Peo v. Boerner

22CA1594 Peo v Boerner 01-22-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1594
Adams County District Court No. 20CR3432
Honorable Roberto Ramírez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Michael Boerner,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE JOHNSON
Harris and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 22, 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, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Daniel Michael Boerner (Boerner), appeals the

judgment of conviction entered on a jury verdict finding him guilty

of two counts of sexual assault on a child as to his daughter, L.B.

(daughter), and as to a family friend, I.L. (family friend); two counts

of sexual assault on a child — position of trust as to the daughter

and family friend; and one count of aggravated incest. The jury also

made a special finding that the sexual assault on a child as to the

family friend was part of a pattern of abuse. Boerner alleges that

the district court erred by (1) allowing the jury unfettered access to

the victims’ forensic interviews during deliberations; (2) allowing the

prosecutor to engage in misconduct; and (3) admitting improper

testimony related to the detective’s “screening” of cases, Boerner’s

arrest warrant, and references to department of human services

cases. He also contends that there was insufficient evidence to

support the convictions related to the daughter and raises a claim

of cumulative error.

¶2 We agree that the court erred by allowing the prosecutor to

engage in misconduct and that the error was obvious and

substantial, warranting reversal. We conclude, however, that there

was sufficient evidence as to the convictions relating to the

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daughter, so Boerner can be retried on those counts. Therefore, we

reverse and remand for a new trial. In light of our disposition, we

do not address Boerner’s other contentions because they are not

likely to arise on remand in the same manner.

I. Background

¶3 The prosecutor presented the following evidence upon which

the jury found Boerner guilty.

¶4 The family friend, who was ten years old at the time, and her

family attended a gathering at the house where Boerner and his

family lived. The family friend was friends with Boerner’s daughter,

who was also ten years old at the time. The family friend thought of

Boerner as an uncle or a “second dad.” At one point, while the

family friend and the daughter were in the hot tub at the residence,

the family friend’s bathing suit bottom “started to come undone,”

and Boerner offered to retie it. The family friend testified that

Boerner tied her swimsuit and then put his hand “inside the bottom

of [her] bathing suit” and touched her vagina.

¶5 Later that evening, the daughter and the family friend were

watching videos in the daughter’s bedroom, sharing the bottom

bunk. Boerner entered the bedroom and spoke to his daughter

2
about their plans for the next day. The family friend said that while

Boerner was talking to his daughter, he reached inside the family

friend’s shorts and touched her vagina. Boerner eventually left the

room, and the family friend locked the door and started crying. She

chose not to tell her parents about what happened because she

“was scared they wouldn’t believe [her].”

¶6 After the family friend disclosed the sexual assaults to a

school counselor, Safe2Tell Colorado interviewed her, the daughter,

and S.W., the daughter’s half sister (stepdaughter) at their

respective homes. Caseworkers from the Adams County

Department of Human Services (the Department) later conducted

forensic interviews with the three girls. During the daughter’s

forensic interview, she said that she saw Boerner reach inside the

family friend’s shorts and that the family friend had told her and

the stepdaughter about the assault. When the interviewer asked

whether Boerner had done a similar act to someone in the family,

the daughter disclosed that he had touched her vagina years

earlier. During the stepdaughter’s forensic interview, she said that

the family friend told her about the assault in the bedroom after it

3
happened, and she was crying and “freaking out” about it, but the

stepdaughter said that she did not believe the accusation.

¶7 The daughter’s and stepdaughter’s testimony at trial differed

substantially from their statements during the forensic interviews,

directly or partially contradicting their earlier corroborations of the

family friend’s account. The daughter testified that, contrary to

what she had said during the forensic interview, she did not think

Boerner had ever touched her inappropriately, and she did not

remember telling the interviewer that he had. She testified that she

remembered telling the forensic interviewer that Boerner touched

the family friend “multiple times,” but she did not think that was

what happened and that “nothing happened that night.” The

stepdaughter testified that she did not believe the family friend’s

allegation, which she said she told the forensic interviewer. The

family friend testified, consistent with her forensic interview, that

Boerner had touched her vagina in the hot tub and in the

daughter’s bedroom.

¶8 Boerner testified in his defense. He denied touching either girl

inappropriately but acknowledged fixing the family friend’s

swimsuit in the hot tub.

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¶9 The jury convicted Boerner of all charges. The district court

sentenced him to an indeterminate term of ten years to life in the

custody of the Department of Corrections.

II. Prosecutorial Misconduct

¶ 10 Boerner argues that the prosecutor improperly asked him to

opine on the veracity of the other witnesses’ testimony. We agree.

A. Additional Facts

¶ 11 Throughout Boerner’s cross-examination, the prosecutor

asked him to opine on the truthfulness of other witnesses’

testimony. At times, the prosecutor asked Boerner to opine on

whether the family friend or daughter had made up the allegations

of sexual assault:

Q: So to the best of your knowledge, [the family
friend] decided in that hot tub that I’m going to
make up a sexual assault allegation against
my third dad?

A: I’m not able to speculate what she was
thinking.

¶ 12 The prosecutor also asked Boerner questions about which

statements from the daughter’s forensic interview were true or false:

Q: Do you believe the information that your
daughter . . . gave to the forensic interviewer
was false?

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A: Which information?

Q: Do you believe any of it was false?

A: I believe some of it was false, yes.

Q: What parts do you believe were false from
your daughter’s testimony to the forensic
interviewer?

A: That’s a 56-minute interview, sir. There’s a
lot of parts to it.

Q: Hit me with the highlights.

A: The part about me touching her is
absolutely false. The parts of where she says
that she saw me touching [the family friend]
are absolutely false. There’s not any possible
way she would have been able to see that if it
had even occurred. Her not wearing dresses is
false. That girl loves dresses, and I’m pretty
sure she wore one here yesterday. I think
that’s most [of the] highlights.

Q: Okay. So the part about you guys having a
barbecue was true?

A: That’s correct.

Q: The part about her and [the family friend] in
hot tub was true?

A: That’s correct.

Q: The part about her and [the family friend]
changing into your clothes was true?

A: That’s correct.

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Q: The part about her and [the family friend]
going to bed in her bedroom was true?

A: That’s correct.

Q: The part about you going into the bedroom
late at night was true?

A: That’s correct.

Q: The part about them waking up the next
morning for Mother’s Day was true?

A: Yes.

Q: So the only parts in your mind that are
untrue are very specific to when those kids
start describing sexual assaults; is that right?

A: That’s correct.

....

Q: So every single detail that you heard in that
interview is correct except for the part where
they allege that you touch them?

A: I wouldn’t say every single detail, no. I
would say on the highlights, so your major
bullet points. But all the little nuanced
details, I have five pages of notes on that
particular interview alone of things that are
incorrect in that interview.

Q: So do you want to list for us any of the
other details that you think are important for
us to know that you think are untrue?

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¶ 13 (Emphases added). Boerner then had a colloquy with the

prosecutor about all the details from the daughter’s forensic

interview that he opined were untrue.

¶ 14 Subsequently, the prosecutor asked Boerner to opine as to

whether the daughter and family friend fabricated the allegations of

sexual contact:

Q: And so for what you’re telling us to be true,
those ten-year-old girls would have had to
weave in sexual assault allegations perfectly
into a story that is, as you just described,
mostly true; is that right?

A: I wouldn’t say perfectly but they did.

¶ 15 Boerner testified about the differing versions of the events told

by the family friend and daughter in their forensic interviews

conducted by the Department and by school officials as part of the

Safe2Tell interview, as compared to the children’s in-court

testimony. The prosecutor then asked Boerner, “So advise us,

which version should we believe?”

¶ 16 The prosecutor also asked Boerner to opine as to whether the

stepdaughter’s forensic interview statements or her in-court

testimony were truthful:

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Q: So [the stepdaughter’s] statement in court
was untruthful?

A: I’m not able to speculate on that. I don’t
know. I wasn’t in that room.

Q: I thought you were in the room?

A: In her bedroom when [the family friend]
woke up, no.

Q: So when you were in the bedroom, [the
family friend] was asleep?

A: So I believe we’re talking about two different
times here. If we’re not, I might be confused
and please straighten me out if I’m wrong here.
My understanding is that when [the
stepdaughter] — what she testified to in her
forensic interview is that she was — that she
was woken up by [the family friend] crying at
some point in time through the night, which I
was not there for. I was not there when the
girls woke up in the morning. At no point in
time was I in the room outside of when I told
them to go to bed and turn off the movie.

....

Q: Okay. Do you believe any of the
information that [the stepdaughter] discloses
to the forensic interviewer was false?

A: I’m trying to review her video in my head
and my notes from that one. Yes, some of the
information she gave was false.

Q: Anything that pertains to what happened in
the bedroom?

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A: No. Not that I'm not aware of.

....

Q: So should we rely on what they [the
children] told the forensic interviewers two
years ago?

A: Only if you rely on what they said before
that as well.

¶ 17 (Emphases added.)

B. Standard of Review and Applicable Law

¶ 18 In reviewing claims of prosecutorial misconduct, we first

evaluate whether the challenged conduct was “improper based on

the totality of the circumstances.” Wend v. People, 235 P.3d 1089,

1096 (Colo. 2010). Second, we look at whether such actions

warrant reversal according to the proper standard of review. Id.

¶ 19 Defense counsel did not object to any of these questions;

therefore, we review for plain error. Plain error is error that is both

obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 18. An

error is obvious when it contravenes a well-settled legal principle

and is substantial when it “so undermine[s] the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction.” People v. Robinson, 2019 CO 102,

¶¶ 19, 29.

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C. Analysis

¶ 20 We conclude that the court allowed the prosecutor to engage

in misconduct and that the error was obvious and substantial,

requiring reversal.

¶ 21 For an error to be obvious, it must “ordinarily contravene (1) a

clear statutory command; (2) a well-settled legal principle; or

(3) Colorado case law.” People v. Kessler, 2018 COA 60, ¶ 45.

Nearly twenty years ago, Liggett v. People held that “were they lying”

types of questions are categorically impermissible. 135 P.3d 725,

733 (Colo. 2006).

¶ 22 This has developed into a well-settled categorical rule that it is

improper for a prosecutor to ask a testifying defendant to opine on

the veracity of another witness, as such questioning offers little or

no probative value, ignores the many alternative explanations for

evidentiary discrepancies, infringes upon the province of the fact

finder, and is argumentative. Id. at 731-32. This prohibition

applies to questions asking whether a witness’s testimony was true

or untrue, incorrect, or “made up.” Kessler, ¶¶ 42, 46; see People v.

Koper, 2018 COA 137, ¶¶ 31-32, 35-37.

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¶ 23 Given this well-settled case law, the prosecutor engaged in

obvious misconduct when he asked Boerner to opine as to which

parts of the testimony of his daughter, stepdaughter, and the family

friend were true or untrue. These questions, peppered throughout

Boerner’s cross-examination, amounted to categorically

impermissible “were they lying” type questions. Liggett, 135 P.3d at

733; see Koper, ¶ 30. And given the pervasive number of prohibited

questions asked by the prosecutor, the district court should have

applied Liggett to prevent the prosecutor from phrasing his inquiries

in the manner he did.

¶ 24 While the Attorney General argues that Boerner opened the

door to these questions, he did not testify as to the veracity of other

witnesses during his direct examination. See Koper, ¶ 39.

¶ 25 Likewise, we disagree with the Attorney General’s attempt to

distinguish the prosecutor’s questions from prohibited “are they

lying” type questions. The questions need not specifically refer to

“lying”; the crucial point is whether the question seeks to elicit an

opinion from the witness that another witness is or is not telling the

truth. And “[o]ne of the reasons the Liggett court disapproved of

“are they lying” questions is that a direct comment on a person’s

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truthfulness “seeks information beyond the witness’s competence.”

People v. Lopez, 2024 COA 26, ¶ 27 (quoting Liggett, 135 P3d at

731) (cert. granted Dec. 23, 2024).

¶ 26 Next, we conclude that the error was substantial. An error is

substantial if it “undermined the fundamental fairness of the trial

itself so as to cast serious doubt on the reliability of the judgment of

conviction.” Koper, ¶ 43 (quoting Hagos, ¶ 14). We reach this

conclusion for four reasons.

¶ 27 First, the prosecutor’s questions while cross-examining

Boerner were not limited to a peripheral issue. Rather, the

questions went to the core issue in the case: the credibility of the

daughter’s allegations that Boerner had sexually assaulted her and

the family friend and the credibility of the stepdaughter’s initial

statements concerning the family friend’s assault. Cf. Liggett, 135

P.3d at 735 (Questions about whether witness was “mistaken” were

not plainly erroneous when “the subject matter of the questions was

largely peripheral to issues before the court.”).

¶ 28 This is especially true when two of the witnesses — the

daughter and stepdaughter — recanted their forensic interview

statements at trial. Asking Boerner to opine on whether the

13
children’s in-court or forensic interview statements were true or

false went to the very issue of which version of the daughter’s and

stepdaughter’s accounts the jury should believe.

¶ 29 Second, the evidence against Boerner was not overwhelming.

Cf. id. at 734 (The questions were harmless error because “the trial

court had ample evidence to support Liggett’s convictions and did

not accord weight to the improper statements.”). No physical

evidence was admitted at trial, and, as we have already mentioned,

the daughter’s and stepdaughter’s trial testimony contradicted their

earlier forensic interview statements, and both girls testified

inconsistently with the family friend’s recollection of the assault

perpetrated against her.

¶ 30 Third, the prosecutor recognized that the case hinged on the

jury believing the family friend, as well as the daughter’s and

stepdaughter’s prior statements, and disbelieving the daughter’s

and stepdaughter’s in-court testimony. During closing argument,

the prosecutor said that Boerner had admitted to all elements of the

sexual assault offenses except for engaging in sexual contact with

his daughter or the family friend. The prosecutor continued that

when the jury goes to deliberate, “it’s all going to come down to one

14
thing, and that’s credibility.” The prosecutor highlighted the

differences between the daughter’s and stepdaughter’s testimony

from the forensic interviews to their in-court testimony, saying,

“Even though they’re children, you still assess their credibility.”

¶ 31 And finally, the facts here — asking Boerner whether his

daughter and the family friend were being “untruthful,” whether the

children “made up” the allegations, and whether the children’s

statements were “false” — rendered the already improper questions

especially prejudicial. In effect, these questions placed him in the

“no-win situation” Liggett warned against: Boerner had to choose

between calling two young girls liars or testifying that they were not

lying, implying that he was lying. Koper, ¶ 45 (quoting Liggett, 135

P.3d at 732). And in fact, there are several instances when he did

testify in response to the prosecutor’s questions that some of the

statements made by his stepdaughter and daughter in their forensic

interviews were false.

¶ 32 Thus, the error undermines our confidence in the reliability of

the judgment of conviction, as this was the type of “flagrantly,

glaringly, or tremendously improper” conduct that warrants

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

15
2005) (citation omitted). We therefore conclude that the

prosecutorial misconduct here requires reversal of Boerner’s

judgment of conviction. And because we reverse on this issue, we

do not reach his other claims of prosecutorial misconduct.

III. Sufficiency of the Evidence

¶ 33 Boerner contends that there was insufficient evidence to

convict him of the charges relating to the daughter. We disagree.

A. Standard of Review and Applicable Law

¶ 34 We review the record de novo “to determine whether the

evidence presented was sufficient in both quantity and quality to

sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,

¶ 63.

¶ 35 The question is “whether the relevant evidence, both direct

and circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Clark v. People, 232 P.3d

1287, 1291 (Colo. 2010) (citation omitted). “A conviction will not be

set aside merely ‘because a different conclusion might be drawn

from the evidence.’” People v. Oliver, 2020 COA 150, ¶6 (citation

16
omitted). We must give the prosecution “the benefit of every

reasonable inference which may be fairly drawn from the evidence.”

Clark, 232 P.3d at 1292. If the evidence is “such that reasonable

jurors must necessarily have a reasonable doubt, then the evidence

is insufficient to sustain the defendant’s conviction.” Id.

B. Analysis

¶ 36 Boerner contends that, because the only evidence that

supported a conviction on the charges relating to the daughter was

his daughter’s unsworn — and later repudiated — statement during

a forensic interview, there was insufficient evidence to support the

two convictions related to the daughter. He argues this evidence

was not substantial and sufficient, as the daughter’s forensic

interview statement was contradicted by her trial testimony, her

interview with Safe2Tell, and her statement to her mother.

¶ 37 He points to Florida cases holding that prior out-of-court

statements by alleged child victims that are repudiated or

unsupported by the child’s trial testimony are insufficient to

support a conviction absent corroborating evidence. See, e.g.,

Baugh v. State, 961 So. 2d 198, 205 (Fla. 2007); Beber v. State, 887

So. 2d 1248, 1253 (Fla. 2004). But Boerner does not cite, and we

17
are not aware of, any Colorado authority reaching this same

conclusion. And we decline to endorse such a sweeping rule given

that “[s]kepticism about recantations is especially applicable in

cases of child sexual abuse where recantation is a recurring

phenomenon.” People v. Schneider, 25 P.3d 755, 763 (Colo. 2001).

¶ 38 The lack of physical evidence presented at trial meant this

case turned on the credibility of those who testified. And it is well

established that credibility determinations are a “matter solely

within the province of the jury.” People v. Franklin, 645 P.2d 1, 4

(Colo. 1982). An “important reason for entrusting determination of

these critical issues to a jury is to obtain the benefit of the wisdom

and diverse human experience of the several jurors in evaluating

whether a witness is believable.” Id. at 5. Unlike jurors, appellate

courts are ill-suited to make the credibility determinations

“essential to a determination of guilt or innocence.” Id. And,

viewing the evidence in the light most favorable to the prosecution,

it is plausible that the jury credited the statements from the

daughter’s forensic interview and discredited her in-court testimony

and other statements contradicting them.

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¶ 39 Regardless, we do not read the daughter’s in-court testimony

to be a complete repudiation of her allegation of sexual contact.

She testified that she did not think her father had touched her and

did not remember making such an allegation to the forensic

interviewer. This is quite different, though, from a witness’s in-

court testimony that unequivocally states that the charged conduct

did not occur at all.

¶ 40 Therefore, we conclude that the evidence was sufficient to

support the sexual assault and incest convictions relating to the

daughter.

IV. Conclusion

¶ 41 We reverse the judgment of conviction and remand the case to

the district court for a new trial.

JUDGE HARRIS and JUDGE SCHOCK concur.

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