016 (governing

involuntary civil commitment of alcoholics); § 42-2-126, C.R.S.

2016 (governing license revocation proceedings based on an

administrative determination).

¶ 16 The possibility that a reasonable juror inferred Salas’ guilt

based on grandmother’s reference to an “alcohol problem” is highly

attenuated. If such a comment had an impact on the jury, it was

not “so prejudicial that, but for its exposure, the jury might not

have found against the defendant.” People v. McNeely, 68 P.3d 540,

542 (Colo. App. 2002) (citation omitted); see also People v. Ned, 923

P.2d 271, 275 (Colo. App. 1996) (“Speculation of prejudice is

insufficient to warrant reversal of a trial court’s denial of a motion

for mistrial.”).

¶ 17 Further, the trial court immediately instructed the jurors to

disregard grandmother’s comment, and, absent exceptional

circumstances where the evidence against Salas is thin, we

presume that the jury followed such an instruction. This is

8
particularly the case here because, unlike in Goldsberry, the

remark was not intentionally elicited to prejudice Salas. See

Goldsberry, 181 Colo. at 409, 509 P.2d at 803. Rather, the counsel

for the defense elicited this information when she pressed

grandmother further on whether Salas was employed full time.

¶ 18 Because grandmother’s remark was fleeting, minimally

prejudicial, and immediately followed by a curative instruction, we

conclude that the trial court did not abuse its discretion when it

denied Salas’ motion for a mistrial.

III. Grandmother’s Interview Video

¶ 19 Salas next contends that the district court abused its

discretion when it denied his request to play a videotaped interview

of grandmother after concluding that she had not denied anything

that would be subject to impeachment through a collateral source.

We disagree.

¶ 20 After the victim told a family friend in California about Salas’

actions in August 2012, a San Bernardino sheriff contacted

grandmother to talk about the sexual assault allegations.

Grandmother told the sheriff that she knew of “one or two —

possibly two occasions” that Salas had been alone with the victim.

9
Grandmother told the sheriff that the victim lived with her “99

percent of the time.”

¶ 21 In October 2013, Detective Nash Gurule of the Denver Police

Department interviewed grandmother. During the recorded

interview, grandmother relayed information about the sexual

assaults that she had learned from the victim, specifically: (1)

“[mother] told me that . . . Salas would have [the victim] grab him”;

(2) “according to [mother], [the victim] said she never let him touch

her uh, without any clothes on”; and (3) mother told grandmother

that the victim had touched Salas while he did not have clothes on,

but that the victim had never taken her clothes off.

¶ 22 Detective Gurule also asked grandmother how long Salas and

mother had lived together in their Denver apartment. Grandmother

explained that they lived there “maybe November of 2011 into like

maybe January, February 2012. Right around that time . . . I know

Christmas for sure of 2011. . . .” The detective then asked her,

“[D]uring that time, how long do you think you had [the victim] at

your house?” Grandmother misunderstood and replied, “[H]ow long

did [the victim] stay there? Maybe, maybe a half a dozen times. . .

.” The detective asked: “Stayed with you or stayed there?”

10
Grandmother clarified and reiterated that the victim stayed at

mother’s and Salas’ apartment “[m]aybe a half a dozen times” but

did not identify any specific dates, nor did the detective ask for any.

¶ 23 At trial, grandmother testified that Salas, mother, and the

victim lived with her in Denver from about September to November

2011 until Salas and mother moved into their own apartment. The

victim continued to live with grandmother because she was

attending a school near grandmother’s house, but would

occasionally visit and spend the night with mother and Salas on the

weekends. Grandmother testified that one such occasion was

during Christmas vacation. Grandmother testified that “once or

twice Salas came himself to take [the victim] over there because

[mother] was working and he would be watching her. The other

times [mother] would come or maybe [mother] and Salas would

come. It is a short period of time just to pinpoint those days.”

¶ 24 During cross-examination, defense counsel asked

grandmother if she had spoken to the San Bernardino sheriff,

mother, and Detective Gurule about the allegations, and

grandmother answered affirmatively. Defense counsel asked if she

had testified previously, and grandmother again affirmed. Defense

11
counsel also asked if she had spoken with mother about the

allegations on “numerous occasions,” and grandmother denied that

she had spoken in detail with mother. Defense counsel then

confronted grandmother with the statements she had made to

Detective Gurule in which she relayed information she had learned

from mother. Grandmother admitted to making each statement.

Defense counsel then asked grandmother, “And nowhere in this

interview do you say anything about [the victim] spending time with

[mother] and Salas over Christmas vacation?” Grandmother agreed

and explained that Detective Gurule did not ask her that question.

Defense counsel later asked grandmother if she did not mention

Christmas to the detective because of a lack of recollection.

Grandmother reiterated that she did not mention it because she

was “never asked the question.”

¶ 25 During redirect examination, the prosecutor asked

grandmother if she had spoken to mother “in detail” about the

sexual assaults, and grandmother denied doing so.

¶ 26 During recross-examination, defense counsel again questioned

grandmother about the “details” she had learned from mother.

Grandmother reiterated that she had heard things from mother, but

12
had no knowledge of certain details. Defense counsel then

confronted grandmother again with her statements to Detective

Gurule in which she relayed information she had learned from

mother. Grandmother again agreed that she had made the

statements. Counsel asked grandmother if those were “details.”

Grandmother agreed that they were.

¶ 27 The next day, defense counsel sought to admit and publish the

interview between grandmother and Detective Gurule. The

prosecutor objected, arguing that the video was not admissible

under section 16-10-201, C.R.S. 2016, because grandmother had

not denied at trial that she had made any inconsistent statements

in the interview. Defense counsel argued that (1) grandmother’s

testimony was “all over the board”; (2) she had been inconsistent

regarding whether she had given details to the detective; and (3) she

had made it sound as though she did not give certain evidence to

the detective because he had not asked her for it, while “the whole

flavor of that interview” demonstrated that the detective did not ask

many questions because grandmother was extremely talkative and

forthcoming, even volunteering information that the detective had

13
not asked about. Defense counsel also argued that any irrelevant

and prejudicial information on the video could easily be cut.

¶ 28 The court denied defense counsel’s request to play the

videotape, concluding that grandmother had not denied anything

that would be subject to impeachment through the videotape:

Okay. Well, I was taking pretty careful — I
paid pretty close attention to [grandmother’s]
testimony, and I was trying to take some notes
with respect to those areas in which she was
impeached, and she didn’t deny anything. She
didn’t claim lack of memory of anything.
When she was confronted with the transcripts
of things to impeach her, she agreed with what
was in the transcripts. So, I don’t find that
there’s anything more, or I don’t think there’s
anything that she denied which would be
subject to . . . impeachment through the
collateral source or the source of the tape,
which is — so, I just don’t find that, especially
that the evidence is sufficiently impeaching as
to the specific testimony that she gave here in
court. So, I don’t feel this is admissible. So, I
am going to deny the request, or refuse the
evidence.

A. Standard of Review

¶ 29 The People assert that Salas has not properly preserved this

issue for review because defense counsel did not identify whether

his request to admit the video fell under CRE 613 or section

16-10-201. We conclude that even though defense counsel did not

14
cite either the rule or the statute in court, he preserved such claims

for appeal because his arguments for submitting the video into

evidence identified the subject matter of both the rule and the

statute, and the trial prosecutor identified the statute on which

Salas relies on appeal. We conclude that these circumstances were

sufficient to preserve his claim. See People v. Melendez, 102 P.3d

315, 322 (Colo. 2004) (“We do not require that parties use

‘talismanic language’ to preserve particular arguments for appeal,

but the trial court must be presented with an adequate opportunity

to make findings of fact and conclusions of law on any issue before

we will review it.” (quoting People v. Syrie, 101 P.3d 219, 223 n.7

(Colo. 2004))); see also Martinez v. People, 2015 CO 16, ¶ 14, 344

P.3d 862, 868 (“An adequate objection allows the trial court a

meaningful chance to prevent or correct the error and creates a

record for appellate review.” (citing Melendez, 102 P.3d at 322)).

¶ 30 Accordingly, we review the trial court’s decision to exclude the

evidence for an abuse of discretion. People v. Welsh, 80 P.3d 296,

304 (Colo. 2003). However, a trial court’s interpretation of a statute

or rule governing the admissibility of evidence is reviewed de novo.

People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009). A court abuses

15
its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misconstrues the law. People v.

Acosta, 2014 COA 82, ¶ 75, 338 P.3d 472, 485.

¶ 31 A court’s erroneous exclusion of a witness’ prior inconsistent

statements is reviewed for nonconstitutional harmless error. People

v. Komar, 2015 COA 171M, ¶ 55, __ P.3d __, __ (citing Hagos v.

People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119). Reversal is

warranted only where the error “substantially influenced the verdict

or affected the fairness of the trial proceedings.” Id. (citation

omitted).

¶ 32 The People contend that it is unclear which alleged

inconsistencies Salas relies on in his claim of error, arguing that

Salas only broadly contends that grandmother “made statements at

trial that were not consistent with prior statements she made to

Detective Gurule, including statements regarding how often the

victim spent time at her mother and Salas’ apartment.” Salas also

references testimony related to grandmother’s conversation with a

San Bernardino sheriff earlier in the year. To the extent Salas

argues inconsistencies that were never raised in the trial court, we

review them only for plain error. Melendez, 102 P.3d at 322; see

16
also People v. Ujaama, 2012 COA 36, ¶ 37, 302 P.3d 296, 304 (An

issue is unpreserved for review when an objection is made “on

unspecific grounds which would not have alerted the trial court to

the issue of which the defendant now seeks review.”). Plain error

must be both “obvious and substantial,” and must have “so

undermined the fundamental fairness of the trial itself so as to cast

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

People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (citations omitted).

B. Applicable Law

¶ 33 The use of prior inconsistent statements in criminal trials is

expressly governed by both statute and rule. People v. Saiz, 32 P.3d

441, 445 (Colo. 2001); see also Montoya v. People, 740 P.2d 992,

995-96 (Colo. 1987).

CRE 613 comports generally with prior case
law by prohibiting examination of a witness for
impeachment by prior inconsistent statement
until his attention has been called to the time,
place, and circumstances of the prior
statement and by barring the admission of
extrinsic evidence to prove any prior statement
that is conceded by the witness.

Saiz, 32 P.3d at 445; see also Montoya, 740 P.2d at 995-96. In

contrast, section 16-10-201 creates “a new rule of substantive

17
evidence” for criminal cases by “eliminating the hearsay impediment

to using prior inconsistent statements for the purpose of

establishing a fact to which witness’ testimony and prior statement

relate, as long as the witness is still available and his prior

statement relates to a matter within his own knowledge.” Saiz, 32

P.3d at 445; see also Montoya, 740 P.2d at 997-98. The statute

“allows a prior inconsistent statement to be used as substantive

evidence of the fact to which the statement relates,” and it “does not

include the foundation requirement that a witness must have

denied or failed to remember the prior statement before it can be

proved by extrinsic evidence.” Montoya, 740 P.2d at 996. The

statute provides:

(1) Where a witness in a criminal trial has
made a previous statement inconsistent with
his [or her] testimony at the trial, the previous
inconsistent statement may be shown by any
otherwise competent evidence and is
admissible not only for the purpose of
impeaching the testimony of the witness, but
also for the purpose of establishing a fact to
which his [or her] testimony and the
inconsistent statement relate, if:
(a) The witness, while testifying, was given an
opportunity to explain or deny the statement
or the witness is still available to give further
testimony in the trial; and

18
(b) The previous inconsistent statement
purports to relate to a matter within the
witness’s own knowledge.

§ 16-10-201. While section 16-10-201 also relaxes the foundational

requirements for impeachment by prior inconsistent statement in

some respects, CRE 613 does not conflict with the statute and

continues to apply in civil cases and in criminal cases in which the

foundational requirements of the statute are not met. Saiz, 32 P.3d

at 445; see also Montoya, 740 P.2d at 997-98.

¶ 34 In Saiz, the supreme court addressed the admissibility of a

videotaped interview containing prior inconsistent statements under

the statute. It held that the trial court did not abuse its discretion

in excluding a videotape of the defendant’s minor son which

contained inconsistent statements. This was because, even though

the video evidence demonstrated inconsistent statements, “the

defense was in no way limited from introducing extrinsic evidence of

those statements.” Saiz, 32 P.3d at 447. This was particularly so

because the son contradicted himself during trial. Further, the

video was offered solely to impeach the witness; there was no

contention that the video would be any different from the testimony

already offered to impeach the witness. “Without offering the

19
videotape for any purpose other than to impeach [the witness’]

testimony . . . the defendant’s counsel asserted that this additional

extrinsic evidence was admissible simply because it was a videotape

of [the witness’] own words.” Id. The supreme court concluded:

In light of the other evidence already admitted
and the offer of proof before it, the trial court’s
ruling amounted to little more than a
determination that under the circumstances of
this case the defendant was not entitled to
introduce a videotape to show the same
statements that it had already shown by
uncontested testimony.

Id. at 449.

C. Analysis

¶ 35 Both parties concede that the video is not admissible under

CRE 613. Salas did not argue specifically that the video was

admissible under section 16-10-201 at trial, but asserts on appeal

that the district court misapplied section 16-10-201 in excluding

the tape because he was not required to confront grandmother with

her inconsistent testimony in order for it to be admissible.

¶ 36 Here, as in Saiz, the district court did not abuse its discretion

in excluding the videotaped interview of grandmother after defense

20
counsel sufficiently confronted grandmother with her inconsistent

statements and she either explained or conceded them.

¶ 37 The district court denied defense counsel’s request to play the

tendered videotape after concluding that grandmother had not

denied anything that would be subject to impeachment. During

grandmother’s trial testimony, defense counsel presented direct

quotes of her inconsistent statements from her videotaped

interview, and she conceded those inconsistencies. The statements

that she did not concede related to the amount of time that the

victim had spent with her, which she sought to explain. Defense

counsel argued that the videotape was admissible because the

applicable foundational requirements were met, the videotaped

interview demonstrated that grandmother was “talkative,” and the

jurors needed the overall “flavor” of the interview to assess

grandmother’s testimony.

¶ 38 Defense counsel thoroughly impeached grandmother during

cross-examination and, in offering the videotaped interview, did not

assert that anything in it would differ from grandmother’s

cross-examination testimony. See id. at 450. Further, “[t]he jury

was not shielded in any way from [the witness’] apparent

21
contradictions but was able to observe, first hand, the nuances in

questioning that led to his different responses.” Id. Thus, the trial

court did not abuse its discretion in excluding the videotape

because Salas’ offered purpose had already been accomplished by

his cross-examination of grandmother. To the extent there were

any inconsistencies between the interview and grandmother’s trial

testimony, grandmother admitted them. Thus, admission of the

video would have been cumulative. The trial court could have

properly excluded the video on that basis alone. See CRE 403

(“Although relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

cumulative evidence.”); see also Saiz, 32 P.3d at 445-49.

¶ 39 Accordingly, we conclude that the district court did not abuse

its discretion in refusing to admit the videotape.

IV. SVP Designation

¶ 40 Last, Salas contends that the trial court’s determination that

he qualified as an SVP failed to satisfy statutory and due process

requirements because the court never made specific findings of fact

22
in support of its determination as required by section 18-3-414.5(2),

C.R.S. 2016. We agree that the court’s analysis did not satisfy the

statute and related case law.

¶ 41 Prior to Salas’ sentencing, a probation officer completed a

Colorado Sexually Violent Predator Assessment Screening

Instrument (SVPASI), as required by section 18-3-414.5. The

probation officer found that Salas satisfied the criteria for SVP

designation, in part because he promoted a relationship with the

victim primarily for the purpose of sexual victimization. The

SVPASI was provided to the court at sentencing along with a

presentence investigation report (PSI) summarizing the facts and

background of the case. At sentencing, the prosecutor asked “that

the Court find that Salas is a sexually violent predator per the

assessment.” After imposing a sentence, the trial court stated, “Oh,

and also based upon the [SVPASI] report, Salas meets the criteria of

a sexually violent predator.”

A. Review of SVP Designation on Appeal

¶ 42 Initially, the People contend that because an SVP designation

is a civil matter and because Salas did not object to the SVP

designation in the trial court and preserve the issue for appeal, we

23
should not review this claim of error. See Estate of Stevenson v.

Hollywood Bar & Cafe, Inc., 832 P.2d 718, 721 n.5 (Colo. 1992)

(“Arguments never presented to, considered or ruled upon by a trial

court may not be raised for the first time on appeal.”). However, we

disagree.

¶ 43 The People assert that “though the SVP statute is housed in

the criminal code, the designation is met with a civil burden of

proof.” People v. Allen, 2013 CO 44, ¶ 7, 307 P.3d 1102, 1105. Cf.

People v. Daly, 313 P.3d 571 (Colo. App. 2011) (restitution is a civil

judgment independent of a defendant’s conviction). As a result,

they argue, an SVP designation is not part of a criminal proceeding

and it is not a punishment. Therefore, “a trial court’s decision to

designate an offender as an SVP is legally and practically distinct

from its sentencing function.” Allen, ¶ 7, 307 P.3d at 1105; see also

People v. Stead, 66 P.3d 117, 123 (Colo. App. 2002), overruled by

Candelaria v. People on other grounds, 2013 CO 47, 303 P.3d 1202.

However, the Allen court did not suggest that an SVP designation

imposed in a criminal case pursuant to a criminal statute is not

part of a criminal proceeding subject to direct appeal in a criminal

case. It only concluded that appellate courts must defer to a trial

24
court’s factual SVP findings when they are supported by the record

and review de novo the trial court’s legal conclusions regarding

whether an offender should be designated as an SVP. Allen, ¶ 4,

307 P.3d at 1105.

¶ 44 Before Allen, multiple divisions of this court held that when a

defendant fails to object to a lack of specific findings on an SVP

designation, we review for plain error. See, e.g., People v. Mendoza,

313 P.3d 637, 641 n.4 (Colo. App. 2011); People v. Loyas, 259 P.3d

505, 511 (Colo. App. 2010); People v. Buerge, 240 P.3d 363, 369

(Colo. App. 2009). However, since Allen established that an SVP

designation carries a civil burden of proof, no court has addressed

the People’s contention that we may not review an SVP designation

when a defendant has not preserved the issue for appeal.

¶ 45 We conclude that although the SVP designation is not a

criminal punishment, it is only imposed in conjunction with a

criminal conviction and thus should not be separated from the

appeal of criminal trial issues. This is particularly so because an

SVP designation only accompanies a conviction of a sexual offense.

See § 18-3-414.5(2) (When an offender has been convicted of a

sexual offense listed in this section, “the court shall make specific

25
findings of fact and enter an order concerning whether the

defendant is a sexually violent predator” based on the SVPASI.).

¶ 46 Considering the logic above and the holdings of various

divisions of this court prior to the decision in Allen, we reject the

People’s contention that we should not review Salas’ unpreserved

challenge to his SVP designation, and therefore review the merits of

his claim for plain error, following the pre-Allen decisions by

divisions of this court noted above. See, e.g., Mendoza, 313 P.3d at

641 n.4.

B. Standard of Review

¶ 47 A trial court’s SVP designation involves a mixed question of

law and fact. Allen, ¶ 4, 307 P.3d at 1105. We must defer to a trial

court’s factual findings if they are supported by the record, but

review any legal conclusions de novo. Id.

C. Applicable Law

¶ 48 A trial court shall designate an offender an SVP when the

offender: (1) was eighteen years of age or older as of the date of the

offense; (2) was convicted of an enumerated sexual offense; (3)

committed the offense against a victim who was a stranger or was a

person with whom the offender established or promoted a

26
relationship primarily for the purpose of sexual victimization; and

(4) is likely to recidivate. § 18-3-414.5(1)(a)(I)-(IV); Allen, ¶ 6, 307

P.3d at 1105.

¶ 49 When a defendant is convicted of an enumerated offense, the

probation department completes an SVP assessment.

§ 18-3-414.5(2). “Based on the results of the assessment, the court

shall make specific findings of fact and enter an order concerning

whether the defendant is a sexually violent predator.” Id.

¶ 50 The trial court is ultimately responsible for determining

whether a defendant satisfies the four elements of the SVP statute.

Uribe-Sanchez v. People, 2013 CO 46, ¶ 8, 307 P.3d 1090, 1091-92.

“In making this ultimate determination, the trial court relies on

both the statute itself, and on the appellate courts’ interpretations

of the language employed by the General Assembly.” Candelaria,

¶ 9, 303 P.3d at 1204.

¶ 51 At the time of the trial court’s SVP determination, the supreme

court had already announced the legal test for trial courts to apply

when determining if a defendant established or promoted a

relationship for SVP purposes. See People v. Gallegos, 2013 CO 45,

307 P.3d 1096. In Gallegos, the court explained that the SVP

27
statute “does not grant the [Sex Offender Management Board

(SOMB)] the authority to define [the] terms” contained in the third

element of the statute. Id. at ¶ 10, 307 P.3d at 1100. The portion

of the SVPASI utilized in this case that provides definitions or

criteria for the qualifying relationship types (stranger, established,

or promoted) is not authorized by statute, and it is not the proper

test for determining whether a defendant’s relationship with the

victim satisfies the SVP statute. See id.; People v. Tunis, 2013 COA

161, ¶ 39, 318 P.3d 524, 531-32 (Because the statute does not

authorize the SOMB to define the phrases “established a

relationship” or “promoted a relationship,” the reviewing court

“must disregard the two-step inquiry and underlying criteria

identified in the screening instrument.”). In fact, because the

SOMB does not have the authority to define the terms in the

relationship criterion of the SVP statute, district courts should

disregard the screening instrument’s description of factors for

determining whether an offender established or promoted a

relationship with the victim primarily for purposes of sexual

victimization. See Gallegos, ¶ 10, 307 P.3d at 1100; see also Tunis,

¶ 39, 318 P.3d at 531 (after Gallegos, “we must disregard” the

28
screening instrument’s findings regarding the relationship

criterion).

¶ 52 The Gallegos court further held that a defendant’s conduct

during the commission of the sexual assault or offense cannot be

used to satisfy the relationship element of the SVP statute.

Gallegos, ¶¶ 10-21, 307 P.3d at 1101-02; see also Uribe-Sanchez,

¶¶ 4-11, 307 P.3d at 1091-92 (defendant’s conduct during offense

could not be considered in determining whether he promoted

relationship with victim for purpose of sexualization); Tunis, ¶ 41,

318 P.3d at 532 (recognizing that reliance on the facts of the

assault “is now precluded” by Gallegos). To satisfy the “promoted a

relationship” criterion under the SVP statute, the offender,

excluding his or her behavior during the commission of the

offense(s), must have “otherwise encouraged a person with whom he

had a limited relationship to enter into a broader relationship

primarily for the purpose of sexual victimization.” Gallegos,

¶¶ 14-15, 307 P.3d at 1100-01.

29
D. Analysis

¶ 53 Here, the district court erred in not using the legal definitions

established in Gallegos. Thus, a remand is necessary for the trial

court to apply those definitions after making findings of fact.

¶ 54 The SVPASI concluded Salas did not meet the “stranger”

criterion or the “established a relationship” criterion but met the

“promoted a relationship” criterion. While the district court

designated Salas as an SVP “based on the assessment,” it made no

factual findings on whether Salas “encouraged” the victim “to enter

into a broader relationship primarily for the purpose of sexual

victimization,” as required by statute. See, e.g., id. at ¶¶ 14-17, 307

P.3d at 1100-01; Tunis, ¶¶ 37-40, 318 P.3d at 531-32.

¶ 55 The People assert that because the PSI and SVPASI included

other accounts of sexual assault between Salas and the victim and

because the court explicitly stated that it was relying on the

assessment in making its determination, the court did not err in

designating Salas as an SVP. However, “we examine the court’s

findings and the testimony at the sentencing hearing using the

definition in Gallegos . . . .” Tunis, ¶ 39, 318 P.3d at 532. Because

the court relied on the screening instrument’s description of factors

30
when determining whether Salas met the relationship criterion of

the SVP statute and made no findings on any of the criteria in the

statute, we are unable to determine whether the court erred in

designating Salas an SVP.

¶ 56 Having determined that the court should not have relied on

the screening instrument for its finding that Salas met the

relationship criterion of the SVP statute, we next consider whether

that error requires reversal, as Salas asserts.

¶ 57 We conclude that the error committed in this case was plain.

It was obvious because the court did not follow the holding in

Gallegos in making its own factual findings relevant to whether

Salas was an SVP. While evidence in the record might support the

conclusion that Salas either established or promoted a relationship

with the victim primarily for purposes of sexual victimization under

the Gallegos standards, the court did not make specific factual

findings on the matter. Other evidence might lead to the opposite

conclusion. We perceive that such error was substantial and casts

serious doubt on the reliability of the SVP designation. Therefore,

we vacate the court’s SVP designation and remand to the trial court

31
so that it can make specific findings of fact regarding Salas’ SVP

designation. See Gallegos, ¶ 2, 307 P.3d 1098.

V. Conclusion

¶ 58 Accordingly, the judgment and sentence are affirmed. The

SVP designation is vacated, and the case is remanded to the trial

court to make specific findings of fact supporting its determination

whether Salas is an SVP, including regarding the relationship

criterion of the SVP statute, in accordance with the holding in

Gallegos.

JUDGE GRAHAM and JUDGE NAVARRO concur.

32