Peo v. Rigg

22CA1366 Peo v Rigg 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1366
Weld County District Court No. 10CR619
Honorable Allison J. Esser, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Rigg,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE PAWAR
Freyre and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Daniel Rigg, appeals the trial court’s denial of his

motion for a new trial after he was convicted of sexual assault on a

child by one in a position of trust as part of a pattern of abuse,

aggravated incest, two counts of sexual exploitation of a child, and

solicitation to commit tampering with evidence. We affirm.

I. Background

¶2 The factual and procedural background of this case is

described in detail in two prior opinions from this court. See People

v. Rigg, (Colo. App. No. 11CA1033, Feb. 26, 2015) (not published

pursuant to C.A.R. 35(f)) (Rigg I); People v. Rigg, (Colo. App. No.

17CA1303, Dec. 17, 2020) (not published pursuant to C.A.R. 35(e))

(Rigg II). As pertinent to this appeal, Rigg was charged with and

convicted of multiple offenses involving an inappropriate sexual

relationship he had with his adopted daughter, T.R., when she was

between the ages of eleven and fifteen. While the case was pending,

T.R. participated in three forensic interviews with police. During

the first two interviews, she denied any sexual contact with Rigg.

Between the second and third interviews, she began mandatory

therapy. Then, during the third forensic interview, T.R. made

detailed allegations against Rigg.

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¶3 Before trial, Rigg sought disclosure of T.R.’s therapy records

and requested that the trial court review them in camera.

Concluding that T.R. had not waived her psychologist-patient

privilege, the court declined to review the records and excluded

them from evidence.

¶4 The case proceeded to trial, where T.R. testified that Rigg

sexually assaulted her, used sex toys on her, took explicit

photographs of her, wrote her love letters, and hid evidence of their

affair in a safe. The prosecution presented further evidence of the

letters, photographs, and sex toys, as well as school absence and

hotel records and additional testimony suggesting that Rigg asked

others to destroy evidence of his relationship with T.R.

¶5 The defense sought to discredit T.R.’s account, arguing that

T.R. fabricated the allegations after beginning therapy because she

wanted to return to her mother’s custody and regain cell phone and

internet privileges.

¶6 The jury convicted Rigg of all but one of the charged offenses,

and the trial court sentenced him accordingly.

¶7 Following Rigg’s direct appeal and two subsequent remands in

Rigg I and Rigg II, the trial court conducted an in camera review of

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the therapy records, determined they were discoverable, and

disclosed them to the parties. Rigg then filed a motion for a new

trial based on the exclusion of the therapy records. In an oral

ruling, the trial court identified three new pieces of information

from the records that had not been available to the defense before

trial:

1. the exact date T.R. began therapy: April 21, 2010;

2. T.R.’s response on her intake form regarding what she

hoped to accomplish in therapy: “I want to get to stay

with my mom again”; and

3. a checkmark on the intake form, made by an unidentified

individual, indicating that “lying” was among their

concerns about T.R.

Considering each of these pieces of information, the theory of

defense, and the evidence introduced at trial, the court concluded

that the undisclosed records would not have undermined T.R.’s

credibility or changed the outcome of Rigg’s trial. It therefore

denied Rigg’s motion for a new trial.

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¶8 Rigg appeals, arguing that the trial court misapplied the law

and underestimated the impact T.R.’s therapy records would have

had on his defense. We disagree with both arguments.

II. Applicable Law

¶9 When a trial court conducts an in camera review of previously

undisclosed evidence and determines the evidence should have

been disclosed to the parties, it must give the defendant an

opportunity to demonstrate a reasonable probability that, had the

documents been disclosed before trial, the result of the proceeding

would have been different. See Zoll v. People, 2018 CO 70, ¶ 12.

¶ 10 A “reasonable probability” means a probability sufficient to

undermine confidence in the outcome. People v. Bueno, 2018 CO 4,

¶ 32 (in the context of Brady violations, we consider the materiality

of undisclosed evidence collectively, rather than individually).

¶ 11 We review a trial court’s decision to grant or deny a

defendant’s motion for a new trial for an abuse of discretion. People

v. Burke, 2018 COA 166, ¶ 6. A court abuses its discretion if its

decision is manifestly unreasonable, arbitrary, or unfair, or if it

misapplies the law. Id.

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III. Discussion

A. The Court Applied the Correct Legal Standard

¶ 12 Rigg argues the trial court misapplied the law in two ways.

First, he argues the court improperly placed the burden of proving

prejudice on him. He asserts that under James v. People, 2018 CO

72, ¶ 18, the prosecution bears the burden of proving the absence

of prejudice. Rigg is mistaken.

¶ 13 In Zoll, our supreme court made clear that “[i]t is the

defendant’s burden to show prejudice as a result of a trial court’s

erroneous nondisclosure” of evidence. Zoll, ¶ 11 (adopting the

approach in People in Interest of A.D.T., 232 P.3d 313 (Colo. App.

2010)). Rigg argues Zoll and A.D.T. are distinguishable because

they were based on case law involving discovery violations. But Zoll

involved the same issue presented here — the proper remedy when

a court erroneously fails to disclose evidence to the defense. By

contrast, James involved the burden of proving harmlessness in the

context of appellate review. See James, ¶ 18 (discussing “a specific

burden to persuade an appellate court of harmfulness or

harmlessness” (emphasis added)). We therefore conclude that the

standard articulated in Zoll controls, and James is inapposite.

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¶ 14 Second, Rigg argues the trial court erred by evaluating

whether the newly discovered evidence would have produced an

acquittal, rather than any different result. But the court did not

apply such a narrow standard. Instead, the trial court stated that it

was considering whether, “had the documents been disclosed before

the trial, the result of the proceeding would have been different or

Mr. Rigg would have been acquitted.” This demonstrates that the

court did not require T.R.’s therapy records to result in an acquittal

but recognized that an acquittal was one of the possible outcomes.

The court then considered the effect of T.R.’s therapy records under

the correct standard and found that the result of the proceeding

would not have been different even if the records had been

admitted. Accordingly, we conclude the court correctly applied the

law.

B. No Reasonable Probability of a Different Result

¶ 15 Next, Rigg asserts that he is entitled to a new trial because

earlier disclosure of the records would have provided substantial

evidence to corroborate his theory of defense and otherwise affected

the outcome. Because we conclude that the new evidence was

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largely cumulative of other evidence introduced at trial, we are not

persuaded.

¶ 16 As discussed, the undisclosed therapy records included the

date T.R. started therapy, her desire to return to her mother’s

custody, and a checkmark by an unidentified individual indicating

they were concerned about her truthfulness. Rigg argues he would

have used this evidence to impeach T.R.’s credibility in a case that

entirely hinged on whom the jury believed. He further argues that

earlier access to this evidence would have strengthened his attempt

to exclude T.R.’s third forensic interview as unreliable child hearsay

and enabled him to call T.R.’s therapist as a witness.

¶ 17 Although the precise date T.R. began therapy was not

introduced at trial, the jury heard — and defense counsel

emphasized — evidence that she began therapy between the second

and third forensic interviews and that T.R.’s therapist initiated the

third interview. The jury also heard evidence that, before T.R.’s

initial outcry, she wrote in her journal expressing surprise that

anyone would think she had been sexually assaulted. Defense

counsel used this evidence in closing argument to claim that T.R.’s

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therapist “coached” her “to change the story she put in her private

[diary] into something completely different.”

¶ 18 Likewise, although T.R. never directly testified that she started

therapy to return to her mother’s custody, the record supports the

trial court’s finding that T.R. wanted to go home. T.R. testified that

by the time of the third forensic interview, she had “been taken

away from [her] mother,” removed from her home, and prohibited

from using cell phones or computers. She further confirmed that,

at that point, “it was becoming clear that [she was] not going to just

get to go back and be with [her] mom.” The jury could also infer

T.R.’s desire to return to her mother’s custody from the recording of

the second forensic interview, in which T.R. asked whether she

could go home and started crying when the detective said she didn’t

know. Using this evidence, defense counsel argued in closing that

T.R. changed her story because she was “no longer the free . . .

teenager she used to be,” it was “becoming increasingly clear . . .

that the current strategy of telling the truth [wasn’t] getting her

anywhere,” and she needed to “tell them what they want[ed] to

hear.”

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¶ 19 As to the checkmark next to “lying” on the intake form, the

trial court properly determined that Rigg failed to demonstrate this

evidence was admissible in the first instance, let alone that it would

have changed the outcome of trial. It was unclear who marked this

box or whether T.R. was aware of it. Moreover, as the trial court

observed, evidence that people were concerned about T.R. lying

after her first and second forensic interviews cut both ways —

arguably to the prosecution’s advantage. True, defense counsel

might have used this evidence to argue that people in T.R.’s life

were pressuring her to change her story. But the jury could have

also inferred from this evidence that T.R. had been lying in her first

two forensic interviews, when she denied sexual assault. We

therefore conclude that, like the other details in the therapy

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records, this evidence did not create a reasonable probability of a

different outcome.1

¶ 20 We recognize that this case hinged to some degree on T.R.’s

credibility. But we disagree with Rigg that any new evidence that

may have cast doubt on her credibility warrants a new trial. See

Bueno, ¶ 32 (instead, the question is whether there is a probability

of a different result sufficient to undermine confidence in the

outcome). In addition to the new evidence being largely cumulative,

other evidence at trial corroborated T.R.’s testimony and supported

the jury’s verdicts. The prosecution introduced evidence that Rigg

had explicit photographs of T.R. in his possession, kept her sex toys

in his safe, wrote her love letters, took her out of school and later

checked into hotels, was overheard by T.R.’s brother having sex

1 For the first time in his opening brief, Rigg points to additional

details in the therapy records that would have been useful to him at
trial, including the use of eye movement desensitization and
reprocessing therapy, suggestion that T.R. spend time with other
victims of sexual assault, and discussion about how T.R. would
testify. Rigg did not include these details in his motion for a new
trial, so reversal is not warranted in the absence of plain error. See
Hagos v. People, 2012 CO 63, ¶ 14. Because Rigg was nevertheless
able to argue at trial that T.R. had been coached and, as discussed
below, ample additional evidence supported T.R.’s credibility, we
conclude the failure to disclose this evidence before trial does not
cast serious doubt on the reliability of his convictions. See id.

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with T.R., and asked others to destroy physical evidence found in

the safe.2 Viewing this evidence together, we conclude the trial

court properly determined there was no reasonable probability of a

different outcome at Rigg’s trial.

C. Rigg’s Remaining Arguments

¶ 21 Finally, we decline to address Rigg’s remaining arguments

because they are undeveloped. Although he argues that T.R.’s

therapy records cast doubt on the reliability of her out-of-court

statements, he fails to explain how the details included therein —

the date she began therapy, her reason for starting therapy, and the

unidentified checkmark — would have changed the court’s

determination that her statements were reliable and admissible.

Likewise, Rigg argues that access to the full records would have

enabled the defense to call T.R.’s therapist as a witness. But he

makes no argument about why the records would have allowed him

2 It also presented DNA evidence taken from the sex toys. While
Rigg points to ongoing investigations against the prosecution’s DNA
expert to cast doubt on the reliability of this, he did not base his
motion for a new trial on any new evidence resulting from these
investigations. In any event, we conclude that even without the
DNA evidence, the new evidence in T.R.’s therapy records was
insufficient to undermine confidence in the jury’s verdicts.

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to call the therapist or how her testimony would have changed the

outcome of his trial. Because these arguments are not developed,

we do not consider them. See People v. Relaford, 2016 COA 99,

¶ 70 n.2.

IV. Disposition

¶ 22 The order is affirmed.

JUDGE FREYRE and JUDGE YUN concur.

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