Peo v. Kane

23CA1930 Peo v Kane 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1930
El Paso County District Court No. 22CR5049
Honorable William H. Moller, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Eugene Kane,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE MEIRINK
Fox and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

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

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Robert Eugene Kane, of sexual

assault on a child by one in a position of trust. He appeals, and we

affirm.

I. Background

¶2 During the summer of 2021, E.M. developed a friendship with

Kane’s daughter and spent four to seven nights a week at Kane’s

house. Because E.M. was fifteen and couldn’t drive, Kane often

picked her up and drove her to his house when she visited. E.M.

often referred to Kane as “dad,” and he texted her daily.

¶3 In July 2021, E.M. visited Kane’s home. E.M., Kane, Kane’s

wife, and Kane’s daughter were playing a Wii bowling game. E.M.

bent over to play with the family’s dog, and Kane struck the lower

part of her buttocks twice with an open hand. Kane’s daughter was

standing a few feet away and heard but did not see the swat.

Kane’s wife was also a few feet away and saw the incident. E.M.

testified that the swat hurt and that when she turned around to see

Kane’s reaction, he was laughing. E.M. testified that Kane told her

that she was “asking for it.”

1
¶4 E.M. testified that she did not initially think the strike was

sexual. However, a few months later, Kane sent E.M. the following

text:

Good morning. I hope you can make it
[because] this is the weekend I was going to
smoke with you guys. I don’t know how you
feel about this, but I’m going to say it and I
hope you don’t hate me for it. I hope someday
I can see you in my favorite outfit and give you
a tongue lashing to remember. There, it’s off
my chest. I won’t mention anything about it
again unless you want me to. Have a great
day.

¶5 E.M. then believed the swat was sexual in nature. She

reported the swat to police two days after receiving Kane’s text. The

police interviewed Kane, who claimed that the swat was not sexual,

and the text reference to “tongue lashing” had many different

meanings (like yelling at somebody). Kane was charged with sexual

assault on a child by one in a position of trust in violation of section

18-3-405.3(1), C.R.S. 2025.

¶6 Kane argued at trial that he struck E.M.’s buttocks in a joking

manner. The jury found him guilty, and the court sentenced him to

ninety days in jail and an indeterminate sentence of ten years to life

of sex offender intensive supervision probation.

2
II. Analysis

¶7 Kane raises multiple arguments on appeal. He argues that

(1) he was denied the right (a) to be present, (b) to counsel, and

(c) to due process when the judge addressed the jury during

deliberations without him and his attorney; (2) the prosecution

failed to prove beyond a reasonable doubt that Kane was in a

position of trust or that the buttocks swat had a sexual purpose;

(3) the text messages exchanged between Kane and E.M. were

extrinsic CRE 404(b) evidence, and the admission of that evidence

without a CRE 404(b) analysis or a limiting instruction requires

reversal; (4) the lead detective improperly testified that the charges

were supported by probable cause and the defense witnesses were

biased; and (5) cumulative error requires reversal. We disagree with

Kane’s contentions and address each in turn.

A. Kane Was Not Denied His Right to Be Present, to Counsel, or
to Due Process During the Challenged Exchange Between the
Judge and the Jury

¶8 Kane argues that the trial court reversibly erred by depriving

him of his right to be present, his right to counsel, and his right to

due process when it addressed a “question” from the jury during

deliberations. We disagree.

3
1. Additional Facts

¶9 Closing arguments occurred on a Friday afternoon. The jury

didn’t reach a verdict that day, and they were instructed to return

on Monday morning at 10:30 a.m. On Monday morning, a juror

called the court to relay that she was delayed because of a medical

appointment. The court held a short conference with counsel to

discuss scheduling. Counsel and the court agreed that when the

jury arrived, the court would instruct them that they were not

needed until 1 p.m. The court asked counsel if they wanted to be

present for that discussion with the jury. Defense counsel declined,

saying,

I’m upstairs doing a felony plea here pretty
quickly so I’m ok, Judge, if you just instruct
them. I trust that, obviously, potentially there
will be a record, but I don’t need to be there in
person.

The prosecutor also agreed that she did not need to be present.

Defense counsel said he would tell Kane to return to court at 1 p.m.

¶ 10 The court brought the jurors into the courtroom and explained

that they weren’t needed until that afternoon. One of the jurors

then said the following:

4
JUROR: When we were waiting to come in, the
Defendant’s wife came — and that —

THE COURT: Yes, I heard about that.

JUROR: Ok.

THE COURT: And so I’m going to go ahead and
address that with Defense Counsel —

JUROR: Ok.

THE COURT: — and [the prosecution].

JUROR: Ok. We didn’t say anything back. We
were just —

THE COURT: No, no, no. I — I’m just going to
tell you that that was what I would consider an
inappropriate communication. So, I do
appreciate it if that happens again, please let
me know and I’ll take whatever additional
action. I think she probably thought she was
doing a — everybody a favor —

JUROR: Yeah.

THE COURT: But unfortunately, that isn’t
appropriate. Alright, any other questions I can
ask — or any answer for any of you.

¶ 11 The jury was dismissed to reconvene that afternoon.

2. Right to Be Present

¶ 12 A defendant has a right to be present at every critical stage of

their criminal trial. People v. Cardenas, 2015 COA 94M, ¶ 21.

Stages of criminal proceedings have been deemed “critical” when

5
there exists more than a “minimal risk” that the absence of the

defendant’s counsel might impair the defendant’s right to a fair

trial. People v. Wright, 2021 COA 106, ¶ 37 (quoting Key v. People,

865 P.2d 822, 825 (Colo. 1994)). A court’s discussion with the

jurors can be a critical stage in a criminal proceeding. People v.

Guzman-Rincon, 2015 COA 166M, ¶ 20. But “the right to be

present is not constitutionally guaranteed when the defendant’s

presence would be useless or when the benefit of the defendant’s

presence would be ‘but a shadow.’” Zoll v. People, 2018 CO 70, ¶ 20

(quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). “Whether a

trial court violated a defendant’s right to be present is a

constitutional question that [we review] de novo.” Id. at ¶ 15

(citation omitted).

¶ 13 The court did not violate Kane’s right to be present because

his presence during the court’s exchange with the jury would have

been useless. See Zoll, ¶ 20. Our review of the record doesn’t

indicate that Kane’s presence during the exchange was necessary to

safeguard the proceeding’s fairness, and Kane hasn’t explained

what he could have offered, beyond speculating that he might have

known something about the encounter because his wife was

6
involved. The court addressed the jury to let it know of a delay, and

the court’s response to the juror’s comment about encountering

Kane’s wife was appropriate and unrelated to the issues the jury

was to decide. See id. (“A defendant has the right to be present

‘whenever his presence has a relation, reasonably substantial, to

the fullness of his opportunity to defend against the charge.’”

(quoting Stincer, 482 U.S. at 745). Under these circumstances,

Kane’s presence would have had no practical effect on the

proceeding, and his right to be present was not violated.

3. Right to Counsel

¶ 14 The State contends that defense counsel waived his right to be

present when the court addressed the jury. Rights can be waived,

but a waiver of a fundamental right such as a right to counsel

requires a knowing, voluntary, and intelligent waiver by the

accused. Phillips v. People, 2019 CO 72, ¶ 16 n.3. Because defense

counsel could not waive Kane’s right to counsel on Kane’s behalf,

and Kane’s absence from the proceeding prevented him from

waiving his right to counsel, this argument was not waived.

Accordingly, we will review it.

7
a. Standard of Review and Applicable Law

¶ 15 Both the United States and Colorado Constitutions guarantee

a defendant the right to counsel “at every critical stage of a criminal

proceeding.” Key, 865 P.2d at 825; see U.S. Const. amend. VI;

Colo. Const. art. II, § 16. As discussed above, a court’s discussion

with the jurors can be a critical stage in a criminal proceeding.

Guzman-Rincon, ¶ 20. “We review whether a defendant has been

denied representation at a critical stage of the proceedings de novo.”

Id. at ¶ 15.

b. Analysis

¶ 16 Kane contends that he was denied the right to counsel when

the judge instructed the jury that Kane’s wife — “a key defense

witness” — had behaved inappropriately. We disagree because the

challenged exchange did not occur during a critical stage of the

proceeding.

¶ 17 Kane relies on Leonardo v. People, 728 P.2d 1252 (Colo. 1986),

and Key, which held that the ex parte communications between the

judge and jury deprived the defendant of his constitutional right to

counsel at a critical stage of the proceedings. Leonardo, 728 P.2d at

1256; Key, 865 P.2d at 826. As explained below, the facts of Key

8
and Leonardo are distinguishable from Kane’s situation because the

judge’s statements in those cases occurred during a critical stage of

the trial.

¶ 18 In Leonardo, the defendant was charged with theft by

receiving, which required him to “know[] or believ[e]” that the item

in question had been stolen. 728 P.2d at 1254. During

deliberations, the jury asked whether the instruction for “[k]nowing

or [b]elieving” was the same as “[h]aving a [s]uspicion of.” Id.

(emphasis omitted). Without consulting counsel for either side, the

judge told the jury it had to reach a verdict “applying the words as

you find them in the instructions.” Id. The jury made no further

inquiries and found Leonardo guilty. Leonardo appealed, arguing in

part, that he was denied the right to counsel.

¶ 19 Because the jury’s question “betrayed a serious

misunderstanding regarding the culpable mental state required for

the crime of theft by receiving,” the supreme court concluded that it

could not say that “the failure of the trial judge to obtain the

presence of the defendant and his counsel and to give defense

counsel the opportunity to be heard was harmless beyond a

reasonable doubt.” Id. at 1258.

9
¶ 20 Unlike the exchange between the judge and jury in Leonardo,

the exchange here didn’t have the potential to influence the jury’s

deliberations or the outcome at trial. The jurors didn’t ask a

question related to the instructions, seek clarification about their

meaning, or indicate to the court that they misunderstood them.

The exchange neither addressed nor affected the jury’s

understanding of their instructions or their deliberations and

carried no risk of influencing the verdict.

¶ 21 Although, here, the court informed the jury that the witness’s

communication was inappropriate, the exchange didn’t involve any

issue central to the determination of guilt or innocence. The jury

reported the contact, and the court responded by reminding it that

the communication — like any communication between a witness

and the jury — was improper.

¶ 22 This case is also distinguishable from Key, when the court

brought the jurors back into the courtroom during deliberations to

discuss scheduling matters without informing either defense

counsel or the prosecution. 865 P.2d at 823. The court mentioned

the upcoming holidays and the potential for scheduling conflicts if

the jury did not decide the case quickly. Id. at 824. This kind of

10
pressure presented a substantial risk to the defendant’s right to a

fair trial because at least two jurors who were traveling over the

holidays had “substantial incentives to arrive at a verdict by the end

of the first afternoon of deliberations.” Id. at 825. Counsel’s

presence was essential to preserve any objections or to move for a

mistrial if the proposed schedule would infringe upon the right to a

fair trial. Id. at 825-26.

¶ 23 No similar transgression occurred here that required defense

counsel’s presence. The court didn’t place time constraints on jury

deliberations or indicate that a quick decision was expected or

encouraged. Rather, the court reiterated what it had told the jury

throughout the trial — that it was not to engage in or consider any

outside communication and that such contact was improper.

¶ 24 Defense counsel’s absence didn’t impair Kane’s right to a fair

trial because the challenged exchange didn’t occur at a critical

stage of the proceedings. See id. at 825 (“Not every communication

between the judge and jury constitutes a critical stage of the trial.”).

We, therefore, do not think the court erred by reminding the jury,

even outside of defense counsel’s presence, that being approached

by a witness was improper.

11
¶ 25 Finally, the parties dispute whether a violation of the right to

counsel amounts to structural error requiring automatic reversal,

see People v. Lopez, 2024 CO 50, ¶ 45, or whether constitutional

harmless error applies, see Key, 865 P.2d at 826. Having

concluded that Kane’s right to counsel was not violated and that

the court did not err, we need not decide the applicable standard of

reversal.

4. Right to Due Process

¶ 26 Kane’s due process argument simply restates his claims that

his right to be present and his right to counsel were violated. Kane

asserts that the court’s comment cast his wife, the “sole eyewitness

to the charged incident,” in a negative light and prejudiced the

defense. But Kane doesn’t develop an independent due process

argument; he simply argues that had he or counsel been present,

an objection could have been made. Because we have already

concluded that no reversible error occurred when Kane and his

counsel were not present during the court’s discussion with the

jurors, we similarly discern no due process violation.

12
B. There was Sufficient Evidence for the Jury to Conclude that
Kane Was in a Position of Trust and Subjected E.M. to Sexual
Contact

¶ 27 Kane argues that the prosecution failed to prove beyond a

reasonable doubt that he was in a position of trust or that the

buttocks swat had a sexual purpose. We disagree.

1. Standard of Review and Applicable Law

¶ 28 We review questions of statutory interpretation de novo.

People v. Roggow, 2013 CO 70, ¶ 12. In construing the statutory

definition of “position of trust,” we seek to effectuate the General

Assembly’s intent. Id. We begin with the plain language of the

statute, reading the words and phrases in context and construing

them according to their common usage. Manjarrez v. People, 2020

CO 53, ¶ 19. If the statutory language is clear and unambiguous,

we apply it as written without resorting to other means of

discerning legislative intent. Roggow, ¶ 12.

¶ 29 We review the sufficiency of the evidence de novo. Id. at ¶ 13.

“In so doing, we must determine whether the relevant evidence,

when viewed as a whole in the light most favorable to the

prosecution, is sufficient to support a conclusion by a reasonable

13
mind that the defendant is guilty of the charges beyond a

reasonable doubt.” Id.

¶ 30 A person commits sexual assault on a child by one in a

position of trust when he “knowingly subjects another not his or her

spouse to any sexual contact. . . if the victim is a child less than

eighteen years of age and the actor committing the offense is one in

a position of trust with respect to the victim.” § 18-3-405.3(1).

“Sexual contact” means

the knowing touching of the victim’s intimate
parts by the actor, or of the actor’s intimate
parts by the victim, or the knowing touching of
the clothing covering the immediate area of the
victim’s or actor’s intimate parts if that sexual
contact is for the purposes of sexual arousal,
gratification, or abuse.

§ 18-3-401(4)(a), C.R.S. 2025. “Intimate parts” includes “the

buttocks” of any person. § 18-3-401(2).

¶ 31 The definition of “position of trust” adopted by the legislature

“is a broad one.” Pellman v. People, 252 P.3d 1122, 1125 (Colo.

2011). Section 18-3-401(3.5) provides:

One in a “position of trust” includes, but is not
limited to, any person who is a parent or
acting in the place of a parent and charged
with any of a parent’s rights, duties, or
responsibilities concerning a child, including a

14
guardian or someone otherwise responsible for
the general supervision of a child’s welfare, or
a person who is charged with any duty or
responsibility for the health, education,
welfare, or supervision of a child, including
foster care, child care, family care, or
institutional care, either independently or
through another, no matter how brief, at the
time of an unlawful act.

The Colorado Supreme Court observed in Roggow that this

definition expressly includes two categories of persons. The first

category encompasses “parents and persons who regularly watch

over and care for a child, such as grandparents, other relatives,

close friends, or a parent’s [partner].” Roggow, ¶ 18. The second

category encompasses persons who “generally have access to the

child only for limited periods of time.” Id. at ¶ 19. However, the

legislature’s broad definition is not limited to these categories, and

they instead “reflect the General Assembly’s overarching intent to

target those offenders who are entrusted with special access to a

child victim and who exploit that access to commit an offense

against the child.” Id. at ¶ 15.

¶ 32 For purposes of the position of trust statute, “a defendant

need not be expressly charged with a particular duty or

responsibility over the child at the time of the unlawful act in order

15
to occupy a position of trust.” Id. Instead, a duty or responsibility

for the welfare or supervision of a child can be implied from the

circumstances. See People v. Madril, 746 P.2d 1329, 1336 (Colo.

1987) (concluding there was sufficient evidence that the defendant

“voluntarily assumed ‘a position of trust’ with respect to [the victim]

when he agreed to permit her to spend the evening with his children

at his home”). Accordingly, “a defendant’s special access to the

victim by virtue of an existing relationship or other conduct or

circumstances is evidence of an implied duty or responsibility for

the welfare or supervision of the victim during those periods of

special access.” Manjarrez, ¶ 27.

2. Analysis

a. Position of Trust

¶ 33 We conclude that there is sufficient evidence to support the

jury’s finding that Kane was in a position of trust with respect to

E.M. when the alleged incident occurred. While Kane was not

E.M.’s teacher, chaperone, or babysitter, E.M.’s relationship with

Kane and the circumstances surrounding the days in question

indicate that Kane had special access to E.M.

16
¶ 34 E.M. spent four to seven nights per week at Kane’s home and

was integrated into the family environment. She often referred to

him as “dad” and expressed a desire for him and his wife to adopt

her. E.M. also could not drive and depended on Kane to bring her

to his house for visits. By facilitating these frequent overnight

stays, Kane assumed responsibility for E.M.’s supervision, welfare,

and transportation. There was thus sufficient evidence for the jury

to find that Kane held a “position of trust” with respect to E.M.

Kane’s arguments to the contrary simply ask us to reweigh the

evidence in his favor, which we cannot do. See People v. Perez,

2016 CO 12, ¶ 25 (in conducting a sufficiency analysis, we do not

serve as a thirteenth juror or invade the province of the jury).

b. Sexual Contact

¶ 35 Kane claims that the prosecution failed to prove beyond a

reasonable doubt that he swatted E.M.’s buttocks for the purposes

of sexual arousal, gratification, or abuse. He argues that, at the

time of the offense, E.M. did not perceive the swat as sexual in

nature but rather as a “spank” — like she was in trouble for

something. This argument is misplaced because it focuses on

E.M.’s perception of the swat. The statute, however, does not

17
require the victim to perceive the contact as sexual in nature.

Rather, it focuses on the defendant’s purpose for the touch and

whether the defendant did it for sexual arousal, gratification, or

abuse. The statutory focus, therefore, lies on the actor’s intent and

not on the victim’s interpretation.

¶ 36 There is no direct evidence — such as Kane’s admission — of

Kane’s intent that he swatted E.M.’s buttocks for purposes of sexual

arousal or gratification. But a defendant’s intent can, and often

must, be proved by circumstantial evidence. People v. Taylor, 655

P.2d 382, 384 (Colo. 1982) (“[W]e have repeatedly recognized that

direct proof of the defendant’s state of mind is rarely available and,

consequently, resort must necessarily be had to circumstantial

evidence on this element.”); People v. Hines, 2021 COA 45, ¶ 37 (“A

jury may properly infer intent from the defendant’s conduct and the

circumstances of the offense.”). And whether a defendant acted

with the requisite mental state to sustain a conviction for unlawful

sexual contact can also be inferred from the nature of and the

circumstances surrounding the sexual touching. See People v.

McCoy, 2015 COA 76M, ¶ 47 (concluding that when the adult

defendant, who claimed to be a physician, lured two victims to his

18
home by telling them he worked in television, questioned them

about their sexual histories and sexual fantasies, and physically

examined them — including touching their genitals — the jury

could reasonably conclude that he examined the victims for the

purpose of sexual gratification), aff’d on other grounds, 2019 CO 44.

¶ 37 Kane struck E.M. on her buttocks with his open hand. E.M.

was wearing tight spandex shorts at the time, and E.M. testified

that Kane said she was “asking for it” because she bent over to play

with the dog. Kane’s conduct before and after the swat provides

context and circumstantial evidence from which the jury could

reasonably infer that he acted with a sexual purpose. Kane sent

E.M. multiple text messages before the incident, asking if she

thought they might “get in trouble” for texting, warning her that he

was “constantly dirty minded,” and calling E.M. a “sexy bitch.”

Kane also texted E.M. during the period in question, asking her if

she thought that he was creepy, why she didn’t want to be alone

with him, and if she would “hang out” with him. Kane also texted

E.M. that he hoped to see her one day in his “favorite outfit” and to

give her “a tongue lashing to remember.” Viewed in the light most

favorable to the prosecution, this evidence would allow a reasonable

19
jury to find that Kane’s purpose in swatting E.M.’s buttocks was

sexual and that he subjected her to sexual contact. Kane’s focus on

contrary record evidence is unavailing. See Perez, ¶ 25.

C. The Text Messages Between Kane and E.M. Were Admissible

¶ 38 Kane argues that the text messages he exchanged with E.M.

were extrinsic CRE 404(b) evidence and that the court erred by

admitting the messages without a CRE 404(b) analysis or a limiting

instruction. We disagree.

1. Additional Facts

¶ 39 In a pretrial filing, defense counsel stated that “[Kane]

request[ed] reasonable notice from the prosecution in advance of

trial of any intent to introduce any evidence subject to CRE 404(b).”

The trial court issued a case management order stating that “the

defense must provide to the [P]eople any CRE 404(a)(2) evidence,”

but it didn’t require the prosecution to file any notice under CRE

404(b). The prosecution didn’t file a notice.

¶ 40 At trial, the prosecution admitted multiple texts that Kane

sent E.M.:

June 10, 2021: Are you or I going to get in any
trouble for texting each other? . . . I know a lot
of people don’t like other parents talking to

20
their kids. If I ever do or say anything that
makes you uncomfortable, please tell me. . . .
And just as a warning, I’m constantly dirty
minded! LOL

July 27, 2021: Have a good day, you sexy
bitch! love you!

October 28, 2021: Good morning! I hope you
can make it [because] this is the weekend I
was going to smoke with you guys! I don’t
know how you feel about this, but I’m going to
say it and hope you don’t hate me for it. I
hope someday I can see you in my favorite
outfit and give you a tongue lashing to
remember! There, it’s off my chest! I won’t
mention anything about it again unless you
want me to. Have a great day!

¶ 41 The prosecution also admitted text messages that E.M. sent to

Kane on October 28, 2021:

[N]o that was so f****** unnecessary, like that
was beyond disgusting, and you should f******
know better. Like at this point you have just
become a predator in my f****** life. Like why
the f*** would you say that? [I don’t know]
what sick fantasies you and Kat have about
me but yall need to find some f****** sanity
and stop trying to groom onto a 16 [year old]
you are so f****** lucky I haven’t told my dad
about this yet. I told Jr and youre lucky you
didn’t get a f****** correction to your jaw.
[Y]our little “I’m sorry” is f****** b******* man!
Or when you smacked my a** and said I was
“asking for it” like you’re f****** disgusting bro.

....

21
[Y]ou’re a predator and you need to reevaluate
how you are because clearly you need some
f****** help.

The defense did not object to any of these text messages at trial.

2. Preservation

¶ 42 Kane argues that this issue was preserved by the pretrial filing

requesting notice of any CRE 404(b) evidence that was

memorialized in a court order. True, a pretrial motion can preserve

an objection in the absence of a contemporaneous objection, Uptain

v. Huntington Lab, Inc., 723 P.2d 1322, 1330 (Colo. 1986), but the

prosecution didn’t act contrary to a pretrial order because it wasn’t

required to file pretrial notice of evidence it intended to submit

under CRE 404(b), Kane didn’t file a pretrial objection to the

evidence, and Kane didn’t contemporaneously object when the

evidence was introduced at trial. Therefore, the issue is

unpreserved.

3. Standard of Review and Applicable Law

¶ 43 A trial court’s decision to admit evidence under CRE 404(b) is

reviewed for abuse of discretion. People v. Cooper, 104 P.3d 307,

309 (Colo. App. 2004). However, when the defendant does not

object to the admission of evidence at trial, we review for plain

22
error. People v. Vecellio, 2012 COA 40, ¶ 54. “Plain error is ‘an error

that is obvious, substantial, and grave, seriously affecting the

substantial rights of the accused.’” Id. (citation omitted). “Plain

error occurs only when, after review of the entire record, the

appellate court concludes that the error undermined the

fundamental fairness of the trial.” People v. Miller, 113 P.3d 743,

745 (Colo. 2005). To be plain, the error must be so obvious that the

trial court should have been able to avoid it without an objection.

Cardman v. People, 2019 CO 73, ¶ 34.

¶ 44 CRE 404(b) bars the admission of evidence of “any other

crime, wrong, or act” to prove “a person’s character in order to show

that on a particular occasion the person acted in conformity with

the character.” CRE 404(b)(1). However, other act evidence “may

be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” CRE 404(b)(2). This list is not

exclusive; “courts can admit uncharged misconduct evidence for

almost any non-propensity purpose,” subject to the limitations

discussed below. Rojas v. People, 2022 CO 8, ¶ 28.

23
¶ 45 When “evaluating whether uncharged misconduct evidence

triggers [CRE] 404(b), a trial court must first determine if the

evidence is intrinsic or extrinsic to the charged offense.” Id. at ¶ 52.

Intrinsic acts are limited to “(1) those that directly prove the

charged offense and (2) those that occur contemporaneously with

the charged offense and facilitate the commission of it.” Id. at ¶ 44.

All other acts are extrinsic. If proposed extrinsic act evidence

suggests that the defendant has a bad character and that he acted

in conformity with that bad character, it is admissible “only as

provided by [CRE] 404(b) and after a [People v. Spoto, 795 P.2d

1314 (Colo. 1990),] analysis.” Id. at ¶ 52.

¶ 46 Under Spoto, courts must consider whether (1) the evidence

relates to a material fact; (2) the evidence is logically relevant;

(3) the evidence is independent of the prohibited inference that the

defendant has a bad character and acted in conformity with that

character in this instance; and (4) the probative value of the

evidence is substantially outweighed by the danger of unfair

prejudice. 795 P.2d at 1318-19.

¶ 47 The trial court did not conduct a Spoto analysis when

determining that the text messages were admissible. However, any

24
error in admitting the evidence does not require reversal if the

evidence meets the foundational CRE 404(b) and Spoto

requirements. See People v. Cousins, 181 P.3d 365, 370 (Colo. App.

2007) (“A conviction will not be overturned on appeal when the trial

court employed an erroneous standard in analyzing the

admissibility. . . [if the] evidence [is] admissible, and the proper

foundation [was] laid for its admission.”).

4. Analysis

¶ 48 The buttocks swat occurred on July 8, 2021. The challenged

text messages — sent on June 10, July 27, and October 28, 2021 —

did not occur contemporaneously with the incident. They do not

directly prove that the swat was for sexual gratification, as they

neither mention the swat nor state that Kane acted with such a

purpose. However, they provide relevant context and support an

inference that Kane’s underlying intent was sexual in nature. We

therefore consider whether the challenged text messages were

admissible as extrinsic evidence under Spoto.

¶ 49 The first and second prongs of Spoto are satisfied. The text

messages are material and logically relevant because they

demonstrate that Kane may have been sexually interested in E.M.,

25
making it more likely Kane touched E.M. for purposes of sexual

gratification. Kane told E.M. he was “constantly dirty minded,”

referred to her as a “sexy bitch,” and told her he would like to give

her a “tongue lashing.”

¶ 50 The third Spoto prong is also satisfied because the text

messages’ logical relevance does not depend on the inference that

Kane was acting according to his bad character when he touched

E.M. Nothing in our review of the record indicates that the

prosecution sought to introduce the text messages to prove that

Kane was acting in conformity with his bad character. Instead, the

prosecution used the texts to establish Kane’s relationship with

E.M.; his sexual interest in her; and the likelihood that because he

was interested in her sexually, Kane struck E.M. for sexual

gratification.

¶ 51 The final Spoto prong is also satisfied because the probative

value of the text messages — in proving Kane’s intent —

substantially outweighed the danger of unfair prejudice. While the

text messages are prejudicial in that they tend to demonstrate

Kane’s sexual interest in E.M., such prejudice is not unfair in a

26
child sexual assault case because Kane’s sexual intent or motive

toward E.M. constitutes a material element of the charged offense.

¶ 52 Even if the court erred by not requiring pretrial notice or

providing a limiting instruction, any error was not substantial or

obvious. The purpose of giving pretrial notice is to avoid surprise,

but Kane doesn’t articulate that he was surprised by the

evidence — nor could he, having sent the texts — or how his

defense strategy would have been different had the prosecution

given pretrial notice. Likewise, although the court didn’t provide a

limiting instruction, it was clear that the purpose of the texts was to

show Kane’s intent. For example, the police reports filed with the

evidentiary motions clarified that the purpose of the texts was to

show Kane’s intent of sexual gratification. Additionally, during

closing arguments, the prosecutor clarified that the texts were being

used as evidence of Kane’s intent: The “question isn’t whether we

have proven that he is inappropriate beyond a reasonable doubt,

but these help inform you on what his intent is. This is what is

going on in his mind.”

¶ 53 Kane also challenges the admissibility of text messages that

E.M. sent in October 2021 calling him a “predator” and

27
“disgusting,” citing CRE 404(b). E.M.’s pejoratives are not evidence

of “any other crime, wrong, or act” used to prove Kane’s character,

so CRE 404(b) does not exclude this evidence. Kane fails to claim

any basis other than CRE 404(b) to exclude this evidence and did

not ask to redact the text messages. Accordingly, we discern no

error in admitting E.M.’s text messages.

D. The Lead Detective Did Not Improperly Testify

¶ 54 Kane argues that the lead detective improperly testified on

direct examination that the charges were supported by probable

cause and that the defense witnesses were biased. We perceive no

reversible error.

1. Additional Facts

¶ 55 During direct examination, the detective assigned to E.M.’s

case testified that he investigated the matter by contacting the

victim and her parents, setting up a forensic interview, downloading

the contents of the victim’s phone, and speaking to Kane. The

detective also testified that he did not interview Kane’s wife or

daughter. When asked why they weren’t interviewed, the detective

said,

28
I observed [E.M.’s] [forensic] interview and then
spoke with [Kane]. And at that point I
gathered enough information and evidence
with the cell phone messages and his
statements to establish probable cause. And
those other involved parties were present and
hadn’t witnessed it or they were going to be
biased witness[es] is what I call them and so I
just went forward with charging.

There was no contemporaneous objection to the detective’s

testimony.

2. Standard of Review and Applicable Law

¶ 56 A trial court has broad latitude in determining the

admissibility of evidence, and we review its determination for an

abuse of discretion. Davis v. People, 2013 CO 57, ¶ 13. But

because Kane did not preserve this issue by objecting

contemporaneously at trial, we review it for plain error. See Hagos

v. People, 2012 CO 63, ¶ 14.

¶ 57 In Davis, the supreme court held that a detective could “testify

about [their] assessments of interviewee credibility when that

testimony [wa]s offered to provide context for the detective’s

interrogation tactics and investigative decisions.” Davis, ¶ 19. But

the “admissibility of any testimony hinge[d] on the particular

circumstances under which it [wa]s elicited and offered.” Id. The

29
testimony was admitted primarily to explain the detectives’ use of

different interrogation techniques during interviews. See id. at

¶¶ 5-9. While the court emphasized the admissibility of such

testimony was highly fact specific, it outlined several facts

underlying its conclusion that the admitted testimony was proper,

including:

• the prosecutor did not use inflammatory or
prejudicial words such as “lie”;

• the prosecutor used open-ended questions;

• the detectives did not testify as to the
credibility of the witnesses’ in-court testimony,
but rather to their assessment of the
interviewees’ credibility during the
investigatory interviews;

• the detectives’ testimony was offered to
explain their investigative decisions;

• the witnesses on whose credibility the
detectives opined testified at trial and were
subject to cross-examination, which provided
the jury ample opportunity to judge their
credibility for itself; and

• although the trial court did not provide a
limiting instruction about each challenged
portion of testimony, a limiting instruction was
not required by statute or requested by either
party.

People v. Liebler, 2022 COA 21, ¶ 44.

30
3. Analysis

¶ 58 Here, the detective answered the prosecutor’s open-ended

questions about his training, his general duties as a detective with

the special victims’ unit, and his process for investigating cases and

interviewing witnesses. The prosecutor had asked the detective

whom he had interviewed and why. The prosecutor didn’t use

prejudicial or inflammatory words, such as “lie,” and didn’t press

the detective after he made the challenged statement. The

detective’s testimony didn’t touch on the witnesses’ in-court

testimony. Rather, his response explained his assessment of

credibility and how that helped him decide whether an interview

with Kane’s wife or daughter was necessary, given that he had

gathered sufficient information for his investigation. Also, Kane’s

wife and daughter testified at trial and were subject to cross-

examination, which provided the jury with “ample opportunity to

judge the credibility of these witnesses for itself, independent of the

detective’s statements.” People v. Lopez, 129 P.3d 1061, 1067

(Colo. App. 2005).

¶ 59 While the trial court didn’t provide a limiting instruction on

the detective’s testimony, it had no duty to provide one sua sponte

31
unless required to do so by statute or requested to do so by a party.

See Davis, ¶ 21. Neither situation applied here. We discern no

error — let alone plain error — with the court’s decision to admit

the detective’s testimony because his testimony did not undermine

the trial’s fairness and did not cast serious doubt on Kane’s

conviction.

¶ 60 Likewise, when the detective testified that he had “gathered

enough information and evidence with the cellphone messages and

[Kane’s] statements to establish probable cause,” his statements

were in response to the prosecutor asking whom he had interviewed

and why. He was explaining why it was unnecessary to interview

Kane’s wife and daughter. The detective did not explain the

probable cause standard or imply that the charges were based on

his assessment. Further, the statement was brief and wasn’t relied

on by the prosecution. See People v. Mendenhall, 2015 COA 107M,

¶ 69 (concluding that the trial court did not err by admitting

investigator’s testimony on how often charges were brought based

on his referrals because his statements were “brief and constituted

a small part of his testimony”). Even if the detective’s statement

was improper, its admission didn’t amount to plain error because

32
any error was not obvious or substantial. See id. at ¶ 71 (noting

that even under the harmless error standard, “the trial court’s error

in admitting parts of the investigator’s testimony did not

substantially influence the verdict or affect the fairness of the trial

proceedings and does not require reversal of defendant’s . . .

convictions”).

E. Cumulative Error

¶ 61 Kane argues that the cumulative effect of the errors

throughout his case deprived him of a fair trial. We disagree.

¶ 62 For us to reverse based on cumulative error, we must identify

multiple errors that collectively prejudiced Kane’s substantial

rights, even if any single error doesn’t. See Howard-Walker v.

People, 2019 CO 69, ¶ 25. While we acknowledge that some errors

may have occurred, cumulatively, the errors did not “affect[] the

fairness of the trial proceedings [or] the integrity of the fact-finding

process” and don’t require reversal. Id. at ¶ 24 (citation omitted).

III. Disposition

¶ 63 The judgment is affirmed.

JUDGE FOX and JUDGE BROWN concur.

33