Peo v. Fleming

22CA0848 Peo v Fleming 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0848
Garfield County District Court No. 18CR513
Honorable John F. Neiley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kasey Lynn Fleming,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE GROVE
Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kasey Lynn Fleming, appeals the judgment of

conviction entered after a jury found him guilty of two counts of

sexual assault on a child. We affirm.

I. Background

¶2 A reasonable jury could have found the following facts based

on the evidence presented at trial.

¶3 T.L., age nine, and L.L., age eleven, were at a store with their

mother, D.L., and a friend, M.I. In the store, the children separated

from D.L. and went to the toy section. There, a man grabbed T.L.’s

butt then immediately apologized. L.L. and M.I. did not see the

man touch T.L., but shortly after, the man also grabbed L.L.’s butt.

When L.L. told T.L. that the man grabbed her butt, T.L. thought it

was not an accident. The girls called D.L. and told her what

happened. D.L. then told the store security, and security — upon

looking through footage — recognized the man matching the girls’

description as Fleming, the husband of one of the store’s

employees.

¶4 Fleming was charged with two counts of sexual assault on a

child, along with five habitual criminal counts. A jury found

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Fleming guilty on both sexual assault counts, and the court

subsequently adjudicated him a habitual criminal. The court

sentenced Fleming to two consecutive mandatory terms of twenty-

four-years-to-life in the custody of the Department of Corrections.

¶5 Fleming now appeals, arguing that (1) the court violated his

statutory and constitutional rights to a speedy trial; (2) the

prosecutor committed misconduct amounting to plain error in

closing argument; and (3) the Colorado Sex Offender Lifetime

Supervision Act (SOLSA) is unconstitutional facially and as applied.

II. Speedy Trial

¶6 Fleming contends that the trial court violated his statutory

and constitutional speedy trial rights. We conclude that Fleming

waived the statutory speedy trial issue and that there was no

violation of Fleming’s constitutional speedy trial right.

A. Additional Facts

¶7 Fleming entered not guilty pleas to two counts of sexual

assault on a child on July 11, 2019. He requested continuances in

October 2019 and January 2020. Then, in March 2020, defense

counsel moved to vacate the jury trial because the parties had

reached a disposition. However, instead of a disposition, Fleming

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moved for a substitution of counsel, and the parties agreed to

another continuance.

¶8 In May and June 2020, Fleming’s new counsel requested two

more continuances; the prosecution objected to the second request.

In July 2020, Fleming’s counsel sought yet another continuance,

which the prosecution again opposed. The court set a new trial

date for November 2020, but that setting was pushed back to April

26, 2021, due to COVID-19.

¶9 On April 19, 2021 — a week before the April 26 trial date and

less than three weeks before the statutory speedy trial deadline —

the prosecutor moved for a continuance based on the purported

unavailability of two material witnesses. According to the

prosecutor, T.L. and L.L.’s father had suffered two heart attacks in

December 2020, and the family had made plans “to go on vacation

with their father who had almost died” during the trial dates. The

prosecutor informed the court that he had “initiated [a] subpoena

request” for T.L. and L.L. several months earlier, and that he had

become aware of the family’s vacation plans “four to six weeks”

before the hearing. But he went on to explain that he had chosen

not to “personally serve [the father with the subpoenas] at his place

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of business . . . because of the age of the alleged victims, because of

the reason behind the request to go some place with his family.”

¶ 10 Over defense counsel’s objection, the trial court found that the

prosecution had established good cause for a continuance under

section 18-1-405(6)(g)(I), C.R.S. 2025. At a setting hearing the next

week, defense counsel renewed his objection to the continuance

and informed the court he was “planning on filing a formal motion

or a written motion on speedy trial outlining why in our judgment

speedy trial has run,” as well as addressing why, in his view, the

prosecutor had not exercised due diligence to ensure the

attendance of T.L. and L.L. at trial.

¶ 11 Fleming’s trial finally began on August 9, 2021. Despite his

earlier representations, defense counsel did not move to dismiss the

case on speedy trial grounds before the start of trial. However,

almost five months after trial, Fleming — now represented by the

public defender — filed a motion to dismiss for a statutory speedy

trial violation. In this motion, the public defender also alleged for

the first time that the court and prosecution had violated Fleming’s

constitutional speedy trial right. The court denied the motion,

ruling that Fleming had waived his statutory right to speedy trial by

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failing to seek dismissal before the trial began. See § 18-1-405(5).

Turning to Fleming’s constitutional speedy trial claim, the court

concluded that Fleming had not met his burden to demonstrate

that his constitutional speedy trial right was violated.

B. Statutory Speedy Trial

¶ 12 We do not reach the merits of Fleming’s statutory speedy trial

claim because he waived it by failing to move for dismissal on that

ground before trial began.

¶ 13 Under Colorado’s speedy trial statute, if a defendant’s case “is

not brought to trial . . . within six months from the date of the entry

of a plea of not guilty, . . . the pending charges shall be dismissed”

unless the statute provides otherwise. § 18-1-405(1); see People v.

Sherwood, 2021 CO 61, ¶ 21. “The burden of compliance with the

speedy trial requirement . . . rests wholly with the People and the

trial court.” Sherwood, ¶ 23.

¶ 14 A defendant waives his statutory speedy trial right, however,

by failing to move for dismissal before trial. See § 18-1-405(5);

Crim. P. 48(b)(5); People v. McMurtry, 122 P.3d 237, 242 (Colo.

2005); see also People v. Abdu, 215 P.3d 1265, 1269 (Colo. App.

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2009) (appellate challenge barred because defendant never filed a

motion to dismiss on speedy trial grounds).

¶ 15 While defense counsel objected to a setting beyond the

statutory speedy trial deadline, he never moved to dismiss Fleming’s

case on speedy trial grounds before trial began. His “[f]ailure to so

move” was “a waiver” of Fleming’s statutory speedy trial rights.

§ 18-1-405(5). To the extent that Fleming argues that his counsel’s

objections were the functional equivalent of a motion to dismiss and

sufficiently preserved the issue for appeal, we disagree. See Abdu,

215 P.3d at 1269 (declining “to construe defendant’s statement as a

motion to dismiss on speedy trial grounds”); People in Interest of

J.M.N., 39 P.3d 1261, 1263 (Colo. App. 2001) (concluding that, even

where the juvenile defendant “informed the court that he would not

waive his statutory right” to speedy trial, he nevertheless waived it

“because [he] failed to move for dismissal before the adjudicatory

trial began”).

¶ 16 We are not persuaded otherwise by Fleming’s argument that

counsel’s failure to timely file a motion to dismiss amounted to a

forfeiture rather than a waiver. See People v. Rediger, 2018 CO 32,

¶ 40 (forfeited claims may be reviewed on appeal but waiver

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extinguishes error and therefore appellate review). Counsel can

waive statutory rights. Finney v. People, 2014 CO 38, ¶ 16. And,

unlike the waiver of a fundamental constitutional right, which

requires “the intentional relinquishment of a known right or

privilege,” Rediger, ¶ 39 (citation omitted), the waiver of a statutory

right demands a less stringent showing, People v. Roberson, 2025

CO 30, ¶ 13 (“When the right at issue is a statutory right, waiver

‘must be voluntary, but need not be knowing and intelligent.’”

(quoting Finney, ¶ 16)).

¶ 17 Moreover, while “[w]aiver can be demonstrated through explicit

words or actions,” id., it can also be implied, “as when a party

engages in conduct that manifests an intent to relinquish a right or

privilege or acts inconsistently with its assertion,” Forgette v. People,

2023 CO 4, ¶ 28. Here, even assuming counsel had no obvious

strategic reason for waiving Fleming’s statutory speedy trial right,

there is little doubt that he acted inconsistently with the assertion

of that right by failing to move for dismissal after repeatedly

expressing his intent to do so. Cf. Roberson, ¶ 17 (finding implied

waiver of a statutory right to a timely restitution hearing where the

defendant failed to object when the hearing “fell outside of the

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ninety-one-day deadline and when the statutory deadline had been

expressly mentioned at the sentencing hearing”).1

¶ 18 In any event, the plain language of section 18-1-405(5) and

Crim. P. 48 is clear: failure to move for dismissal before trial is a

“waiver.” To hold otherwise by characterizing Fleming’s failure to

timely seek dismissal as a “forfeiture” would be to ignore the text of

the statute and the accompanying procedural rule. Because “we

must avoid [statutory] constructions that would render any words

or phrases superfluous,” McCoy v. People, 2019 CO 44, ¶ 38, we

cannot disregard the statute’s declaration that a failure to timely

seek dismissal amounts to a waiver.

C. Constitutional Speedy Trial

¶ 19 Fleming also contends that the trial court and prosecution

violated his constitutional right to a speedy trial. We disagree.

1 To the extent Fleming suggests that the failure to file a motion to

dismiss prior to trial amounted to ineffective assistance of counsel,
any challenge to his conviction based on that argument would be
better suited for a Crim. P. 35(c) motion. See People v. Kelling, 151
P.3d 650, 655 (Colo. App. 2006) (“[B]ecause of the need for a
developed factual record, an ineffective assistance of counsel claim
should ordinarily be raised in a postconviction proceeding, not on
direct appeal.”).

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1. Applicable Law

¶ 20 The United States and Colorado Constitutions guarantee all

criminal defendants the right to a speedy trial. U.S. Const. amend.

VI; Colo. Const. art. II, § 16. We apply a four-factor balancing test

to assess whether a defendant’s constitutional speedy trial rights

were violated, considering the following: (1) the length of the delay;

(2) the reasons for the delay; (3) the defendant’s assertion of the

right; and (4) the prejudice to the defendant. Moody v. Corsentino,

843 P.2d 1355, 1363 (Colo. 1993) (citing Barker v. Wingo, 407 U.S.

514, 530 (1972)); see also People v. Chavez, 779 P.2d 375, 376

(Colo. 1989) (noting the Barker test also governs the determination

of a speedy trial claim under the Colorado Constitution). The

defendant bears the burden of establishing that his constitutional

speedy trial rights have been denied. Moody, 843 P.2d at 1363.

¶ 21 Fleming’s constitutional speedy trial claim is unpreserved

because he raised it for the first time in a post-trial motion to

dismiss. However, unpreserved constitutional errors may be

reviewed for the first time on appeal. Reyna-Abarca v. People, 2017

CO 15, ¶ 37. Accordingly, we review Fleming’s constitutional

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speedy trial claim for plain error. See People v. Jompp, 2018 COA

128, ¶ 14.

2. Analysis

¶ 22 We conclude that the trial court did not violate Fleming’s

constitutional right to a speedy trial.

¶ 23 First, we consider the length of the delay. Although Fleming’s

trial took place nearly three years after he entered his not guilty

plea, more than two and a half years of that delay was attributable

to the defense or to COVID-19. See § 18-1-405(6)(f) (delays to

accommodate defense counsel are attributable to the defendant);

see also United States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023)

(delays caused by COVID-19 cannot “fairly be attributed” to either

the prosecution or defense). The prosecution sought only one

continuance, which moved Fleming’s trial from April 2021 to

August 2021 — a fourth month delay. This relatively short delay

weighs against finding a constitutional speedy trial violation.

¶ 24 Second, we consider the reason for the delay. Again, because

the delays prior to April 2021 were attributable to the defense or to

COVID-19, they weigh against a constitutional violation. Vermont v.

Brillon, 556 U.S. 81, 90 (2009) (delay caused by the defense “weighs

10
against the defendant”). Only the final April 2021 continuance is

attributable to the prosecution. We do have concerns about that

continuance, and question whether the prosecutor exercised due

diligence by choosing not to interfere with the victims’ family

vacation plans. Nonetheless, the delay attributable to the sole

continuance requested by the prosecution amounted to only four

months.

¶ 25 Third, we consider Fleming’s assertion of the right. Although

Fleming did not file a motion to dismiss on speedy trial grounds

before trial began, he did assert his right through multiple

objections and a post-trial motion. Thus, Fleming’s assertion of his

right weighs slightly in favor of a speedy trial violation.

¶ 26 Fourth, we consider whether Fleming was materially

prejudiced by the delay. Prejudice is assessed by weighing three

interests that the right to speedy trial protects: “(i) to prevent

oppressive pretrial incarceration; (ii) to minimize anxiety and

concern of the accused; and (iii) to limit the possibility that the

defense will be impaired.” Moody, 843 P.2d at 1367 (quoting

Barker, 407 U.S. at 532). As to the first interest, Fleming was out

11
on bond for at least part of the pretrial period.2 This weighs against

prejudice as he did not experience “oppressive pretrial

incarceration.” Id. As to the second, although we recognize that a

lengthy pretrial delay may generate anxiety, Fleming offered no

explanation of how the delay caused him any greater anxiety or

concern than the average defendant. Furthermore, he failed to

provide any specific examples of how his anxiety, concern, or

distress prejudiced him. See People v. Nelson, 2014 COA 165, ¶ 41

(noting that the defendant “presented no evidence or offer of proof

to establish any such anxiety or concern beyond that normally to be

expected from the fact of a criminal prosecution”). As to the third,

while a delay of almost three years certainly could have affected

Fleming’s ability to defend himself, most of the delay was

attributable to the defense and nothing in the record supports that

a single four-month continuance requested by the prosecution

impaired Fleming’s case.

2 The record suggests that, during periods that he was not out on

bail, Fleming was incarcerated on other charges at various times
during the pendency of his case. As these circumstances were
unrelated to the charges at issue here, they have no bearing on
whether Fleming suffered oppressive pretrial incarceration.

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¶ 27 Balancing the four Barker factors, we conclude the court did

not violate Fleming’s constitutional right to a speedy trial.

III. Prosecutorial Misconduct

¶ 28 Fleming contends that the prosecution committed misconduct

during closing argument. We reject Fleming’s argument under

plain error review.

A. Standard of Review and Applicable Law

¶ 29 We review prosecutorial misconduct that violates a defendant’s

constitutional rights de novo. People v. Castro, 2022 COA 101,

¶ 21. In doing so, we consider whether the alleged misconduct was

improper based on the totality of the circumstances and whether it

warrants reversal. People v. Van Meter, 2018 COA 13, ¶ 23. When

a defendant fails to object to the alleged misconduct, as here, we

review for plain error, reversing only if the error is obvious and

substantial. Hagos v. People, 2012 CO 63, ¶ 14. To rise to the level

of plain error, prosecutorial misconduct must be flagrant or

glaringly improper and so undermine the fundamental fairness of

the trial as to cast serious doubt on the reliability of the judgment

of conviction. People v. Weinreich, 98 P.3d 920, 924 (Colo. App.

2004).

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¶ 30 Although the prosecution has wide latitude in the language

and style of closing argument, People v. Rhea, 2014 COA 60, ¶ 46,

prosecutors generally cannot argue that the jury must find a

witness lied in order to acquit the defendant, People v. Cuellar, 2023

COA 20, ¶ 67 (collecting cases). However, “because arguments

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

reviewing courts accord prosecutors the benefit of the doubt when

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

2012 COA 167, ¶ 30.

B. Analysis

¶ 31 During closing argument, the prosecutor told the jury that the

defense’s theory was that the incident “was a misunderstanding”

and that “grabbing a child’s butt and squeezing it is not a knowing

act; it’s an accident, and it wasn’t for the purpose of sexual

gratification.” The prosecutor continued:

But if it’s not a misunderstanding, then the
girls and the mom have collaborated and
created everything out of thin air to falsely
accuse a man . . . So you got to ask yourself:
Who would reasonably become a character
arsonist, light a match, throw it, if they were
making it all up? If they were collaborating, if
they were game planning on how to ruin
someone, who lights a match, if that’s their

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intent and doesn’t get out of there? Because
it’s about to burn, and I don’t want to be here
when the heat becomes intense and the flames
get hot. Who remains there in that heat, in
those flames, for three years to come to you
and testify in front of you and in front of their
assaulter and the man that assaulted their
daughter? That’s a decision you’ll have to
make, whether that’s common sense.

I submit to you what you have to believe to
conclude the accused is not guilty is that these
three girls and the mom of two of them made
this all up. They created it out of thin air.
That when a 30-year-old man grabs and
squeezes the butts of a nine and eleven-year-
old girl inside Target, didn’t know what he was
doing when he grabbed and squeezed. And
that even if he did know, he didn’t have sexual
gratification. That’s what you got to believe
based on the law the court has given you.

¶ 32 During the subsequent discussion of the elements of sexual

assault, the burden of proof, and other matters, the prosecutor

made several other allegedly improper statements:

And if you consider all the evidence, you have
to conclude, unless you decide it’s made up,
you can touch little girls in Target on accident,
you can squeeze little girls’ butts in Target on
accident, and that that’s not a knowing act
and that it wasn’t done for the purpose of
sexual gratification or arousal, if you can’t
believe that then you have to believe he’s
guilty, period.

...

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And to come to a conclusion that these little
girls and their mom somehow huddled up
before they got to Target and orchestrated this
whole thing and would put their family and
themselves through the next three years of
criminal justice process, you’d have to
speculate why someone would do that. You
would have to imagine.

...

If you believe the girls, . . ., that [] Fleming
grabbed and squeezed their butts, there is no
rational or reasonable or common sense
explanation for a thirty-year-old man to do
such a thing other than for some sexual thrill
or arousal or gratification.

...

I’m going to ask you to decide who to believe,
and that’s your job, not mine. I have argued to
you today who I’m asking you to believe, but
that’s your decision. Nothing I have said is
evidence. It’s argument.

...

But once you look at all the evidence and once
you apply your common sense, there is no
other conclusion that a man thirty years old,
who in broad daylight outrageously and
brazenly grabs and squeezes the butts of two
little girls, does so for any other reason than
sexual thrill, sexual gratification. And in such
a case he’s guilty beyond a reasonable doubt
because the girls who had it happen to them
came in here and told you under oath that it
happened, and they subjected themselves to
be in the presence of their assaulter, and they

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subjected themselves to cross-examination.
He’s guilty.

¶ 33 Defense counsel did not object to any of these statements. On

appeal, however, Fleming contends that the prosecutor distorted

the burden of proof by suggesting to the jurors that they could

acquit him only if they found that the prosecution’s witnesses were

lying.

¶ 34 Even assuming the prosecutor committed obvious error by

making these statements, we cannot conclude that they so

undermined the fundamental fairness of Fleming’s trial as to cast

serious doubt on the reliability of his conviction. We reach this

conclusion for two reasons.

¶ 35 First, the challenged statements were brief. See People v.

McMinn, 2013 COA 94, ¶ 70 (finding no plain error where the

prosecutor’s comments “made up a small part of the prosecutor’s

closing argument”). The prosecutor made only fleeting statements

that the jury would “have to believe” the witnesses “made this all

up.” Further, these statements appear to have been made in direct

response to Fleming’s theory that the touching was accidental and

not for sexual gratification. Specifically, the prosecutor asked the

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jury to “decide who to believe” regarding whether the defense’s

theory comports with common sense. And the prosecutor even

acknowledged, “Nothing I have said is evidence. It’s argument.”

¶ 36 Second, the court properly instructed the jury on the

prosecution’s burden of proof and the beyond a reasonable doubt

standard. See Cuellar, ¶¶ 76-77 (prosecutor’s error in arguing the

jury must disbelieve a witness before it could acquit was harmless

in part because of the court’s proper instructions). In addition to

correctly instructing on each element of the charged offenses, the

court correctly informed the jury that it “must follow the

instructions” given, that the prosecution bore the burden of proof to

prove “each and every element” of the charged crimes “beyond a

reasonable doubt,” and that if the jury found the prosecution “failed

to prove any one or more of the elements of a crime beyond a

reasonable doubt,” it “should find the defendant not guilty of that

crime.” The court also instructed the jury that it is the “sole judge[]

of the credibility of each witness and the weight to be given to the

witness’s testimony” and that it “may believe all of the testimony of

a witness, part of it, or none of it.” Absent any evidence to the

contrary, which Fleming does not allege and which does not appear

18
in the record, “we assume the jury heeded the court’s instructions.”

People v. Villa, 240 P.3d 343, 352 (Colo. App. 2009).

¶ 37 Because the alleged error was not substantial, it does not

warrant reversal under plain error review.

IV. SOLSA

¶ 38 Fleming contends that SOLSA is unconstitutional facially and

as applied. We disagree.

A. Standard of Review and Applicable Law

¶ 39 SOLSA governs the sentencing procedures applicable to most

felony sex offenses. See § 18-1.3-1001, C.R.S. 2025. SOLSA

provides that, under certain circumstances, “the district court

having jurisdiction shall sentence a sex offender to the custody of

the department for an indeterminate term of at least the minimum

of the presumptive range specified in section 18-1.3-401 for the

level of offense committed and a maximum of the sex offender’s

natural life.” § 18-1.3-1004(1)(a), C.R.S. 2025. The

constitutionality of SOLSA is an issue of law we review de novo.

People v. Sabell, 2018 COA 85, ¶ 46.

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B. Facial Challenge

¶ 40 Fleming argues that SOLSA is facially unconstitutional

because it violates procedural due process, substantive due

process, equal protection, the prohibition against cruel and

unusual punishment, and the separation of powers doctrine. As

Fleming acknowledges, divisions of this court have rejected every

facial challenge to SOLSA’s constitutionality. See id. at ¶ 47; People

v. Relaford, 2016 COA 99, ¶ 72; People v. Torrez, 2013 COA 37, ¶

88, People v. Collins, 250 P.3d 668, 679 (Colo. App. 2010); People v.

Villa, 240 P.3d at 359; People v. Firth, 205 P.3d 445, 452 (Colo. App.

2008). We are not persuaded to depart from these decisions, and

therefore we reject Fleming’s contentions for the reasons stated

therein.

C. As-Applied Challenge

¶ 41 To prevail on an as-applied challenge, “the defendant must

show that the statute is unconstitutional under circumstances in

which the [defendant] has acted.” People v. Trujillo, 2025 COA 22, ¶

46 (citation modified). In his appellate briefing, Fleming does not

specifically address how SOLSA is unconstitutional under his

circumstances. He only broadly discusses how SOLSA impacts sex

20
offenders and that his facial constitutional challenges are

“especially apparent” when looking at SOLSA’s application to his

case. Because it is undeveloped, we decline to address his as-

applied challenge on the merits. See Antolovich v. Brown Grp.

Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007) (declining to

address underdeveloped arguments).

V. Disposition

¶ 42 The judgment is affirmed.

JUDGE YUN and JUDGE SCHOCK concur.

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