Peo v. Applehans

23CA0099 Peo v Applehans 01-15-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0099
City and County of Denver District Court No. 20CR5477
Honorable Edward D. Bronfin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert M. Applehans,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE KUHN
Dunn and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 15, 2026

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Albani Law, LLC, Peter B. Albani, Denver, Colorado; Path Forward Legal,
Jennifer Gersch, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Robert M. Applehans, appeals his judgment of

conviction for four counts of sexual assault on a child, one count of

aggravated incest, a crime of violence sentence enhancer, and an

aggravated sex offense sentence enhancer. We affirm.

I. Background

¶2 Applehans’s crimes involved two minor victims. The first

victim was A.C., Applehans’s stepdaughter. Over the course of

several years, beginning when A.C. was seven years old, Applehans

would enter A.C.’s bedroom at night while she appeared to be

sleeping. He would then touch her breasts and vagina, and he

would digitally penetrate her vagina.

¶3 The second victim was K.B., one of A.C.’s cousins. K.B. visited

A.C. for a week one summer and shared A.C.’s bedroom. This was

during the period in which Applehans was assaulting A.C. One

night during K.B.’s visit, Applehans entered the bedroom and

sexually assaulted K.B. in the same manner as he had done to A.C.

¶4 Eventually, A.C. confronted Applehans and then made an

outcry, reporting the assaults to her mother, father, and

stepmother.

1
¶5 Applehans was charged and tried on five counts for his

assaults on A.C.: sexual assault on a child (pattern of abuse),

sexual assault on a child (position of trust), aggravated incest,

crime of violence (caused bodily injury), and aggravated sex offense

(child under twelve and defendant ten years older). See

§ 18-3-405(1), (2)(d), C.R.S. 2025; § 18-3-405.3(1), (2)(a), C.R.S.

2025; § 18-6-302(1)(a), C.R.S. 2025; § 18-1.3-406(2)(b), C.R.S.

2025; § 18-1.3-1004(1)(e)(I), C.R.S. 2025.

¶6 Applehans was charged and tried on two counts for his

assault on K.B.: sexual assault on a child (position of trust) and

sexual assault on a child. See § 18-3-405.3(1), (2)(a); § 18-3-405(1).

¶7 The jury found Applehans guilty on all counts. The trial court

imposed an indeterminate sentence of twenty-four years to life in

the custody of the Department of Corrections for each count. The

court imposed the sentences for the acts committed against each

victim consecutively to those for the other victim.

II. Analysis

¶8 On appeal, Applehans contends that the trial court erred by

(1) failing to give a curative instruction or declare a mistrial in

response to potential jurors making prejudicial statements during

2
voir dire; (2) attributing the dismissal of an expert witness to the

defense; (3) denying two defense motions for a mistrial brought in

response to the prosecution’s discovery violations; and (4) allowing

the prosecution to amend the information and complaint during

trial. Applehans also asserts the doctrine of cumulative error. We

address each contention in turn.

A. Jurors’ Statements During Voir Dire

¶9 Applehans contends that the trial court deprived him of his

right to a fair trial by not providing a new jury panel after four

prospective jurors made prejudicial statements in the presence of

the other jurors. He asserts that defense counsel’s request that the

court strike the jurors was “tantamount to a request for a mistrial.”

We are not persuaded.

1. Standard of Review

¶ 10 We review a trial court’s denial of a motion for a mistrial for an

abuse of discretion. People v. Van Meter, 2018 COA 13, ¶ 9. A trial

court abuses its discretion when its ruling is “manifestly arbitrary,

unreasonable, or unfair, or contrary to law.” Id. “Because the trial

court is in a better position” than an appellate court “to evaluate

any adverse effect of improper statements or testimony on a jury, it

3
has considerable discretion to determine whether a mistrial is

warranted.” People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009),

aff’d sub nom., People v. Simon, 266 P.3d 1099 (Colo. 2011).

¶ 11 We review errors that were not preserved by objection for plain

error. Hagos v. People, 2012 CO 63, ¶ 14. To qualify as plain error,

an error must be obvious and substantial. Id. We reverse only

when the error so undermined the fundamental fairness of the trial

that it casts serious doubt on the reliability of the judgment of

conviction. Id. An error is obvious only if, at the time of trial, the

action challenged on appeal contravened a clear statutory

command, a well-settled legal principle, or Colorado case law. See

People v. Crabtree, 2024 CO 40M, ¶¶ 42, 53.

2. Additional Facts

¶ 12 At the start of voir dire, before the trial court had the jury

panel complete written questionnaires, the court instructed the

prospective jurors on the core legal principles that apply to criminal

trials — the defendant’s presumption of innocence, reasonable

doubt, the prosecution’s burden of proof, and the defendant’s right

to testify or not testify. The court then asked if any of the potential

jurors would be unable to follow those legal principles if selected as

4
jurors in the case. Multiple jurors came forward and spoke in open

court. Although often not directly addressing the legal principles,

the jurors stated why they believed that they could not remain

unbiased. Applehans challenges what the following four jurors said

in front of the panel:

• The first juror said she had been a victim of sexual assault.

• The second juror said she had also been a victim of sexual

assault.

• The third juror said that “[his] cousin is going through

pretty much this exact same trial like right now.”

• The fourth juror said that she was a therapist who works

“with victims of sexual assault and incest and childhood

sexual abuse,” and “I feel like people almost — you know,

it’s incredibly rare for people to make something like that

up. I also think it’s really hard to prove.”

Except for the first juror, the court excused these jurors after they

made their statements.1

1 Though it does not affect our analysis, it does not appear that the

first potential juror served on the final jury.

5
¶ 13 Following the therapist juror’s excusal, defense counsel

requested a bench conference and then moved to strike the entire

panel because of the therapist’s statements. Defense counsel did

not refer to the three other jurors’ statements in requesting a new

jury panel. The trial court denied the motion but offered to provide

a curative instruction, to which the defense did not object. The

court then instructed the jury panel:

[C]omments made by jurors here are not
evidence. They’re that juror’s individual
viewpoint. They should not be considered by
you in terms of any of the evidence or issues in
the case. You must decide the case not based
on what somebody says or their personal
viewpoints, but, instead, solely on the facts
and evidence presented at trial.

3. The Trial Court Remedied Any Prejudice
with the Curative Instruction

¶ 14 “When a prospective juror makes a potentially prejudicial

statement during voir dire, the trial court may issue a curative

instruction; canvass the jury; or declare a mistrial.” Van Meter,

¶ 10 (quoting Vititoe v. Rocky Mountain Pavement Maint., Inc., 2015

COA 82, ¶ 20). “Generally, a curative instruction issued after a

prejudicial statement is made remedies any harm caused by the

statement.” Id. “Because a mistrial is the most drastic of remedies,

6
one is ‘only warranted where the prejudice to the accused is too

substantial to be remedied by other means.’” Id. at ¶ 11 (quoting

People v. Collins, 730 P.2d 293, 303 (Colo. 1986)).

¶ 15 Regarding the therapist juror’s prejudicial statements, we

accept for the purposes of argument Applehans’s assertion that his

request to strike the panel amounted to a motion for a mistrial. See

id. at ¶¶ 7, 13 (treating the defendant’s request for new panel of

prospective jurors based on one juror’s potentially prejudicial

statement as a motion for mistrial). But even accepting that as the

case, we conclude that the court did not abuse its discretion by

denying the motion because the court remedied any prejudice

through its curative instruction. See id. at ¶ 10.

¶ 16 We are unconvinced by Applehans’s claims that the prejudice

was too substantial to be remedied by the curative instruction.2

2 Applehans also asserts on appeal that the trial “court should have

canvas[s]ed the jury first and foremost.” But this assertion is at
odds with the thrust of his primary contention, which is that the
court erred by not granting the motion for a mistrial. Canvassing
the jury to determine whether jurors have been impacted by a
statement is an alternative to, not support for, granting a mistrial.
People v. Van Meter, 2018 COA 13, ¶ 10. Either way, our
conclusion that the curative instruction was sufficient to cure any
potential prejudice applies to this alternative argument with equal
force.

7
The record shows that the therapist juror’s comment was brief and

the curative instruction was thorough. “We presume that jurors

follow the instructions that they receive.” People v. McKeel, 246

P.3d 638, 641 (Colo. 2010). Further, following the curative

instruction, the court’s written questionnaire and remaining jury

selection process provided sufficient opportunities for the jurors to

alert the court to any unwillingness to follow the curative

instruction. Cf. People v. Clemens, 2017 CO 89, ¶ 19 (“[A]

prospective juror’s silence in response to rehabilitative questioning

constitutes evidence that the juror has been rehabilitated when the

context of that silence indicates that the juror will render an

impartial verdict according to the law and the evidence submitted to

the jury at the trial.”). The record indicates that those who served

on the jury indicated they would be fair and impartial. See Van

Meter, ¶ 14. Applehans does not explain — and we do not see —

how the prospective therapist juror’s statements caused prejudice

that was too great for the curative instruction to remedy. See id. at

¶ 11; People v. Wise, 2014 COA 83, ¶ 28 (“[T]he mere loss of a

peremptory challenge, standing alone, is insufficient to require

reversal.” (citing People v. Novotny, 2014 CO 18, ¶ 27)).

8
¶ 17 Regarding the statements from the other three jurors,

Applehans contends, as best as we can discern, that the curative

instruction was insufficient because the court caused the alleged

prejudice by questioning the jurors before administering written

questionnaires. Defense counsel didn’t object to the statements

from any of these jurors and didn’t request a curative instruction.

Accordingly, we review this contention for plain error.

¶ 18 “[A] trial court does not commit plain error if it does not give a

curative instruction sua sponte.” Van Meter, ¶ 10 (quoting People v.

Mersman, 148 P.3d 199, 203 (Colo. App. 2006)). And Applehans

doesn’t cite a clear statutory command, well-settled legal principle,

or Colorado case that prohibits a court from questioning prospective

jurors before it administers written questionnaires. See People v.

Reese, 670 P.2d 11, 13 (Colo. App. 1983) (“[Trial] courts have broad

discretion in fashioning the methods of exercising peremptory

challenges and the jury selection procedure in general.” (citation

omitted)). Accordingly, any error resulting from the three jurors’

statements wasn’t plain.

9
B. Motion to Disqualify Suvi Miller

¶ 19 Applehans contends that the trial court prejudiced him and

disparaged his defense team by informing the jury that the court

had granted the defense’s motion to disqualify Suvi Miller, the

prosecution’s expert witness. We disagree.

1. Standard of Review

¶ 20 We review a trial court’s denial of a motion for a mistrial and

discovery sanctions for an abuse of discretion. People v. Tippet,

2023 CO 61, ¶ 34; Van Meter, ¶ 9. A trial court has wide discretion

in conducting a trial and “is in the best position to judge the effect

of any improper influence on the jury.” Medina v. People, 114 P.3d

845, 860 (Colo. 2005) (citing People v. Raehal, 971 P.2d 256, 260

(Colo. App. 1998)).

2. Additional Facts

¶ 21 The prosecution called Miller to testify as an expert in the area

of child sexual abuse. After Miller testified to her credentials and

the prosecution moved to qualify her as an expert, the defense

requested a bench conference. Defense counsel informed the court

that she had just learned that Miller had received a formal

disciplinary letter from the Colorado State Board of Social Work

10
Examiners, which the prosecution had never disclosed to the

defense.3 The defense then objected to the court allowing Miller to

testify.

¶ 22 The trial court found that the letter qualified as a disciplinary

action that the prosecution should have disclosed to the defense.

Accordingly, the court disqualified Miller from testifying. The court

then proposed instructing the jury that “for reasons . . . the jury

doesn’t need to consider . . . and they should not speculate about,

the defense has moved to disqualify [Miller] and [the court has]

granted the motion.” Defense counsel did not object to the

instruction, responding only, “Thank you, Your Honor.”

¶ 23 The trial court instructed the jury as follows:

For reasons that I am going to instruct you not
to consider, not to guess about, not to
speculate about, it doesn’t matter in terms of
any of the issues that you need to decide upon
and determine in the case, but there has been
a motion by the defense for the [c]ourt to
disallow [Miller] from testifying for reasons,
again, that have absolutely no bearing on the
issues in this case, and I’m going to instruct

3 The letter admonished Miller for failing to comply with “mandatory

disclosure requirements . . . by providing an inadequate mandatory
disclosure form to a client lacking the credentials, and license
number, also listing ‘practice of psychology’ rather than social
work.”

11
you not to consider it at all in any of your
evaluations or deliberations of the evidence.

I have granted that motion. So we are going
to, with our thanks and respect, excuse [Miller]
at this point.

The court then released the jury for lunch.

¶ 24 During the lunch recess, defense counsel informed the court

that, when the court provided its instruction, the defense had

observed three members of the jury becoming “visibly distressed,”

“upset,” and “pissed off” while looking at Applehans and defense

counsel. The defense team interpreted the looks to mean that the

jurors believed that the defense moved to disqualify Miller to

obfuscate and hide evidence, prejudicing “the defense and

[A]pplehans.” The defense proposed that the court provide a further

curative instruction advising the jury that the court struck Miller

because “the prosecution failed to disclose information required

under the United States Constitution” or the discovery rules.

¶ 25 The court clarified that it could not verify the defense’s

observations, as from the court’s perspective “everybody seemed to

be in a great mood” when the jurors left the courtroom. The

12
prosecution agreed with the court’s assessment. Still, the court

said it would consider a further curative instruction.

¶ 26 Afterwards, the prosecution moved the court to reconsider

Miller’s disqualification, which the court declined to do. Then the

defense moved for a mistrial based in part on “the [c]ourt’s

comment to the jury that [Miller’s disqualification was] because of

the defense’[s] motion,” which the court also denied.

¶ 27 The court later added to the final jury instructions an

instruction that addressed Miller’s disqualification:

The decision of the [c]ourt in sustaining or
overruling an objection must not be considered
in your evaluation of the case, what has or has
not been proven, or whether or not the
prosecution has or has not met its burden in
proving, beyond a reasonable doubt, any of the
charges. The decision of the [c]ourt not to
permit a witness to testify during the trial
must not be considered by you for any reason;
you may not guess or speculate about the
reason(s) for the ruling, use that ruling in favor
of or against either side, or consider it for any
purpose.

13
3. The Trial Court Did Not Abuse Its Discretion
by Granting the Relief Requested

¶ 28 As part of its ruling disqualifying Miller from testifying, the

court proposed the instruction that explained why Miller was being

disqualified, and Applehans assented to the proposal. Therefore, at

least as to the initial curative instruction itself, Applehans cannot

now complain that the instruction was insufficient to prevent or

cure any prejudice. See People v. Alemayehu, 2021 COA 69, ¶ 101;

People v. Jamison, 2018 COA 121, ¶ 37.

¶ 29 As to the disparaging looks from some of the jurors the

defense team said it observed, the court later provided the jury with

additional curative instructions regarding attorney objections to

remedy any purported prejudice arising from these disparaging

looks. Those curative instructions were also given, at least in part,

at the defense’s request.

¶ 30 In addition to the contemporaneous curative instruction, the

court also provided the detailed final jury instruction telling the

jurors that they could not use the reasons for the court’s ruling in

their deliberations. And as previously indicated, we must presume

14
the jurors followed the court’s instructions. See McKeel, 246 P.3d

at 641.

¶ 31 Besides, Applehans’s assumption that the disparaging looks

from jurors meant that the jury was prejudiced against him is

speculative. Such speculation does not establish that the court

abused its discretion by not providing the defense’s requested

additional curative instruction stating that the court struck Miller

because of the prosecution’s discovery violation. See Raehal, 971

P.2d at 260 (“[T]his court must give deference to the findings of the

trial court, based on its observation of courtroom occurrences,

rather than engage in abstract speculation to find prejudice.”);

People v. Rodriguez, 209 P.3d 1151, 1162 (Colo. App. 2008)

(requiring “more than mere speculation concerning the possibility of

prejudice” to establish court bias), aff’d, 238 P.3d 1283 (Colo.

2010). And the court’s observation that “everybody seemed to be in

a great mood” when the jurors left the courtroom cuts against

defense counsel’s perception of the events.

¶ 32 Given all of this, we cannot say on this record that the court

abused its discretion by not providing the additional curative

instruction. It responded to Applehans’s requests for a curative

15
instruction by repeatedly and appropriately instructing the jurors

that, when evaluating the case, they should not consider the court’s

exclusion of Miller’s or other witnesses’ testimony or the court’s

decisions on objections.

C. Discovery Violations

¶ 33 Applehans contends that the trial court abused its discretion

by denying two motions for a mistrial based on the prosecution’s

discovery violations involving Miller’s report and a report of A.C.’s

discussion with a medical professional. Again, we’re not persuaded.

1. Standard of Review and Applicable Law

¶ 34 We review a trial court’s imposition of sanctions for discovery

violations for an abuse of discretion. People v. Whittington, 2024

CO 65, ¶ 17. In this regard, “great deference is owed to trial courts”

because “of the multiplicity of considerations involved and the

uniqueness of each case.” People v. Lee, 18 P.3d 192, 196 (Colo.

2001). But the trial court’s discretion is not unlimited, and we will

reverse a trial court’s sanctions that are manifestly arbitrary,

unreasonable, or unfair. Tippet, ¶ 35.

¶ 35 A trial court also has considerable discretion to determine if a

mistrial is warranted, and we will not disturb the decision to deny a

16
mistrial “absent a clear showing of an abuse of discretion and

prejudice to the defendant.” People v. Williams, 2012 COA 165,

¶ 13 (quoting Bloom v. People, 185 P.3d 797, 807 (Colo. 2008)).

¶ 36 The purpose of requiring discovery under Crim. P. 16 “is to

advance the search for truth.” People v. Dist. Ct., 793 P.2d 163, 168

(Colo. 1990). Sanctions, then, serve the dual purposes of

“protecting the integrity of the truth-finding process and deterring

discovery-related misconduct.” Lee, 18 P.3d at 196. Accordingly,

sanctions may be curative or they may be deterrent and punitive

when willful misconduct warrants modification of discovery

practices. Whittington, ¶ 19. Without “willful misconduct or a

pattern of neglect demonstrating a need for modification of a party’s

discovery practices, the rationale for a deterrent sanction loses

much of its force.” Lee, 18 P.3d at 196.

¶ 37 The Colorado Supreme Court has laid out several factors for

courts to consider when fashioning discovery sanctions: “(1) the

reason for and degree of culpability associated with the violation;

(2) the extent of resulting prejudice to the other party; (3) any

events after the violation that mitigate such prejudice;

17
(4) reasonable and less drastic alternatives to exclusion; and (5) any

other relevant facts.” Whittington, ¶ 17 (quoting Tippet, ¶ 37).

2. Disciplinary Letter for Suvi Miller

¶ 38 Applehans asserts that the prosecution’s failure to disclose

Miller’s disciplinary letter prejudiced Applehans because the letter

was discovered in the middle of trial. Applehans argues that this

prevented him from addressing the letter pretrial or consulting with

a potential defense expert. Furthermore, Applehans claims that the

prosecutor’s opening statements pertaining to Miller’s expected

testimony misled the jury, and the court allowing Miller to testify to

her credentials had a negative influence on Applehans’s case.

a. Additional Facts

¶ 39 In his opening statement, the prosecutor said that the

prosecution intended to “put an expert on the stand who’s going to

talk about why a child [victim] might not disclose or why they beg

their friend not to tell somebody else” about a sexual assault.

¶ 40 As discussed supra Part II.B.2, the defense later moved for a

mistrial after the trial court disqualified Miller because of the

prosecution’s failure to disclose the disciplinary letter. The defense

18
claimed that a mistrial was warranted because Miller had

prejudicially already provided some testimony.

¶ 41 The trial court noted that, even though Miller had not

informed the prosecution that she had received a disciplinary letter,

the prosecution still had not met its obligation to uncover and

disclose the letter. Yet, the court denied Applehans’s motion for a

mistrial because (1) the prosecution had not acted deliberately in

failing to disclose the letter; (2) Miller was testifying as a generalized

expert and not to specific facts in the case; (3) the court thought

disqualifying Miller was the most reasonable and appropriate

remedy for the situation; and (4) the court had contemporaneously

instructed the jury not to consider the disqualification.

b. The Disqualification of Miller
Was Not an Abuse of Discretion

¶ 42 Given these circumstances, the court didn’t abuse its

discretion by not granting Applehans’s motion for a mistrial

according to the factors applicable for the fashioning of a discovery

sanction. See id. at ¶ 17.

¶ 43 First, the court found that the prosecution did not act in bad

faith because it was unaware of the disciplinary letter, and

19
therefore, the court crafted appropriate curative measures. See Lee,

18 P.3d at 197 (holding that when deterrence is inapplicable, “the

goal must be to cure any prejudice resulting from the violation”).

The record contains support for this finding.

¶ 44 Second, the resulting prejudice to Applehans was minimal

because the surprise to the defense caused by finding the

disciplinary letter late was mitigated by Miller’s disqualification.

The information that the jury heard about Miller — the prosecutor’s

opening statements and Miller’s testimony regarding her

credentials — necessarily had little direct bearing on the outcome of

the case because Miller’s role was that of a generalized expert. And

the prosecutor’s mention in his opening statement that Miller would

be called to testify as to “why a child [victim] might not disclose”

was cumulative of testimony from a detective who discussed the

meaning of the term “delayed outcry.” See People v. Banuelos, 674

P.2d 964, 967 (Colo. App. 1983) (holding that the trial court did not

abuse its discretion by declining to impose sanctions when it

determined that the untimely disclosed information was cumulative

and immaterial to the outcome of the trial).

20
¶ 45 Third, both the court’s instruction to the jury that the opening

statements were not evidence and the curative instruction and final

jury instruction that the jury should not consider for any reason the

court’s decision not to permit a witness to testify mitigated any

prejudice. See People v. Owens, 2024 CO 10, ¶ 128 (“We presume

that the jury understands and will follow a trial court’s curative

instructions, absent evidence to the contrary.”).

¶ 46 Fourth, the court granted Applehans’s request when it

sanctioned the prosecution by disqualifying Miller from testifying.

See People v. Grant, 2021 COA 53, ¶ 44. And Miller’s exclusion was

a drastic option that generally favored Applehans, as Miller’s expert

testimony was being offered against him. See Whittington, ¶ 20

(“[W]e have recently emphasized that a court should generally avoid

excluding evidence as a sanction because exclusion is a drastic

remedy that may affect the outcome of the trial, provide a windfall

to the party against whom the evidence would have been offered, or

otherwise hinder the search for the truth.”).

3. Medical Report for A.C.

¶ 47 Applehans also claims that the trial court abused its

discretion by not granting a mistrial for the prosecution’s failure to

21
disclose a medical report that described statements made by A.C.

This is because, according to Applehans, the discovery violation

prevented the defense from consulting or retaining an expert or

interviewing those involved with the report. And the court’s denial

purportedly demonstrated a broader pattern of the court favoring

the prosecution.

a. Additional Facts

¶ 48 After A.C.’s outcry, the police conducted a forensic interview,

which was recorded and played at trial. In the interview, A.C. said

that Applehans sexually assaulted her by touching her breasts and

vagina, and by digitally penetrating her vagina. She further stated

that the digital penetrations “hurt.”

¶ 49 A.C. testified at trial that the digital penetrations by Applehans

made her feel “uncomfortable.” A detective then testified that, after

the forensic interview, A.C. refused a physical examination and no

SANE exam was performed.4 However, in response to a jury

question, the detective also stated that A.C. had spoken with a

medical professional, who in turn had written a medical report that

4 A sexual assault nurse examiner, or SANE, exam is a specific type

of medical exam done to collect evidence from a sexual assault.

22
the detective had attached to his case file. The report, written by a

nurse practitioner, stated that A.C. “denie[d] experiencing any pain”

from the digital penetration “and denie[d] having any worries or

concerns about her body as a result.” The prosecution did not

disclose the report because the police department’s case

management system failed to transfer the medical report from the

detective’s case file to the prosecution.

¶ 50 Applehans moved for a mistrial due to the prosecution’s

discovery violation. Applehans argued that the report was material

because the impeaching statement — that A.C. did not experience

pain — contradicted her statement in the forensic interview that the

digital penetrations “hurt” her. According to Applehans, had the

report been properly disclosed, the defense would have conducted

different investigations and likely shifted its trial strategy from

focusing on the theory that law enforcement failed to conduct

adequate investigations to a theory centered on witness

suggestibility.

¶ 51 Although the court considered granting a mistrial, it ultimately

denied the motion because (1) most of the medical report contained

information that was consistent with A.C.’s forensic interview;

23
(2) the impeaching statement, while contradictory to a statement in

the forensic interview, was consistent with A.C.’s trial testimony

that she felt “uncomfortable,” without mentioning experiencing

pain; and (3) the medical report didn’t undercut the defense’s trial

strategy because the defense hadn’t limited its strategy to a single

theory.

¶ 52 Even so, as a sanction for the discovery violation, the court

ordered that it would permit Applehans to refer to the impeaching

statement in the medical report while precluding the prosecution

from mentioning the report. The defense then requested a

continuance or, alternatively, for the court to instruct the jury that

A.C. had once denied experiencing any pain from the assaults. The

court denied the continuance but granted the request for the jury

instruction over the prosecution’s objection. The jury instruction

stated that “[i]n a report made by [A.C.] after the forensic interview,”

A.C. had “denie[d] experiencing any pain” from Applehans “coming

into her room at night to touch her private parts.”

24
b. The Discovery Sanction for the Prosecution’s Failure to
Produce the Medical Report Was Not an Abuse of Discretion

¶ 53 We reject Applehans’s contention that the trial court abused

its discretion by denying the motion for a mistrial based on the

factors a court should consider when fashioning discovery

sanctions. See Whittington, ¶ 17.

¶ 54 First, the court appropriately elected to fashion curative

measures, as opposed to punitive measures, because the

prosecution did not act in bad faith, as the prosecutors were

unaware that the medical report had not been transferred from the

police case management system. See id. at ¶ 19.

¶ 55 Second, the extent of the prejudice was limited because the

only prejudicial part of the report was the impeaching statement

that A.C. experienced no pain from the digital penetrations. And

while that statement was inconsistent with her statement in the

forensic interview, the impeaching statement was consistent with

A.C.’s trial testimony that the digital penetrations made her feel

“uncomfortable,” as uncomfortable could be reasonably interpreted

to mean not physically painful.

25
¶ 56 Further, the medical report did not fundamentally undermine

Applehans’s trial strategy by undercutting his core theory of

defense. As the trial court noted, Applehans had already elicited

evidence and testimony through cross-examination that supported

both a theory of a lack of police investigation and a theory of

witness suggestibility. Thus, he had not favored the theory of a lack

of police investigation — which he alleges the medical report

undermined — to the exclusion of the theory of witness

suggestibility. And so the statement in the medical report didn’t

undercut his theory of defense. If anything, it served to strengthen

one of the two theories he pursued.

¶ 57 Third, the trial court mitigated any prejudice by providing a

curative instruction establishing that A.C. made the impeaching

statement after the forensic interview. Cf. Tillery, 231 P.3d at 43

(holding that the jury was presumed to have followed a curative

instruction to disregard improper testimony). That the court

granted the instruction at Applehans’s request further shows that

the court did not have a pattern of favoring the prosecution.

¶ 58 Fourth, the trial court considered Applehans’s request for a

mistrial but found that such a drastic remedy was not warranted

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given that the impeaching statement did not directly contradict

A.C.’s trial testimony. See id. (“Because the trial court is in a better

position to evaluate any adverse effect of improper statements or

testimony on a jury, it has considerable discretion to determine

whether a mistrial is warranted.”); see also People v. Salas, 2017

COA 63, ¶ 9 (“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.’” (quoting People v.

Abbott, 690 P.2d 1263, 1269 (Colo. 1984)). The record supports the

court’s finding on this point.

D. Motion to Amend

¶ 59 Applehans contends that the trial court erred by granting the

prosecution’s motion to amend the complaint and information,

which was filed on the third day of trial. We are unpersuaded.

1. Standard of Review and Applicable Law

¶ 60 We review a trial court’s decision on a motion to amend for an

abuse of discretion. Fisher v. People, 2020 CO 70, ¶ 13.

¶ 61 Crim. P. 7(e) states, in relevant part, that “the court may

permit [an information] to be amended as to form at any time before

the verdict or finding if no additional or different offense is charged

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and if substantial rights of the defendant are not prejudiced.”

Accordingly, a court may grant such permission to the prosecution

after the trial has begun “if the amendment (1) [is] one of form,

(2) [does] not charge an additional or different offense, and (3) [does]

not prejudice [the defendant’s] substantial rights.” Fisher, ¶ 15

(fourth alteration in original) (quoting People v. Washam, 2018 CO

19, ¶ 16)).

¶ 62 In considering such an amendment, Rule 7(e) “does not ask

how much the defendant has been prejudiced. Rather, the rule

asks whether a defendant’s substantial rights have been prejudiced

at all.” Id. at ¶ 17 (third emphasis added). Whether a defendant’s

substantial rights are prejudiced involves an examination of the

totality of the circumstances in each case. Id. at ¶ 18. Relevant

factors for this examination include, but are not limited to, (1) the

theory of the defense; (2) the timing of the amendment; and

(3) whether the amendment requires a different defense strategy.

Id.

2. Additional Facts

¶ 63 The prosecution’s initial complaint and information charged

Applehans with four counts of assaulting A.C. between 2016 and

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2020. The information charged Applehans with assaulting K.B. in

2018 in the remaining two counts.

¶ 64 The trial testimony indicated that the assault on K.B. occurred

during one summer when K.B. visited A.C. for a week. Yet, some

witnesses were uncertain of the precise year of the visit, testifying

that it occurred in 2019 or merely in a year before 2020.

¶ 65 On the third day of trial, the prosecutor moved to amend the

counts to state that Applehans assaulted K.B. between June 1,

2018, and August 31, 2019, to conform with the testimony.

Applehans objected on the general grounds that the amendment

disrupted his theory of the case, ability to investigate, and defense

strategy. But the court ruled that Applehans’s objections did not

show any prejudice because the changed timeframe was not a

material element of the charges involving K.B.

¶ 66 However, the court permitted defense counsel to take forty-five

minutes to review Applehans’s cell phone and determine whether

defense counsel could then make an offer of proof that there was

evidence supporting an alibi defense for the amended timeframe.

¶ 67 After defense counsel made no offer of proof, the court granted

the motion to amend. The court ruled that the amendment did not

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prejudice Applehans because (1) Applehans’s objections failed to

show any specific or particular prejudice to his case, and (2) the

time period in the amendment fell within the timeframe for the

counts involving A.C.

3. The Trial Court Did Not Abuse Its Discretion
by Granting the Motion to Amend

¶ 68 The trial court did not abuse its discretion because the

amendment was one of form, did not charge an additional or

different offense, and did not prejudice Applehans’s substantial

rights under the totality of the circumstances. See id.; see also

People v. Walker, 321 P.3d 528, 544 (Colo. App. 2011) (“[A] change

in the date of an offense is a matter of form, especially where, as

here, the limitations period has not yet run.”), aff’d in part and

vacated in part on other grounds, 2014 CO 6.

¶ 69 On the last point, there was no prejudice to Applehans’s

substantial rights for two reasons. First, Applehans’s theory of

defense was not affected because the prosecution did not introduce

an entirely new timeframe for the crimes. Unlike in Fisher, where

an amendment prejudicially extended the timeframe of the charges

beyond the time period for which the defendant had prepared an

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alibi defense, Fisher, ¶ 20, here, the amendment only extended the

timeframe for the charges involving K.B. to overlap with the existing

timeframe for the other counts involving A.C. And in any case,

Applehans did not present an alibi for the timeframe involving A.C.

See Washam, ¶ 30.5

¶ 70 Second, the amendment did not require a different defense

strategy because the year in which K.B.’s visit took place was not a

material element of the offenses. Specifically, the trial court found

that it appeared undisputed that the alleged assault on K.B.

occurred when she visited A.C. in Colorado during a certain

summer before 2020, and that both K.B. and A.C. were assaulted

on the same night. Applehans thus had sufficient notice to prepare

a defense because the offenses involving A.C. included that A.C.

was present for the assault on K.B., and the assault on K.B.

5 We are further unpersuaded by Applehans’s claims that he was

prejudiced by only having forty-five minutes to research an alibi
defense related to K.B. The court, in no uncertain terms, gave
Applehans forty-five minutes to consider whether he could make an
offer of proof, not forty-five minutes to fully investigate his defense.
The fact that Applehans responded by merely reiterating general
and speculative claims of prejudice fails to demonstrate an abuse of
discretion. See People v. Washam, 2018 CO 19, ¶ 30 (holding that
amendment did not prejudice the defendant who provided no
“specific argument of prejudice”).

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happened within the timeframe in which the assaults against A.C.

occurred. See People v. Metcalf, 926 P.2d 133, 140 (Colo. App.

1996) (ruling that an amendment to the information’s timeframe did

not prejudice the defendant where “the date of the offense was not a

material element of the offense, was not an issue at trial, and the

amendment did not involve an altered accusation or require a

different defense strategy”).

E. Cumulative Error

¶ 71 Applehans asserts that the cumulative effect of the alleged

errors require reversal.

¶ 72 “Though an error, when viewed in isolation, may be harmless

or not affect the defendant’s substantial rights, reversal will

nevertheless be required when ‘the cumulative effect of [multiple]

errors and defects substantially affected the fairness of the trial

proceedings and the integrity of the fact-finding process.’”

Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting People v.

Lucero, 615 P.2d 660, 666 (Colo. 1980)). However, “[t]he doctrine of

cumulative error requires that numerous errors be committed, not

merely alleged.” People v. Conyac, 2014 COA 8M, ¶ 152. Therefore,

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we reject Applehans’s contention because we discern no error in the

trial court’s rulings challenged on appeal.

III. Disposition

¶ 73 The judgment of conviction is affirmed.

JUDGE DUNN and JUDGE LIPINSKY concur.

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