Peo v. Knudtson

22CA1800 Peo v Knudtson 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1800
Weld County District Court No. 20CR1252
Honorable Marcelo A. Kopcow, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason Phillip Knudtson,

Defendant-Appellant.

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

Division VI
Opinion by JUDGE TOW
Yun and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Jacey DeHoyos, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, 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, Jason Phillip Knudtson, appeals the judgment of

conviction entered on a jury verdict finding him guilty of three

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

(SAOC-POT) and one count of aggravated incest. We affirm the

judgment in part and vacate it in part, and we remand the case

with directions.

I. Background

¶2 At trial, the jury heard evidence that would support the

following findings.

¶3 In 2015, Knudtson’s stepson, T.K., filed a police report alleging

that Knudtson sexually abused him regularly from the age of seven

to nineteen. Detective Doug Slocum led the investigation into T.K.’s

allegations. After concluding his initial investigation, Detective

Slocum submitted his report to his supervisor. Detective Slocum’s

supervisor did not forward the report to the District Attorney’s

Office (DA’s office), however, and T.K.’s claim remained dormant for

approximately five years. In 2020, T.K. followed up with the DA’s

office to find out why his case had not been pursued. The DA’s

office discovered that it never received T.K.’s case file and contacted

the police department to request the relevant report.

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¶4 After reviewing Detective Slocum’s report, the prosecution

charged Knudtson with five counts of SAOC-POT (counts one

through five), one count of aggravated incest, and one count of

sexual exploitation of a child. Counts one and two encompassed

any instances of sexual abuse that occurred within specific date

ranges.1 Count one also included a sentence enhancer alleging that

T.K. was “a person with less than fifteen years of age during the

time period charged for this offense.”

¶5 Counts three, four, and five introduced specific acts to support

each charged count. Count three addressed an incident during

which Knudtson allegedly assaulted T.K. in his bedroom under the

pretense of rubbing T.K.’s injured back when T.K. was ten years old

(the backrub incident). Count four addressed an incident during

which Knudtson allegedly assaulted T.K. in their family home after

visiting the pool when T.K. was fifteen years old (the post-swimming

incident). And count five addressed an incident during which

1 The date ranges for counts one and two overlapped as charged.

Count one encompassed any sexual abuse that T.K. was subject to
from the age of seven to fourteen. Count two encompassed any
sexual abuse that T.K. was subject to from the age of seven to
seventeen.

2
Knudtson allegedly assaulted T.K. in the shower at their family

home when T.K. was between fourteen and sixteen years old (the

shower incident).

¶6 Each SAOC-POT charge included a sentence enhancer

interrogatory instructing the jury to determine whether Knudtson

committed the assault as part of a pattern of sexual abuse. The

jury was instructed that a pattern of sexual abuse existed if the

prosecution proved beyond a reasonable doubt “the commission of

two or more incidents of sexual contact involving a child when such

offenses are committed by an actor upon the same victim.”

¶7 Following a jury trial, Knudtson was found guilty of SAOC-POT

on counts one, two, and three but acquitted on counts four and

five. The jury found that T.K. was under the age of fifteen during

the date range charged in count one. But the jury did not find that

Knudtson committed the assault as part of a pattern of sexual

abuse on any of the counts. The jury also found Knudtson guilty of

aggravated incest but acquitted on the charge for sexual

exploitation of a child. The court sentenced Knudtson to four

indeterminate terms of eight years to life in the custody of the

Department of Corrections, to be served concurrently and to be

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followed by an additional mandatory parole period of twenty years

to life.

II. Proposed Witness Testimony

¶8 Knudtson argues the trial court erred when it precluded

defense counsel from calling a witness to present testimony

intended to rebut and impeach Detective Slocum. We disagree.

A. Additional Background

¶9 On the first day of the trial, the prosecution requested that the

court preclude any inquiry into the “mental processes and decision

making processes of the . . . [p]olice [d]epartment, and/or the DA’s

office.” The prosecutor clarified his position by stating that “it [is]

not admissible whether the DA’s office thought a case was fileable

or not, or whether a particular detective thought the case was

fileable or not.” Defense counsel countered that “it [was] a

reasonable inference that when the case filing went up the line from

Detective Slocum to his superiors, that they made a decision that it

was not a sufficiently proven case to be turned over to the DA’s

office,” and that “an explanation is due . . . for the five-year gap.”

The court concluded that the opinions of law enforcement and the

DA’s office concerning “whether they thought this was a strong case

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or not, or whether charges should be filed or not, is not relevant to

this jury’s determination as to whether the prosecutor can prove all

of the evidence beyond a reasonable doubt.” The court permitted

counsel to inquire about the lack of investigation from 2015 to 2020

as long as it did not touch on the opinions of law enforcement and

the DA’s office.

¶ 10 During opening statements, the prosecution addressed the

five-year gap, explaining that when T.K. initially reported the

assault in 2015, he “was told . . . [Detective Slocum would] send

[the report] up the line, and . . . [his supervisors would] look at it for

possible filing of charges with the DA’s [o]ffice.” On direct, T.K.

testified that after reporting the alleged assault to the police

department, he “was under the impression that they were going to

be sending this information over to the District Attorney’s office.”

¶ 11 On direct examination, Detective Slocum testified that upon

completing his investigation, he submitted the report to his

supervisor and indicated in it that “he wish[ed for] this report to be

now forwarded to the District Attorney’s office for review and a filing

decision.” Detective Slocum explained that, normally, “once [the

report] reaches a supervisor, they approve the report [a]nd they

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would forward the entire investigation to the District Attorney’s

Office.” Detective Slocum testified that he expected to hear back

from the DA’s office about whether charges would be filed, but

never did, and that he did not follow up on T.K.’s case until the

DA’s office reached out in 2020. A review of the police department’s

record management system showed there were no other logs on the

case apart from Detective Slocum’s submission to his supervisor

five years earlier.

¶ 12 On cross-examination, defense counsel asked Detective

Slocum whether he told T.K.’s former counsel, Brian Bagley, “that

[he was] not going to file the case.” Detective Slocum denied this

and asserted that he told Bagley he would refer it to the DA’s office.

Defense counsel requested that they be allowed to call Bagley as an

unendorsed witness to testify that Detective Slocum told him that

he would not be filing the case. The prosecution objected on the

grounds that the proposed testimony was inadmissible because it

went to the issue of law enforcement’s thought processes, which the

court had already deemed irrelevant. The prosecution additionally

argued that defense counsel raised this issue and that Bagley

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should have been endorsed as a witness if that was counsel’s

intended strategy.

¶ 13 The court denied defense counsel’s request to call Bagley. The

court explained that Bagley’s lack of endorsement as a witness

created a procedural issue. The court also noted that Bagley’s

proposed testimony was irrelevant under CRE 401 because “the

officer’s lay opinion as to why he believes a case should or should

not have been filed asserts the role of the jury . . . [, and] it is

irrelevant whether the officer believed there was enough evidence.”

Finally, the court concluded that the testimony was also excludable

under CRE 403 because “the probative value of that information

is . . . substantially outweighed by the unfair prejudice.”2

B. CRE 401 and CRE 403

¶ 14 Knudtson contends the trial court abused its discretion by

concluding that Bagley’s proffered testimony was irrelevant, and

2 In its oral findings, the trial court stated that it “find[s] that the

probative value of that information is not substantially outweighed
by the unfair prejudice.” As Knudtson acknowledges in his opening
brief, context makes clear that the court unintentionally included
the word “not,” given the court’s denial of defense counsel’s request
and its citation to CRE 403, which allows the court to exclude
relevant evidence “if its probative value is substantially outweighed
by . . . unfair prejudice.”

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therefore inadmissible, despite the prosecution’s “opening of the

door” to the matter. Additionally, Knudtson argues that the trial

court abused its discretion by finding that Bagley’s testimony would

be more prejudicial than probative.

1. Standard of Review and Applicable Law

¶ 15 “We review a trial court’s determination regarding the

admissibility of evidence for an abuse of discretion.” People v. Lane,

2014 COA 48, ¶ 21. “A trial court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair.” Id.

¶ 16 Only relevant evidence is admissible. CRE 402. Relevant

evidence is “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” CRE 401. And relevant evidence may still be excluded

“if its probative value is substantially outweighed by the danger of

unfair prejudice.” CRE 403. Trial courts are given considerable

discretion in determining whether the probative value of evidence

outweighs its prejudicial effect. People v. Rath, 44 P.3d 1033, 1043

(Colo. 2002).

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¶ 17 “A party may open the door to otherwise inadmissible evidence

by presenting incomplete evidence on a subject.” People v.

Heredia-Cobos, 2017 COA 130, ¶ 20. “The concept of ‘opening the

door’ represents an effort by courts to prevent one party in a

criminal trial from gaining and maintaining an unfair advantage by

the selective presentation of facts that, without being elaborated or

placed in context, create an incorrect or misleading impression.” Id.

(quoting People v. Murphy, 919 P.2d 191, 195 (Colo. 1996)). But the

concept is not unlimited. People v. Cohen, 2019 COA 38, ¶ 23.

Once a party opens the door, the opponent may inquire into the

“otherwise inadmissible rebuttal evidence ‘. . . only to the extent

necessary to remove any unfair prejudice which might otherwise

have ensued from the original evidence.’” Id. (quoting United States

v. Martinez, 988 F.2d 685, 702 (7th Cir. 1993)).

2. Analysis

¶ 18 Knudtson does not appear to argue that evidence of Detective

Slocum’s intent to file charges (or lack thereof) was relevant in and

of itself. Nor can he. It is well established that a police officer’s

belief regarding whether there is probable cause to arrest or charge

a defendant is not relevant to whether the prosecution has carried

9
its burden of proof.3 See Howard-Walker v. People, 2019 CO 69,

¶¶ 33, 42.

¶ 19 Instead, Knudtson contends the trial court abused its

discretion because the prosecution opened the door to the issues

implicated in Bagley’s proposed testimony. Specifically, Knudtson

contends the prosecution opened the door to Bagley’s testimony

when (1) the prosecutor “suggest[ed] in [his] opening statement that

Detective Slocum had intended to seek charges against Knudtson in

2015”; (2) “T.K.’s direct-examination testimony suggest[ed] that

police told him the case would be forwarded to the District

Attorney’s office”; and (3) Detective Slocum testified that “he tried to

have the case forwarded to the District Attorney’s office for a filing

decision.” Knudtson argues that these statements made Bagley’s

testimony relevant because it could be used to rebut and impeach

Detective Slocum’s testimony and generally impeach his credibility,

3 This rule is more often invoked by defendants objecting to

“screening” testimony. See People v. Mendenhall, 2015 COA 107M,
¶ 62 (“When probable cause to charge a defendant is not at
issue . . . the prosecution’s presentation of evidence about charging
decisions may imply that, because of a pretrial screening process,
only guilty parties are charged with crimes and thus the defendant
must be guilty.”). Nevertheless, there is no reason it would not
apply equally to a belief in the lack of a case’s strength.

10
and it would cast doubt on the suggestion that police told T.K. that

his case would be forwarded to the DA’s office.

¶ 20 We disagree that the identified statements opened the door to

Bagley’s testimony. The prosecution’s opening statement did not

suggest that Detective Slocum “intended to seek charges.” Instead,

the prosecution explained that the “ball got dropped” by the police

department after T.K. left the station with the understanding that

the report would be “sent up the line for the possible filing of

charges.” (Emphasis added.) This information fell within what the

court deemed relevant — namely, an explanation for the five-year

gap between the initial report and subsequent charges.

Furthermore, Detective Slocum later clarified that he had no control

over whether charges were filed, as that decision ultimately rests

with the DA’s office.

¶ 21 T.K.’s testimony that he was informed that the report would be

sent up the chain similarly did not touch on the officer’s belief, or

disbelief, in T.K.’s allegations. It simply reflected T.K.’s

understanding that the next step in the process would involve the

DA’s office considering pressing charges against Knudtson.

11
¶ 22 And Detective Slocum’s testimony that he tried to have the

case forwarded did not provide insight into his own beliefs regarding

the merits of the case. In fact, in the same line of questioning,

Detective Slocum acknowledged that “sending it up the line” and

“indicating that it should be forwarded to the District Attorney’s

office for review and a filing decision” was a standard practice at the

police department.

¶ 23 In sum, all the statements that Knudtson contends opened the

door simply addressed the five-year gap and general practices of the

police department. None of them touched on the mental processes

of the officers.

¶ 24 Conversely, defense counsel acknowledged that Bagley’s

proffered testimony would have “announced that [Detective Slocum

stated] that he was not filing the case.” This is precisely the kind of

irrelevant screening testimony that trial courts have repeatedly

been instructed to preclude. See People v. Mendenhall, 2015 COA

107M, ¶ 62. Bagley’s proposed testimony was offered to prove that

Detective Slocum did not believe T.K.’s case should be filed, which

the court correctly concluded was irrelevant to the “jury’s

12
determination as to whether the prosecutor can prove all of the

evidence beyond a reasonable doubt.”

¶ 25 And while Knudtson argues that Detective Slocum’s claim that

he tried to have the case forwarded “implied that he believed T.K.’s

allegations were sufficiently credible for charges,” as previously

noted, Detective Slocum explained that the DA’s office, not the

police department, had the authority to pursue charges.

¶ 26 Finally, we acknowledge that generally, where a witness has

made a previous statement inconsistent with his testimony at trial,

the inconsistency may be shown by competent evidence and used to

impeach the witness. § 16-10-201, C.R.S. 2024. But even if

Detective Slocum had told Bagley he did not intend to file the case,

any impeachment based on this statement would go solely to

Detective Slocum’s credibility as to his belief in the strength of the

case, which — as we have noted — has absolutely no relevance.

Thus, we also reject Knudtson’s argument that the trial court

abused its discretion in finding Bagley’s testimony was more

prejudicial than probative.

¶ 27 In sum, the trial court’s decision to reject Bagley’s testimony

was not manifestly arbitrary, unreasonable, or unfair. Id.

13
¶ 28 Given our conclusion that the trial court did not abuse its

discretion in denying Bagley’s testimony under CRE 401 and CRE

403, we need not address whether calling Bagley as an unendorsed

witness required endorsement, or in the alternative, whether the

court was required to consider the Pronovost factors in precluding

defense counsel from calling him. See People v. Pronovost, 773 P.2d

555, 558 (Colo. 1989).

III. Merger

¶ 29 Knudtson next raises an unpreserved argument that double

jeopardy requires the merger of his three convictions for SAOC-POT

into one. We agree that two of the SAOC-POT convictions must be

vacated.

A. Standard of Review and Applicable Law

¶ 30 We review de novo whether merger of multiple criminal

offenses is required. Whiteaker v. People, 2024 CO 25, ¶ 9. The

principle of double jeopardy in the United States and Colorado

Constitutions protects individuals from multiple punishments for

the same offense absent express statutory authorization. Woellhaf

v. People, 105 P.3d 209, 214 (Colo. 2005); U.S. Const. amends. V,

XIV; Colo. Const. art. II, § 18. Merger is the remedy for

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multiplicitous punishments entered in violation of double jeopardy

principles. Whiteaker, ¶ 24.

¶ 31 Where prosecution involves distinct offenses premised upon

violation of the same statute, we must ask “(1) whether the unit of

prosecution prescribed by the legislature permits the charging of

multiple offenses; and (2) whether the evidence in support of each

offense justifies the charging of distinct offenses.” Quintano v.

People, 105 P.3d 585, 590 (Colo. 2005).

¶ 32 In addressing the first prong, “[t]he General Assembly has

defined . . . the unit of prosecution [for SAOC as] ‘any sexual

contact.’” Woellhaf, 105 P.3d at 216. Sexual contact means “[t]he

knowing touching of the victim’s intimate parts by the actor, or of

the actor’s intimate parts by the victim.” § 18-3-401(4)(a), C.R.S.

2024. Thus, in punishing SAOC, “the legislature only authorized a

single punishment for all discrete acts of touching that occur within

a single incident.” Quintano, 105 P.3d at 590.

¶ 33 For the second prong, “we look to all the evidence introduced

at trial to determine whether the evidence on which the jury relied

for conviction was sufficient to support distinct and separate

offenses.” Id. at 592.

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B. Analysis

¶ 34 Knudtson contends his convictions on counts one, two, and

three were not based on factually distinct offenses because each

conviction was predicated on a single incident — namely, the

backrub incident addressed in count three. In support of this

conclusion, Knudtson points out that “the charged timeframe for

count three was fully included in the charged timeframes for counts

one and two,” meaning that verdict forms permitted a finding of

guilt on all three counts if the jury found the backrub incident took

place. And more compelling is Knudtson’s recognition of the fact

that “the jury acquitted Knudtson of the specific SAOC-POT

incidents charged in counts four and five, and it rejected the

pattern of abuse enhancer for counts one, two, and three.”

¶ 35 The People counter that “there was ample discrete evidence

the jury could have relied on in finding each charge proven beyond

a reasonable doubt.” They contend that the inconsistency between

the verdicts and the interrogatories evidences a jury compromise,

which is not error. The People also argue that “[a]bsent evidence to

the contrary, we presume the jury understood and followed the

court’s instructions.” Washington v. People, 2024 CO 26, ¶ 31. The

16
trouble is, the People ignore what the jury was instructed — and

what it was not.

¶ 36 During the instruction phase, the jurors were told that, in

order to convict Knudtson of SAOC-POT, they “must either

unanimously agree that the defendant committed the same act or

acts, or that the defendant committed all of the acts described.”

Such a unanimity instruction is required when the prosecution

chooses not to elect specific acts in a given charge. Thomas v.

People, 803 P.2d 144, 152 (Colo. 1990). But notably — and fatally

to the People’s position on appeal — the jury verdict forms for

counts one and two did not repeat the instruction and did not ask

the jury to either note which act or acts it found were committed or

state that it unanimously found that all of the acts described by

T.K. were committed. Thus, if the verdict forms for counts one and

two were, as the People now argue, intended to encompass the more

generalized description of abuse over the years, the verdicts would

necessarily fail for lack of unanimity.

¶ 37 Instead, the jury was instructed to decide for each offense

whether Knudtson committed the sexual assault as part of a

pattern of abuse, meaning that the prosecution proved beyond a

17
reasonable doubt “the commission of two or more incidents of

sexual contact” committed by Knudtson on T.K. In rejecting this

sentence enhancer, the jury necessarily found that the prosecution

proved one — and only one — incident of sexual assault. And given

that the jury acquitted Knudtson of counts four and five, which

involved the post-swimming incident and the shower incident, the

only incident of sexual assault on which the jury’s conviction could

have been based is the backrub incident reflected in count three. It

follows that because count three fell within the time range specified

by counts one and two, the jury’s conviction on all three counts was

based solely on the backrub incident and nothing else.

¶ 38 We agree with Knudtson that the interrogatories are not

inconsistent with the verdicts; rather, they are consistent “if, and

only if, each SAOC guilty verdict was based on the same act” — the

backrub incident. Presuming the jury followed the instructions, see

Washington, ¶ 31, we must infer that the jury could only

unanimously agree on one of the incidents of abuse T.K. described:

that the backrub incident occurred; that T.K. was ten at the time;

and thus this incident supported a verdict of guilty on each of the

first three counts.

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¶ 39 Because the jury found Knudtson guilty of a single act of

sexual contact — and thus a single unit of prosecution — he can

only stand convicted of a single offense. See Whiteaker, ¶ 24.

IV. Disposition

¶ 40 We vacate Knudtson’s convictions and sentences for counts

two and three of the SAOC-POT charges4 and remand to the trial

court with directions to merge these offenses with count one and to

correct the mittimus accordingly. In all other respects, the

judgment is affirmed.

JUDGE YUN and JUDGE GRAHAM concur.

4 We agree with Knudtson and the People that the merger of counts

two and three into count one, which included a sentence enhancer
for sexual contact with a child under fifteen, is the proper remedy to
give the maximum effect to the jury’s verdict. See Halaseh v.
People, 2020 CO 35M, ¶ 10.

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