Peo v. Brown

23CA1087 Peo v Brown 06-25-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1087
El Paso County District Court No. 21CR4112
Honorable Samuel Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Caina Brown,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE GROVE
Gomez and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 25, 2026

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, John Caina Brown, appeals his judgment of

conviction entered after a jury found him guilty of sexual assault on

a child by one in a position of trust (SAOC – POT) with a victim less

than fifteen years old as part of a pattern of sexual abuse,

aggravated incest, and child abuse. We affirm but remand the case

so the district court may correct the mittimus.

I. Background

¶2 Sixteen-year-old A.B. disclosed to a mandatory reporter that

her father, Brown, had shaved her vagina with an electric razor.

The disclosure led to an investigation, and law enforcement

interviewed A.B. multiple times about her allegation.

¶3 In the interviews, A.B. said that, on three or four separate

occasions occurring over the course of a year when she was about

fourteen years old, Brown shaved her vagina with an electric razor.

The first time it happened, A.B. had finished showering when

Brown, who was intoxicated, walked into the bathroom and told her

to put her leg up on the toilet or the tub so he could shave her.

A.B. reported she was mostly or entirely naked and cried during the

shaving, but that Brown said a doctor told him to do it. Brown

stopped when there was no more hair and then put some cream on

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A.B.’s hands and told her to apply it to herself. Two or three similar

incidents followed, but Brown stopped when A.B. told him she

could do it on her own. A.B. additionally reported that Brown urged

her to tell law enforcement that he had never shaved her.1

¶4 A.B. then mentioned two other incidents with Brown. In the

first, she described Brown slapping her face after she intervened in

a physical fight between him and his girlfriend. The slap left a

visible red mark. In the second, A.B. described Brown chasing her

upstairs to her bedroom after she talked back. A.B. said that

Brown hit her with his fist or slammed her against the wall, leaving

her with a black eye, a photo of which A.B. turned over to law

enforcement.

¶5 After law enforcement gathered evidence, a detective

interviewed Brown. During the interview, he denied shaving A.B.’s

vagina. Instead, he said that he had once shown a clothed A.B.

how to shave her legs after she asked for his help. He insisted that

he demonstrated only on the bottom part of one leg. He also denied

1 In addition to A.B.’s report, Brown told A.B. to deny the shaving

incidents during a phone call made by A.B. as part of the
investigation.

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that the other two incidents occurred and denied coaching A.B. on

what to tell police.

¶6 After a trial, the jury found Brown guilty of one count of

SAOC – POT (victim under fifteen, pattern), aggravated incest, and

child abuse. However, the mittimus indicates that he was convicted

of four total charges: one count of SAOC – POT (victim under fifteen,

pattern), one count of SAOC – POT (victim under fifteen), aggravated

incest, and child abuse.

¶7 Brown now appeals, arguing that the court (1) erroneously

instructed the jury on the definition of “sexual abuse”; (2) made

evidentiary errors and allowed prosecutorial misconduct; and

(3) included on the mittimus a charge never submitted to the jury.

The People concede, and we agree, that there is an error on the

mittimus, so we remand the case so that the mittimus may be

corrected. Otherwise, we affirm.

II. Jury Instructions

¶8 Brown contends that the district court erred when it

instructed the jury on the definition of “sexual abuse.” We disagree.

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A. Standard of Review

¶9 A district court has a duty to accurately instruct the jury on

the governing law. People v. Pahl, 169 P.3d 169, 183 (Colo. App.

2006). We review de novo whether the district court accurately

instructed the jury. People v. Zukowski, 260 P.3d 339, 343 (Colo.

App. 2010).

B. Applicable Law

¶ 10 SAOC – POT (victim under fifteen, pattern) and aggravated

incest both require proof that a defendant knowingly subjected the

victim to “sexual contact.” § 18-3-405.3(1), (2)(a), (b), C.R.S. 2025;

§ 18-6-302(1)(a), C.R.S. 2025. “Sexual contact” means the

“knowing touching of the victim’s intimate parts by the actor . . . if

that sexual contact is for the purposes of sexual arousal,

gratification, or abuse.” § 18-3-401(4)(a), C.R.S. 2025.

¶ 11 “Abuse,” as it appears in section 18-3-401(4)(a), is not defined

either by statute or in the model jury instructions. See People v.

Espinosa, 2020 COA 63, ¶ 26; COLJI-Crim. F:337 (2025). Appellate

case law, however, has clarified the parameters of that term. See

People v. Lovato, 2014 COA 113, ¶ 32 (recognizing that, in the

context of the phrase “sexual arousal, gratification, or abuse,” the

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word “abuse” means “sexual abuse,” but nevertheless holding that

such abuse does not require a “sexual motivation” on the part of the

perpetrator); see also Espinosa, ¶¶ 7, 20-21, 25-26 (holding that,

where the trial court defined “sexual abuse” in part as “behavior

done with an intent to cause pain, injury, or discomfort . . . [which]

can be either of a physical or an emotional nature,” that part of the

instruction correctly stated the law, but concluding that another

part of the same instruction saying that the perpetrator’s motive

was irrelevant was erroneous).

C. Applicable Facts

¶ 12 During the jury instruction conference, the court and counsel

discussed whether to instruct the jury on the meaning of “abuse”

under section 18-3-401(4)(a), which, as we have indicated, provides

that “sexual contact” means “[t]he knowing touching of the victim’s

intimate parts by the actor . . . if that sexual contact is for the

purposes of sexual arousal, gratification, or abuse.” The defense

objected to giving an instructional definition at all. While

acknowledging appellate case law holding that the term “sexual” in

the statute modifies “abuse,” see Lovato, ¶¶ 16-19, defense counsel

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argued that the court should not define the term unless the jury

asked for clarification.

¶ 13 Concerned that, left to their own devices, the jurors would not

“realiz[e] [that] the word ‘sexual’ modifies each of the terms after

it” — a result that would substantially broaden the scope of the

instruction — the court decided to provide a definition of “sexual

abuse” notwithstanding defense counsel’s objection. Based on

Lovato and Espinosa, the court crafted the following instruction:

“SEXUAL ABUSE” means any act committed
for the purpose of causing sexual humiliation,
sexual degradation, or other significant
physical or emotional discomfort of a sexual
nature. Such abuse does not require sexual
arousal or gratification on the part of the actor.

D. Analysis

¶ 14 Brown contends that the court reversibly erred by defining

“sexual abuse” for the jury for four reasons: (1) the instruction was

based on case law, see Evans v. People, 706 P.2d 795, 800 (Colo.

1985) (discouraging “[l]anguage used in an opinion” to craft jury

instructions because such language often relates to the specific

facts and issues of that case (citation omitted)); (2) the instruction

relied on dicta from Lovato and Espinosa; (3) by defining “sexual

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abuse” instead of simply “abuse,” the court signaled that “any act —

no matter how de minimis — was sufficiently ‘sexual’ to satisfy the

definition of sexual contact”; and (4) the definition the court

provided was “unanchored to the plain meaning of the word

‘abuse.’”

¶ 15 We perceive no error. As the district court recognized, caution

is certainly warranted when basing an instruction on case law, but

there is no inherent error in doing so. See Espinosa, ¶ 15. Relying

on dicta is even riskier, but the touchstone of proper jury

instructions is legal accuracy, not sourcing. See Pahl, 169 P.3d at

183 (“[T]he trial court has substantial discretion in formulating the

jury instructions so long as they are correct statements of the law

and fairly and adequately cover the issues presented.”); cf. Garcia v.

People, 2019 CO 64, ¶ 22 (noting that the Colorado Model Criminal

Jury Instructions “are not a safe harbor that insulates instructional

error from reversal”).

¶ 16 The district court used Lovato and Espinosa as guidance

rather than quoting from either case directly. As the court

explained, it was important for the jury to understand that it would

need to determine whether any abuse that Brown committed had a

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“sexual component.” See Lovato, ¶¶ 30-31. In the same vein, the

instructional definition properly required the jury to determine

whether the prosecution had proved that Brown acted with “the

purpose of causing sexual humiliation, sexual degradation, or other

significant physical or emotional discomfort of a sexual nature”

while simultaneously clarifying that “sexual arousal or gratification

on the part of the actor” was not a requirement. See Espinosa,

¶ 21.

¶ 17 We are unpersuaded by Brown’s argument that the instruction

departed from the plain meaning of “abuse.” Brown contends that

the instruction defined “abuse” more broadly than the word’s plain

meaning because it allowed for “any level of ‘humiliation’ or

‘degradation.’” But as the Espinosa division noted, “[i]n the legal

context,” the definition of abuse includes “[c]ruel or violent

treatment of someone; specif[ically], physical or mental

maltreatment, often resulting in mental, emotional, sexual, or

physical injury.” Id. at ¶ 13 (quoting Black’s Law Dictionary 12

(11th ed. 2019)). The definition provided by the court in this case,

which tracked Espinosa closely, appropriately “encompass[ed] both

physical and emotional pain, injury, or significant discomfort.” Id.

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III. Expert Testimony

¶ 18 Brown next contends that an expert witness for the

prosecution improperly bolstered A.B.’s credibility. Although the

opening brief is framed in terms of prosecutorial misconduct —

presumably arising from the prosecutor’s questions and some

characterizations of the expert testimony during closing — the more

developed argument focuses on the expert’s answers — asserting

that the court committed plain error by failing to limit the scope of

the expert’s testimony. Ultimately, it makes no difference whether

Brown’s argument is viewed through the lens of prosecutorial

misconduct or evidentiary error because, as we explain below,

neither the prosecutor’s questions nor the expert’s answers

amounted to improper bolstering.2

2 Brown quotes two excerpts of the prosecutor’s closing argument,

suggesting that the prosecutor committed misconduct by referring
back to expert testimony that, he maintains, was admitted for the
purpose of improperly bolstering A.B.’s credibility. But he does not
explain why these particular statements were improper, much less
why they would require reversal under the plain error standard. We
therefore do not address the propriety of the prosecutor’s closing
argument further. See People v. Stone, 2021 COA 104, ¶ 52
(declining to address undeveloped appellate argument).

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A. Applicable Law and Standard of Review

¶ 19 When reviewing claims of prosecutorial misconduct, we engage

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

2010). First, we determine whether the conduct at issue was

improper and, second, if any misconduct warranted reversal. Id.

We determine if the conduct was improper based on the totality of

the circumstances. Id. If we determine that a prosecutor’s

statements were improper, we consider whether the improper

statements warrant reversal under the applicable standard of

review. Id.

¶ 20 Whether a prosecutor has engaged in misconduct is an issue

within the trial court’s discretion, People v. Rhea, 2014 COA 60, ¶

42, and where, as here, plain error review applies because the

defense did not lodge a timely objection at trial, we reverse “only

when an error so undermines the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of the jury’s verdict.”

Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005).

¶ 21 A properly qualified expert witness may testify as to the typical

demeanor and behavioral traits displayed by a sexually abused

child because such testimony “assists the jury in understanding the

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victim’s behavior after the incident — why the victim acted the way

he or she did.” People v. Relaford, 2016 COA 99, ¶ 28. A

generalized expert’s “testimony about children’s general

characteristics and their behavior is not the same as

[impermissible] testimony supporting the veracity of their

statements.” People v. Whitman, 205 P.3d 371, 382-83 (Colo. App.

2007).

¶ 22 But still, expert witnesses are “prohibited from testifying that

another witness is telling the truth on a particular occasion.”

Venalonzo v. People, 2017 CO 9, ¶ 32 (citing People v. Wittrein, 221

P.3d 1076, 1081 (Colo. 2009)). “This rule applies to both direct and

indirect implications of a child’s truthfulness.” Id. (citing Wittrein,

221 P.3d at 1082). “The danger in admitting such testimony lies in

the possibility that it will improperly invade the province of the fact-

finder.” Id. (citing People v. Newbrough, 803 P.2d 155, 163 (Colo.

1990)).

B. Applicable Facts

¶ 23 Sue Wich, endorsed by the prosecution as an expert in child

sexual assault, victim/offender dynamics, and victim response to

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trauma, testified as a generalized expert at trial. She had no

knowledge of the specific facts of Brown’s case.

¶ 24 During direct examination, the prosecutor asked Wich a series

of questions about the behavior of victims and offenders who are in

sexual abuse situations.

¶ 25 The prosecutor first asked if it was common for a victim to

share more details about traumatic events over time.

[PROSECUTOR]: Now, is [sharing more details
about a traumatic event over time] necessarily
a reflection on the credibility of the victim who
is — who has suffered that trauma?

[WICH]: No . . . . Again, that’s a common
dynamic with people who are substantiated
victims with an offender who is acknowledging
their offenses. So it’s really a function of
memory and coping mechanisms that the
victim has engaged in to kind of preserve
themselves.

¶ 26 The prosecutor next asked Wich about offenders normalizing

their own behavior.

Q: Would it be consistent with that concept if,
for example, an offender told his victim that
the reason he was abusing her was because he
got instructions from a doctor to do so?

A: Yes . . . . Plausible deniability, classic.

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¶ 27 He then asked Wich about a victim’s demeanor while

testifying.

Q: If a victim were to present on the stand in
kind of a stoic manner and sometimes get
annoyed with the questions that were being
asked, would that necessarily, to you, indicate
a diminished credibility?

A: No. No. I think many victims who respond
with that kind of anger and indignation that
they would be questioned about this again, but
once again someone is trying to prove them to
be a liar, and you have to have kind of a great
deal of stoicism to overcome that dynamic.
And I think that is one of the presentations of
someone who is struggling with that.

C. Analysis

¶ 28 Although some of the prosecutor’s questions were perhaps

inartful, they did not elicit any improper testimony from the expert.

For example, it was not improper to inquire generally about the

behavior of child sexual assault victims. See People v. Glasser, 293

P.3d 68, 78 (Colo. App. 2011) (testimony about whether a sexual

assault victim’s behavior or demeanor was consistent with the

typical behavior of abuse victims is permitted). Nor was it improper

to elicit answers that only incidentally corroborated A.B.’s

testimony. See Relaford, ¶ 31 (This type of evidence is permissible

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because it “(1) relates to an issue apart from credibility and (2) only

incidentally tends to corroborate a witness’s testimony.” (citation

omitted)). And to the extent that Wich spoke generally about a

sexual assault victim’s expected demeanor while testifying, the

prosecutor did not ask her to opine on whether A.B. herself was

credible, and Wich did not offer such an opinion. See People v.

Short, 2018 COA 47, ¶ 14 (“This evidence does not say whether the

child was or was not lying on a specific occasion; instead, it

explains why a jury should not necessarily disbelieve a child

because of circumstances that, in a different context, would

discredit the child’s story.”).

¶ 29 To be sure, one of the prosecutor’s questions — about an

offender normalizing their abuse under the guise of following a

doctor’s orders — came closer to the line because it asked Wich to

opine on the precise facts of this case. But we cannot conclude that

any error was plain. Divisions of this court have repeatedly upheld

hypothetical questions involving the facts of a case at hand. See,

e.g., Short, ¶¶ 13-20; People v. Morrison, 985 P.2d 1, 2-6 (Colo.

App. 1999), aff’d, 19 P.3d 668 (Colo. 2000); People v. Mintz, 165

P.3d 829, 831-32 (Colo. App. 2007). Similar to the experts in Short,

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Morrison, and Mintz, the prosecution’s expert in this case testified

without knowledge of the case’s particular facts. See, e.g., Short,

¶ 18; cf. Venalonzo, ¶¶ 35-38 (holding it was improper for an expert

who directly interviewed the victims to specifically state that the

victim’s behaviors were common to other child sex assault victims

she had interviewed where the state dropped charges). And Wich’s

response did not focus on the truthfulness of the child’s statements

but was instead a follow-up to her prior testimony about the ways

in which offenders try make their abuse seem like “no big deal” to

“keep [the abuse] a secret.” See Morrison, 985 P.2d at 5 (citing

People v. Fasy, 829 P.2d 1314 (Colo. 1992), for the proposition that

an expert’s testimony that necessarily implied a child’s report of

sexual abuse was true was nevertheless proper because the expert

testified in general terms, did not focus on the truthfulness of the

child, and, except for one instance, did not make any explicit

reference to the victim’s truthfulness).

IV. Mittimus

¶ 30 Finally, both parties agree that the jury convicted Brown of

only one count of SAOC – POT (victim under fifteen, pattern), and

not SAOC – POT (victim under fifteen). Because the mittimus

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incorrectly states that Brown was convicted of the latter charge, we

remand the case for correction of that error under Crim. P. 36.

V. Disposition

¶ 31 We affirm Brown’s judgment of conviction but remand the case

to the district court to correct the clerical error described above.

JUDGE GOMEZ and JUDGE MOULTRIE concur.

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