Peo v. Jeannoutot

23CA0219 Peo v Jeannoutot 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0219
Weld County District Court No. 21CR319
Honorable Marcelo A. Kopcow, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Carl Daniel Jeannoutot,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUSTICE MARTINEZ*
Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Philip J. Weiser, Attorney General, Frank R. Lawson, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Carl Daniel Jeannoutot, appeals the district court’s

judgment of conviction entered on jury verdicts finding him guilty of

eight counts of sexual assault on a child under the age of fifteen as

part of a pattern of abuse by a person in a position of trust. We

affirm.

I. Background

¶2 Jeannoutot lived with his cousin, D.J., his cousin’s wife, C.J.,

their son, and their two daughters, K.A. and M.J. He stayed in

their home between April and December 2020, but left at times

because of conflicts with D.J. and C.J.

¶3 K.A. and M.J. told their parents that Jeannoutot had sexually

abused them when he lived in their home. M.J. had told K.A. about

the earlier sexual assaults, but K.A. did not initially believe her

sister. She believed her sister after Jeannoutot began to abuse her.

However, neither of the girls told their parents about the assaults

until later.

¶4 Once the children’s parents learned about the assaults, they

told Jeannoutot’s mother, who insisted they call the police. A

forensic interviewer from Life Stories Child and Family Advocacy

Center interviewed the children. Subsequently, Jeannoutot was

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charged with the eight counts of sexual assault on a child and one

count of criminal attempt to contribute to the delinquency of a

minor.

¶5 At trial, the court admitted a video of the forensic interviews in

evidence, without objection from the defendant and without any

limitation on the jury’s use of the interviews. In addition to viewing

the video of the interviews, the jury also heard testimony from K.A.,

M.J., the victims’ brother and parents, Jeannoutot’s mother, police

officers, the forensic interviewer, and a generalized expert witness in

sexual assault victim dynamics. Jeannoutot testified in his defense

and told the jury that the accusations against him were untrue. To

support his defense, Jeannoutot testified that K.A. and M.J. made

the stories up to get attention from their parents and their parents

used the stories to target him for their own ulterior motives.

¶6 The jury returned guilty verdicts on the eight counts of sexual

assault on a child but acquitted him of the attempt to contribute to

the delinquency of a minor. The district court sentenced

Jeannoutot on each of the eight counts, some sentences concurrent

and some consecutive to each other, for a controlling indeterminate

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sex offense term of fifty-six years to life in the custody of the

department of corrections.

II. Discussion

¶7 On appeal, Jeannoutot contends that the evidence was

insufficient on one count, the court improperly limited cross-

examination, the expert witness improperly opined on the victims’

truthfulness, there was misconduct by the prosecutor, and there

was cumulative error. We review all of these contentions and

disagree with each of them.

A. Sufficiency of the Evidence of Count Nine

¶8 Jeannoutot first contends that there was insufficient evidence

to conclude that he committed the sexual assault of a child charged

in count nine. Specifically, he argues that because K.A.’s in-court

testimony — that Jeannoutot did not place his penis on her

buttocks — contradicted her out-of-court forensic interview, the

jury’s verdict must be reversed. We disagree.

1. Additional Facts

¶9 K.A. told the forensic interviewer about two separate instances

when Jeannoutot had assaulted her. The incidents were charged in

two separate counts. Supporting count five, K.A. told the

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interviewer that Jeannoutot took her into his bed and asked her to

be his “teddy bear.” Then he touched K.A. “down there,” put his

hand under her spandex, and touched her vagina over her

underwear.

¶ 10 In count nine, Jeannoutot was charged with “unlawfully,

feloniously, and knowingly, subject[ing] [K.A.] . . . to sexual contact

and the victim was less than eighteen years of age, and the

defendant was in a position of trust with respect to the victim . . .

[by] touching [K.A.’s] butt with [Jeannoutot’s] penis and promising

credits on Roblox.” Roblox is an online game.

¶ 11 K.A. told the interviewer that Jeannoutot sat on her bed while

she was playing Roblox. Jeannoutot closed her bedroom door,

hugged her, and held her down. He then “starts to go down there”

and she said she knew Jeannoutot wanted to “put his thing in [her]

butt,” “[b]ecause he kept on pushing [her] on [her] side. He kept on

putting his thing against [her] butt.” K.A. also told the interviewer

that she knew that Jeannoutot did the same thing to M.J., and

that’s how she knew that he wanted to put his thing in her butt.

But when K.A. told him to stop or she would tell her parents,

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Jeannoutot stopped and agreed to buy Roblox credits for K.A. in

exchange for her silence.

¶ 12 At trial, K.A. testified about the first incident, when

Jeannoutot put his hands down her pants and touched her vagina.

But K.A. said she couldn’t remember an incident where Jeannoutot

placed “his thing” on her butt. Indeed, she said, “I think that was

about [M.J.], not me.” The prosecutor asked whether K.A.

remembered talking to the forensic interviewer over a year before

trial and asked whether K.A. tried to remember correctly at the

interview. K.A. said that she had tried.

2. Standard of Review and Applicable Law

¶ 13 We review de novo a sufficiency of the evidence claim. McCoy

v. People, 2019 CO 44, ¶ 27. In doing so, we consider “whether the

relevant evidence, both direct and circumstantial, when viewed as a

whole and in the light most favorable to the prosecution, is

substantial and sufficient to support a conclusion by a reasonable

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

doubt.” Id. at ¶ 63 (quoting People v. Bennett, 515 P.2d 466, 469

(1973)) (other citation omitted).

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¶ 14 For evidence to be sufficient for a criminal conviction, it must

be more than a modicum of relevant evidence and cannot include

mere guesses, speculation, or conjecture. People v. Price, 2023 COA

96, ¶ 17 (citing People v. Sprouse, 983 P.2d 771, 778 (Colo. 1999)).

But “[w]e do not speculate on the merits of the evidence or usurp

the jury’s conclusions.” Clark v. People, 232 P.3d 1287, 1293 (Colo.

2010) (citing People v. Aalbu, 696 P.2d 796, 811 (Colo. 1985)). We

will not reassess a jury’s determination of facts that are properly

explored through direct witness testimony and cross-examination.

See id.

3. Analysis

¶ 15 We conclude that the inconsistency between K.A.’s out-of-

court statement in the forensic interview and her in-court testimony

at trial was an issue of credibility for the jury to resolve. Because

the jury found Jeannoutot guilty of count nine, it must have

decided that K.A.’s testimony in the forensic interview was more

credible than her in-court testimony.

¶ 16 It is the duty of the jury to weigh witness credibility and

resolve conflicting testimony. People v. Randolph, 2023 COA 7M,

¶ 33 (citing People v. Poe, 2012 COA 166, ¶ 14). The jury in this

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case asked to see K.A.’s forensic interview again during

deliberations, which may indicate that the jury considered the

interview in light of K.A.’s in-court testimony that she couldn’t

recall the incident.

¶ 17 Moreover, K.A.’s forensic interview account included specific

detail. For example, she recalled that she was playing Roblox when

Jeannoutot entered her room. And she said that after Jeannoutot

began placing his penis on her butt, she attempted to stop him and

agreed to stay silent in exchange for Roblox credits. K.A. also said

that she remembered what M.J. had told her about what

Jeannoutot did to M.J., because when he started to repeat that

same behavior, she knew that he planned to “put his thing in [her]

butt.”

¶ 18 There is sufficient evidence for the jury to have found that her

statement in the interview had credible detail and Jeannoutot was

guilty of count nine. We will not reweigh conflicting evidence and

substitute our judgment for the jury’s. Clark, 232 P.3d at 1293.

Regardless of how the jury resolved the credibility issue, K.A.’s

statement in the forensic interview was substantial and sufficient to

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support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.

B. D.J.’s Cross-Examination

¶ 19 Jeannoutot next contends that the district court erred by

preventing cross-examination about D.J.’s alleged involvement in

an arson case in violation of Jeannoutot’s Sixth Amendment right to

confront adverse witnesses. We conclude that the district court

abused its discretion by applying the wrong legal standard to

Jeannoutot’s offer of proof, but we conclude the error does not

require reversal because it was harmless beyond a reasonable

doubt.

1. Preliminary Proceedings

¶ 20 Before trial, Jeannoutot’s counsel indicated that she wanted to

cross-examine D.J. about his motive and bias to testify against

Jeannoutot based on a specific instance of uncharged, alleged

arson. She said that on June 13, 2020, D.J. and Jeannoutot were

stopped by a traffic police officer shortly after one or both of them

set fire to M.O.’s house. M.O. supposedly sold D.J. low-quality

methamphetamine earlier that day. Although Jeannoutot was the

only person charged with arson, his counsel argued that she should

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be allowed to ask D.J. about his involvement in the arson to show

his motive to cooperate with the prosecution and his bias against

Jeannoutot.

¶ 21 At a hearing on the arson issue, Jeannoutot’s counsel said she

was willing to make an offer of proof but that she was concerned

about introducing the evidence at that time because it related to her

“client’s constitutional right with regards to testifying or not

testifying in this case.”

¶ 22 During the trial, Jeannoutot’s counsel made an offer of proof

that the defense would introduce the following evidence: D.J. drove

to M.O.’s house with Jeannoutot in the car; D.J. was angry with

M.O. and thus had a motive to throw the Molotov cocktail (an

incendiary device) at the house; Jeannoutot and D.J. were pulled

over by a patrol police officer wearing a body worn camera shortly

after the arson; the detective investigating the arson case met with

D.J. about the case; D.J. refused to voluntarily give the detective a

DNA sample for testing; and D.J. kicked Jeannoutot out of the

home because of his involvement in the arson case.

¶ 23 The district court precluded the cross-examination, finding

there was no credible evidence that the prosecution had plans to

9
charge D.J., and that Jeannoutot had not proved by a

preponderance of the evidence that D.J. was involved with the

arson. The court reasoned that the probative value of the arson

evidence had no logical or legal relevance to the case, and therefore,

the anticipated questioning and testimony had little to no probative

value while prejudice to the prosecution was high. However, the

court told Jeannoutot’s counsel that it was willing to reconsider the

issue if Jeannoutot decided to testify or present the court other

evidence of the arson.

2. D.J.’s Trial Testimony

¶ 24 At trial, D.J. testified that he had open heart surgery on April

30, 2021, which made him comatose for twenty-seven days. He

indicated that the coma affected his memory, and that his

memories from three to five years before the surgery were “really

fuzzy” and “out of chronological order.” As a result, he could not

remember much about the events in 2020 when Jeannoutot lived in

his house and only remembered “little bits.”

¶ 25 D.J. testified he did not recall the events at issue in

Jeannoutot’s case. His response to many questions was simply

that he did not recall. He did say that Jeannoutot “was hanging out

10
with the kids a lot and that’s about it.” He described K.A., M.J.,

and his son’s personalities and said that if something was wrong,

K.A. and M.J. would tell him. He testified that his children use

their phones a bit. He said that he did not recall talking to K.A. or

M.J. about sex when they were younger and did not talk about it

with them now. His direct testimony did not corroborate the

victims’ testimonies, touch on the truthfulness or veracity of their

testimony, or otherwise support the prosecution’s case.

¶ 26 Jeannoutot’s defense counsel cross-examined D.J. about a

charge pending against him for felony drug distribution with

possession of a gun. She asked, and D.J. confirmed, that the same

prosecutor’s office was in charge of both Jeannoutot’s case and

D.J.’s pending felony case. Defense counsel also cross-examined

him about his four felony convictions: possession of drugs with

intent to distribute, felony motor theft, eluding a police officer, and

dishonesty theft. D.J. told the prosecutor on redirect that the

prosecutor’s office had not offered him anything in exchange for his

testimony in Jeannoutot’s case.

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3. Jeannoutot’s Offer of Proof and Court’s Ruling

¶ 27 The day after D.J. testified for the prosecution, Jeannoutot’s

counsel renewed and elaborated upon her offer of proof with police

reports about the arson case.

¶ 28 The reports included information that Jeannoutot had spoken

to a detective on March 10 and 15, 2021, about the arson. In those

interviews, he said that on June 13, 2020, D.J. got

methamphetamine from the victim of the arson, M.O., and later

complained that M.O.’s “dope was ‘crap’” and was “[f]ake dope that

bubbled up in the pipe.”

¶ 29 After D.J. got intoxicated on different methamphetamine and

alcohol, he reportedly told Jeannoutot that he wanted to get back at

M.O. for the fake dope but was too intoxicated to drive and asked

Jeannoutot to drive him to M.O.’s house. Jeannoutot said he did

not want to participate but D.J. threatened that he would kick

Jeannoutot out of his house and call Jeannoutot’s parole officer if

he did not help. Jeannoutot said he relented.

¶ 30 Jeannoutot also told the detective that D.J. then drove the car

and nearly crashed into another vehicle. Then Jeannoutot drove

the car to M.O.’s house while D.J. made two Molotov cocktails out

12
of beer bottles. Jeannoutot said D.J. threw one bottle that hit the

roof and landed in M.O.’s backyard. He said D.J. tried to throw the

second device into M.O.’s truck but when he couldn’t break the

truck window, he threw it at a house window.

¶ 31 The detective reported that Jeannoutot said when he drove

away from the house, he was stopped by a traffic patrol officer

because the car he was driving matched the description of one

reported for reckless driving. Jeannoutot said he got a citation for

driving without a license and because D.J. was intoxicated and in

his boxers. Then they called C.J. to bring them back to their house.

Jeannoutot said that he did not participate in the arson but was

forced to drive because he was worried about being kicked out of

D.J.’s house and going back to prison.

¶ 32 After Jeannoutot’s interview, the detective found a police

record for a traffic stop showing that Jeannoutot got a citation for

driving without a license. Body worn camera footage from the stop

confirmed that D.J. was a passenger in the car, appeared to be

intoxicated, and admitted to being intoxicated. Damage to the

house’s windowpane and M.O.’s truck window matched

Jeannoutot’s account. The arson timeline was consistent with

13
Jeannoutot’s version of events: the arson happened a few minutes

before the 11:33 p.m. traffic stop and the arson was reported at

11:44 p.m.

¶ 33 In another report, the detective recounted an interview with

D.J. on March 18, 2021. The detective said she had body camera

footage of D.J. as a passenger in a car with Jeannoutot on the night

of the arson when Jeannoutot was pulled over and cited for driving

without a license. After initially denying it, D.J. said Jeannoutot

had just picked him up from a friend’s house where he had been

drinking and could not drive himself home. He said that

Jeannoutot must have committed the arson before he picked D.J.

up. D.J. refused to submit to a voluntary buccal swab for DNA.

¶ 34 D.J. told the detective he had never met M.O. and did not

know where M.O. lived. He said he believed Jeannoutot had told

M.O. that D.J. did the arson because M.O. sent D.J. threatening

messages on Facebook Messenger. D.J. showed the detective those

messages including M.O. saying, “eye for an eye” and to “watch

your back[.]” D.J. and M.O. exchanged derogatory profanities in

their messages.

14
¶ 35 The prosecutor said that a Deputy District Attorney had

reviewed the arson case and “charges were filed as our office did see

it appropriate at the time.” Jeannoutot was charged and D.J. was

not.

¶ 36 The court found that even with this evidence, it would

continue to preclude Jeannoutot’s counsel from cross-examining

D.J. on the uncharged arson because he had not proved D.J.’s

involvement by a preponderance of the evidence. It found that

there was “no credible evidence” linking D.J. to the arson, and that

even after giving the maximum probative value of that cross-

examination evidence, the value was outweighed by the prejudicial

effect on the prosecution.

4. Standard of Review and Applicable Law

¶ 37 The United States Constitution guarantees the right of a

criminal defendant to confront witnesses against him. U.S. Const.

amends. VI, XIV. Cross-examination is the primary interest

secured by that right. People v. Margerum, 2018 COA 52, ¶ 24

(citing Davis v. Alaska, 415 U.S. 308, 315 (1974)). Accordingly, “the

right of confrontation requires courts to allow broad cross-

examination of a prosecution witness as to bias, prejudice, and

15
motivation for testifying.” Id. at ¶ 26 (citing People v. Bowman, 669

P.2d 1369, 1375 (Colo. 1983)). To cross-examine a witness about

bias, prejudice, or interest in the outcome of the trial, a defendant

must “merely show the possibility, that the witness’s testimony was

being influenced by a promise for, or even only mere hope or

expectation of, leniency with the pending charge in exchange for

favorable testimony against the defendant.” Kinney v. People, 187

P.3d 548, 560 (Colo. 2008).

¶ 38 But district courts retain considerable discretion when

deciding evidentiary issues. People v. Beverly, 2025 CO 18, ¶ 22

(citing People v. Elmarr, 2015 CO 53, ¶ 20); People v. Williams, 2025

COA 26, ¶ 28 (“We review evidentiary rulings, including those

concerning the admission of lay witness testimony, for an abuse of

discretion.”). Courts may impose reasonable limits on the cross-

examination of witnesses. Margerum, ¶ 25 (citing Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986)); Kinney, 187 P.3d at 559. An

offer of proof must show that there is evidence that would assist the

fact finder to understand other evidence or help determine a fact at

issue. People v. Lanari, 926 P.2d 116, 121 (Colo. App. 1996) (citing

Melville v. Southward, 791 P.2d 383 (Colo. 1990)). In part, the court

16
must determine the extent of the foundational evidentiary basis and

scope and content of the evidence. See id. We review such

evidentiary rulings for an abuse of discretion — meaning the

evidentiary ruling cannot be manifestly arbitrary, unreasonable, or

unfair, or stem from an erroneous view of the law. Beverly, ¶ 25

(citing Elmarr, ¶ 20).

¶ 39 If we conclude that a court’s abuse of its discretion was of a

constitutional dimension, we review the reversal under a

constitutional harmless error standard. Hagos v. People, 2012 CO

63, ¶ 11; see People v. Phillips, 2012 COA 176, ¶ 93 (“Confrontation

Clause violations are trial errors subject to constitutional harmless

error review.”). A constitutional error requires reversal unless the

reviewing court is “able to declare a belief that [the error] was

harmless beyond a reasonable doubt.” Hagos, ¶ 11 (quoting

Chapman v. California, 386 U.S. 18, 24 (1967)). We reverse if “there

is a reasonable possibility that the [error] might have contributed to

the conviction.” Id. (quoting Chapman, 386 U.S. at 24)).

5. The District Court Abused Its Discretion

¶ 40 The district court here abused its discretion because it applied

the incorrect legal standard to Jeannoutot’s offer of proof. The

17
district court required Jeannoutot to prove D.J.’s involvement by a

preponderance of the evidence. But Jeannoutot only had to offer

proof that evidence would help the jury understand that D.J. had a

potential bias for testifying against Jeannoutot. See Lanari, 926

P.2d at 121. Such evidence was admissible so long as it would

show the possibility that D.J.’s testimony against Jeannoutot was

influenced by the mere hope or expectation of leniency with a

potential arson charge. See Kinney, 187 P.3d at 560.

¶ 41 The police record placed both Jeannoutot and D.J. in the

immediate area of the arson mere minutes after it started and

before someone reported it. Jeannoutot also corroborated details

from body worn camera footage that D.J. was intoxicated and in his

boxers on the night in question.

¶ 42 Jeannoutot’s statements in the interviews revealed a motive

for D.J. to commit the arson as an act of revenge for receiving “fake

dope” from M.O. D.J. later confirmed that M.O. had accused him of

committing the arson. D.J. showed the detective an expletive-filled

exchange between D.J. and M.O. about the arson and M.O. getting

revenge on D.J. for it.

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¶ 43 Further, Jeannoutot’s statements were consistent with the

physical evidence collected at the scene of the arson including

damage to M.O.’s truck window and damage to the house’s

windowpane. It is possible that Jeannoutot only knew those details

because he committed the arson without D.J., but it is also possible

that D.J. had sufficient involvement such that D.J. was concerned.

¶ 44 It remained within the discretion of the district court to limit

the questioning of D.J. about the arson to avoid confusing the jury

and creating a distraction. We do not suggest that all the evidence

in the offer of proof was admissible, but Jeannoutot’s offer showed

sufficient grounds to question D.J. about his motive and bias.

Thus, the court abused its discretion by prohibiting any questions

at all about D.J.’s possible motives and bias stemming from the

arson investigation.

6. The Error Was Harmless Beyond a Reasonable Doubt

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

doubt for three reasons.

¶ 46 First, D.J. recalled so very little that his testimony was not at

all damaging to Jeannoutot, and it did not contradict Jeannoutot’s

defense. The little D.J. did recall was cumulative of other evidence,

19
for example that Jeannoutot spent time with the girls. To the

extent that questioning D.J. about the arson might have shown that

D.J.’s testimony was not credible, and the jury might have wholly

disregarded his testimony, it could not have had any effect on the

issues at trial. See People v. Munoz, 240 P.3d 311, 320 (Colo. App.

2009) (error resulting from testimony was harmless because an

earlier witness had already provided the same information); People

v. Allee, 77 P.3d 831, 835 (2003) (testimony that was erroneously

admitted was harmless because the same testimony was given by

other witnesses without objection). Because D.J.’s testimony had

little or no effect on the strength of the case against Jeannoutot, the

lack of cross-examination about the arson investigation caused no

harm. See People v. Grudznske, 2023 COA 36, ¶ 79.

¶ 47 Second, it is unlikely D.J. would have recalled anything about

the arson investigation. D.J. replied he could not recall the events

in question over sixty times during his testimony, due to memory

loss after he was in a coma. If he did recall anything, it is likely he

would have denied any involvement in the arson as he had in the

police interview, and it is unlikely the questioning could have

proceeded any further.

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¶ 48 Third, Jeannoutot’s counsel did cross-examine D.J. on his

motivation and bias stemming from possible prosecution, albeit not

about possible arson charges but instead about a pending felony

charge of drug distribution with possession of a gun. She also

cross-examined D.J. with his four felony convictions. Despite the

court’s preclusion of cross-examination on the arson, the jury still

had evidence that D.J. had a motivation to cooperate with the

prosecution on a pending charge. See United States v. Purkey, 428

F.3d 738, 753-54 (8th Cir. 2005) (harmless error where the

defendant’s counsel “demonstrated by other means” that the

witness had a desire for leniency with the prosecution); United

States v. Gaines, 8 Fed. Appx. 635, 640-41 (9th Cir. 2001)

(harmless error where the jury heard “plenty of other evidence”

impeaching the witness’s credibility).

C. K.A.’s Testimony

¶ 49 Jeannoutot contends that the court abused its discretion by

preventing cross-examination of K.A.’s opinion of M.J.’s

truthfulness. We disagree.

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1. Additional Facts

¶ 50 During K.A.’s cross-examination, Jeannoutot’s counsel asked

K.A. why she did not initially believe M.J. when M.J. told her that

Jeannoutot had sexually assaulted M.J. His counsel asked, “I also

hear you say that [M.J.] likes to make up a lot of stories?” K.A.

replied, “She doesn’t make up stories, really. She’s mainly truthful,

but, if it comes to, like pulling a prank on me, then she’ll act funny

and stuff, and I’ll know that she’s just kidding.” Jeannoutot’s

counsel went on to ask, “When [M.J.] initially told you, you did not

believe her that Jeannoutot had done anything to her, right?” K.A.

replied, “I didn’t believe her at first, yeah.”

¶ 51 The prosecutor then objected to four follow-up questions: (1)

“You did not believe her, because she had . . . .”; (2) “You did not

believe her because she had been untruthful . . . .”; (3) “You said

that you did not believe her. Is there a reason you did not believe

her?”; and (4) “So, when [M.J.] first talked to you one time, and then

talked to you another time about what she claimed Jeannoutot had

done, your first thought on the second time she told you was that

she was making up a . . . .” The court sustained all four objections.

After K.A.’s testimony concluded, Jeannoutot’s counsel made an

22
offer of proof that had she been allowed to ask K.A. those questions,

K.A. would have told the court that M.J. had not been truthful in

the past with K.A.

2. Applicable Law

¶ 52 “The credibility of a witness may be attacked or supported by

evidence in the form of opinion or reputation[.]” CRE 608(a)

(outlining two limitations not relevant to our analysis) (emphasis

added). Further, “a witness may testify as to his opinion of, or the

reputation of, another witness for truthfulness or untruthfulness.”

People v. Ortega, 672 P.2d 215, 219 (Colo. App. 1983) (citations

omitted). But specific instances of conduct of a witness may not be

proved by extrinsic evidence. CRE 608(b); People v. Cole, 654 P.2d

830, 832 (Colo. 1982) (“[A]s a general rule[,] specific instances of

prior conduct may not be proven by extrinsic evidence to impeach

the credibility of the witness.”).

3. Analysis

¶ 53 Jeannoutot’s counsel attempted to introduce testimony from

K.A. that there were specific instances when M.J. was not truthful.

After hearing K.A.’s response about whether she believed M.J. to be

truthful generally, his counsel asked questions about why K.A.

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initially did not believed M.J. when she told K.A. about

Jeannoutot’s sexual assault. With these follow-up questions,

counsel was no longer asking about reputation for truthfulness

generally but instead was attempting to elicit testimony that M.J.

had been untruthful on other occasions. The district court properly

exercised its discretion by excluding any testimony about such

specific instances of M.J.’s conduct. See Beverly, ¶ 22.

D. Expert Witness Testimony

¶ 54 Jeannoutot contends that the district court abused its

discretion when it allowed the prosecution’s expert witness to testify

about the patterns she had seen in fabricated allegations of sexual

assault. Because his counsel did not object to this testimony at

trial, Jeannoutot also contends that the error was plain. We do not

agree that the district court erred.

1. Additional Facts

¶ 55 The prosecution called Jean McAllister to testify as an expert

in interpersonal violence which she described as “circumstances

related to child abuse, child sexual abuse, [and] sexual assault”

among other subjects. The court admitted her as an expert in the

field of sexual assault victim dynamics under CRE 712.

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¶ 56 During cross-examination, Jeannoutot’s counsel asked

McAllister, “And today, as part of your opinion, you’re not saying

that children or adolescents are not capable of fabricating an event,

or events, correct?” McAllister responded, “I have not said that. It

is rare that sexual abuse fabrications are made. They happen, I

identified some when I was . . . a psychotherapist, and there are

consistent patterns of how those happen typically.” (Emphasis

added.)

¶ 57 On redirect, the prosecutor asked McAllister to elaborate on

her colloquy with Jeannoutot’s counsel:

Prosecutor: You’re not telling this jury that
children could never make up sexual abuse
allegations about somebody. Do you
remember being asked that question?

McAllister: Yes.

Prosecutor: And I think your answer was that
you’ve actually been called upon to identify
that before?

McAllister: I did identify it in a couple of cases,
and I have been called upon to identify it.

Prosecutor: Okay. And you agree that’s not
what you’re being asked to do here?

McAllister: I am not.

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Prosecutor: But, you said there were patterns
that tend to crop up when that’s the situation.
Can you tell the jury what those patterns are?

McAllister: First of all, you wouldn’t have that
primary experiential memory in a false or
fabricated report in most cases. Kids don’t
know how to describe what it feels like to be
sexually abused if they haven’t been sexually
abused. In cases where kids are pressured by
another parent when there’s a separation, to
report something, typically their descriptions
are not based in primary sensory experience,
and they sometimes include language that’s
more adult than they would have in their
personal experience.

Kids who are making up, and typically they’re
older adolescents, but one of the things is, that
when people make false reports, older
adolescents are often trying to get out of
trouble for something, and they disclose that
they’ve been sexually assaulted. And, they
almost never identify a specific person,
because they still have the beliefs that many
people do, that most sex assault is from a
scary stranger, and “I didn’t do what I was
supposed to do ‘cause some scary stranger
grabbed me on the way home and sexually
assaulted me,” or, “I was way across town
where I wasn’t supposed to be ‘cause
somebody pulled me in their car, and I, and
took me across town and dumped me.” So, it’s
more to get out of being in trouble for where
they are or what they’re doing in those kinds of
cases. Fabrications do happen.

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Jeannoutot’s counsel did not object and chose not to recross

McAllister.

2. Standard of Review and Applicable Law

¶ 58 “‘We review a trial court’s admission of expert testimony for an

abuse of discretion and will reverse only when that decision is

manifestly erroneous.’” People v. Cooper, 2021 CO 69, ¶ 44 (quoting

People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011)). Because

Jeannoutot’s trial counsel did not object to the expert testimony, we

would reverse only for plain error. We reverse under plain error

review only if the error “so undermined the fundamental fairness of

the trial itself so as to cast serious doubt on the reliability of the

judgment of conviction.” Hagos, ¶ 14 (quoting People v. Miller, 113

P.3d 743, 748-50 (Colo. 2005).

¶ 59 “Generalized expert testimony may not bolster the credibility of

a victim by impermissibly implying that she is telling, or has

previously told, the truth about the charged incident.” Cooper, ¶ 95

(citing Venalonzo v. People, 2017 CO 9, ¶¶ 32-34); see also People v.

Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (“In Colorado, neither

lay nor expert witnesses may give opinion testimony that another

witness was telling the truth on a specific occasion.”). But

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“generalized expert testimony” about a topic that does not touch

upon the truthfulness of a victim’s testimony or opine about the

veracity of that testimony may be incidental and acceptable. See

Cooper, ¶ 97. That generalized expert testimony must fit the facts

in the case, meaning it must have a sufficient logical connection to

the facts of the case to be helpful and clear the evidentiary bar of

CRE 403. Id. at ¶ 98; 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.”).

3. Analysis

¶ 60 Jeannoutot’s counsel asked McAllister whether alleged child

victims of sexual assault sometimes fabricate their allegations. She

did so because Jeannoutot’s theory of defense was that K.A. and

M.J. had fabricated the accusations against him. In her response,

McAllister indicated that there are consistent patterns of how

fabrications happen. On redirect, the prosecutor asked McAllister

to elaborate on those patterns. The reason for this elaboration is

clear: those patterns could help the jurors determine, in their

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weighing of the expert and victim testimony, whether the victims’

testimony matched McAllister’s patterns of fabrication.

¶ 61 Jeannoutot contends that McAllister’s testimony attempted to

corroborate K.A.’s and M.J.’s testimonies, and that the expert

testimony’s purpose was to impermissibly bolster the victims’

credibility and truthfulness.

¶ 62 But McAllister testified repeatedly that she did not know or

understand the allegations in Jeannoutot’s case; she had not met

with K.A., M.J., or Jeannoutot;and had not read police reports,

victim statements, or any other document about the case except the

subpoena that listed Jeannoutot as the defendant in the case.

Directly before the colloquy with Jeannoutot’s counsel about the

question of fabrication, McAllister confirmed “I’m offering general

information. I’m not here to make any statements about the facts

of the case at all.”

¶ 63 McAllister never opined about the victims or the defendant in

this case. Nor did she testify that victims never fabricate but

instead opined that fabrication is rare. Indeed, McAllister indicated

that fabrication was possible and she had worked in previous cases

where a purported victim had fabricated sexual assault. Nothing in

29
McAllister’s description of sexual assault fabrication directly

touched on facts in this case, but her testimony could help the jury

confirm or refute the defense’s theory that the victims had

fabricated.

¶ 64 Thus, we conclude that McAllister’s generalized testimony had

a logical connection to the facts in the case and was helpful to the

jury while clearing CRE 403’s bar. See Cooper, ¶ 98.

E. Prosecutorial Misconduct

¶ 65 Jeannoutot contends that the district court plainly erred by

allowing the prosecutor to misrepresent McAllister’s testimony in

closing argument. We disagree.

1. Additional Facts

¶ 66 The prosecutor referred to McAllister’s testimony in her closing

and rebuttal arguments. In one instance, the prosecutor said,

“[K.A.’s and M.J.’s accounts] are corroborated stories. These are

stories not only corroborated by other people that were in the

house, they’re corroborated by Jean McAllister.” The prosecutor

also characterized McAllister’s testimony as saying false allegations

are “super rare.”

30
[McAllister], who’s an educator, she’s not
giving her opinion. She’s giving you education
[and] said false allegations, if false allegations
happen in sexual assault, it’s super rare,
right? She said it’s super rare and when it
does happen, it’s usually something like
stranger rape, right?

¶ 67 Jeannoutot’s counsel did not object to either reference.

2. Standard of Review and Applicable Law

¶ 68 In determining claims for prosecutorial misconduct, we use a

two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). When considering the first step, we determine whether the

conduct was improper based on the totality of the circumstances.

Id. We consider the comments in the context of the argument as a

whole and view the comments in light of the evidence before the

jury. People v. Samson, 2012 COA 167, ¶ 30. We give wide latitude

to argue based on the facts in evidence and reasonable inferences

drawn therefrom. People v. Strock, 252 P.3d 1148, 1153 (Colo. App.

2010). We acknowledge that the prosecutor may also employ

rhetorical devices and engage in embellishment without misstating

the evidence or the law. Samson, ¶¶ 31-32.

¶ 69 In the second step, we identify any misconduct and determine

whether it warrants reversal under the applicable standard. Wend,

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235 P.3d at 1096. When a defendant does not object at trial, we

review prosecutorial misconduct for plain error. People v.

Vialpando, 2022 CO 28, ¶ 20; People v. Vasquez, 2022 COA 100,

¶ 50 (citing People v. Robinson, 2019 CO 102, ¶ 19). Under the

plain error standard, “we will only reverse when the misconduct

was ‘flagrantly, glaringly, or tremendously improper.’” Robinson,

¶ 19 (quoting Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.

2005)).

3. Analysis

¶ 70 Under step one, we begin by reviewing the context of and the

totality of the circumstances around the prosecutor’s comment that

McAllister’s testimony “corroborated” K.A.’s and M.J.’s accounts.

Her comments were near the beginning of her closing statement

after saying that and K.A.’s and M.J.’s testimonies corroborated one

another. The prosecutor said, “These are corroborated stories.

These stories are corroborated by other people that were in the

house. They’re corroborated by Jean McAllister. We’re gonna talk a

lot about what Jean McAllister told you and educate everybody on

— that was a lot of education.” The prosecutor went on to say,

“And you heard corroboration through other people. In the

32
prosecution’s world, statements are corroborated, and in the

prosecution’s world, you now have information from Jean

McAllister.” She went on to say that McAllister had never met with

K.A., M.J., or Jeannoutot, and she had limited factual knowledge

about the case. The prosecutor told the jury that McAllister told

them “exactly what was going to happen in this case and . . . she’s

never met anybody in this case.”

¶ 71 We conclude the prosecutor’s use of “corroborate” is within the

context of her providing an educational framework with which the

jury could view and weigh the victims’ testimony. Moreover, the

plain language of the term “corroborate” supports our conclusion.

It means to strengthen or confirm or to make more certain. Black’s

Law Dictionary 436 (12th ed. 2024). Similarly, “corroborated”

means (of a statement or claim) supported by independent evidence

that is both credible and admissible. Id. The prosecutor properly

used corroborate as a rhetorical device to imply that McAllister’s

testimony strengthened both victims’ testimonies. She did not

misstate the evidence, claim that McAllister testified that K.A. and

M.J. were truthful, or otherwise commit misconduct under step one

of our analysis. Samson, ¶¶ 31-32.

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¶ 72 As for the second comment — that victim false allegations

were “super rare” — it occurred during the prosecution’s rebuttal

argument. The prosecutor characterized sexual abuse fabrications

as “super rare” where McAllister had only said such fabrications are

“rare.”

¶ 73 We do not perceive a mischaracterization of evidence by the

prosecutor adding the superlative adverb “super” to McAllister’s

testimony. Prosecutors may embellish in their rhetoric during

closing statements and adding a superlative to McAllister’s

testimony is not a mischaracterization of the evidence.

¶ 74 Regardless, under a plain error standard, neither comment,

even if it was considered misconduct, rose to the level of being

flagrantly, glaringly, or tremendously improper such that it

substantially influenced the verdict or affected the fairness of the

trial proceedings under plain error review.

F. Cumulative Error

¶ 75 Finally, Jeannoutot contends that the district court’s

combined errors amounted to cumulative error because, in the

aggregate, he was unconstitutionally denied a fair trial. See

Howard-Walker v. People, 2019 CO 69, ¶¶ 23-24. Because we have

34
concluded that there was only one error, there is no cumulative

error. See id. at ¶ 25.

III. Disposition

¶ 76 The district court’s judgment is affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.

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