People v. Aldridge

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 20, 2018

2018COA131

No. 15CA0210, People v. Aldridge — Criminal Law — Trials —
Witnesses — Use of Closed Circuit Television

The People moved for child witnesses under the age of twelve

to testify, from another courtroom, outside the defendant’s presence

using closed-circuit television under section 16-10-402, C.R.S.

2017. Over the defendant’s objection, the trial court granted that

motion. At trial, rather than having the witnesses testify from

another room, the trial court permitted the children to testify in the

courtroom while the judge and the defendant watched from the

judge’s chambers. The jury could not see or hear the defendant

during the children’s testimony. A division of the court of appeals

concludes that the procedure violated the defendant’s due process

right to be present because the defendant was denied any

opportunity to exert a psychological influence on the jury.
The division also addresses, to the extent the issues are likely

to arise on remand, the defendant’s claims that (1) the prosecutor

improperly bolstered the alleged victims’ credibility, (2) evidence was

improperly admitted, and (3) the trial court erred in ordering ten

consecutive sentences.

Accordingly, the division reverses the judgment of conviction

and sentence.
COLORADO COURT OF APPEALS 2018COA131

Court of Appeals No. 15CA0210
Chaffee County District Court No. 13CR113
Honorable Charles M. Barton, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Robert Joseph Aldridge,

Defendant-Appellant.

JUDGMENT AND SENTENCE REVERSED
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Bernard and Welling, JJ., concur

Announced September 20, 2018

Cynthia H. Coffman, Attorney General, Paul Koehler, 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 This case presents the issue of the intersection of two

constitutional rights ― a defendant’s right to confront the witnesses

against him or her and the defendant’s right to be present at all

critical stages of a trial. With adequate findings, the former right

may yield in a sexual assault case to allow child witnesses to testify

in a different room from the defendant, while the latter requires that

the defendant and the jury be located in the same room. Here, the

trial court implemented the exception to the right to confrontation

of defendant, Robert Joseph Aldridge, by separating him from the

alleged child victims. However, we hold that it did so at the expense

of Aldridge’s right to be present during their testimony, by requiring

that Aldridge be excluded from the courtroom and requiring him to

watch the children’s testimony from the judge’s chambers, along

with the judge, outside the presence of the jury. Accordingly, we

reverse Aldridge’s judgment of conviction and sentence, and remand

for a new trial.

I. Background

¶2 C.O. and L.A. spent about three weeks camping alone with

Aldridge, their maternal grandfather, during the summer of 2013.

At the time, C.O. was four years old and L.A. was nine years old.

1
¶3 A few days after she was picked up from Aldridge’s campsite,

C.O. told her aunt that she had seen and touched Aldridge’s

“pecker.” The aunt later questioned L.A., who eventually confirmed

C.O.’s allegations. During separate forensic interviews, C.O. did not

report any sexual contact with her grandfather, but L.A. stated that

both girls had touched Aldridge’s penis during the camping trip and

that it got stiff. As a result of the allegations, the People charged

Aldridge with two counts of sexual assault on a child by one in a

position of trust as part of a pattern of abuse, two counts of sexual

assault on a child as part of a pattern of abuse, four counts of

sexual assault on a child by one in a position of trust—victim under

fifteen, four counts of sexual assault on a child, and two counts of

aggravated incest.

¶4 At trial, the defense argued that Aldridge was physically

incapable of obtaining an erection because he had undergone a

prostatectomy as part of his cancer treatment and that strained

family dynamics resulted in the alleged victims’ false accusations.

A jury found Aldridge guilty as charged. The trial court sentenced

him to 116 years to life in the custody of the Department of

Corrections.

2
¶5 On appeal, Aldridge contends that the trial court erred by (1)

excluding him from the courtroom while C.O. and L.A. testified; (2)

permitting witnesses and the prosecutor to improperly bolster the

alleged victims’ credibility; (3) allowing a detective to give expert

testimony that children’s clothing found in Aldridge’s motor home

may have been an “erotic trigger”; and (4) imposing ten consecutive

sentences for four acts. We agree with his first contention and

reverse on that basis.

II. Exclusion From Courtroom

¶6 Aldridge contends that the trial court violated his right to be

present by excluding him from the courtroom when the alleged

victims testified, and that the error requires reversal. We agree.

A. Additional Facts

¶7 Before trial, the People moved for C.O. and L.A. to testify by

closed-circuit television (CCTV) under section 16-10-402, C.R.S.

2017. Specifically, the People asked that the children be permitted

“to testify outside the presence of the defendant, in a separate

courtroom.” The People further represented that CCTV capability

existed between the two courtrooms in the county courthouse.

3
¶8 In a written objection, Aldridge argued that allowing the

children to testify outside of his presence violated his “due process

right to [be] present during critical stages of the proceedings.” He

argued that “[t]he right to be present isn’t satisfied by watching

your own trial on TV, even if you are watching it in the company of

the judge.”

¶9 During a motions hearing, the defense primarily argued that

the People had not proved that requiring the children to testify in

Aldridge’s presence would cause them serious emotional distress.

The defense also reiterated that it had constitutional concerns that

had been addressed in its objection. The trial court granted the

People’s motion. Neither the trial court nor the parties indicated at

the hearing that Aldridge, rather than the children, would be

removed from the courtroom.

¶ 10 At the close of the first day of trial and outside the presence of

the jury, the trial court explained that the judge, Aldridge, and an

investigator from the public defender’s office would watch the

children’s testimony from the judge’s chambers while the children

4
testified in the courtroom.1 The trial court instructed that, if

Aldridge needed to communicate with defense counsel during the

children’s testimony, the investigator would relay his comments via

an instant messaging system.

¶ 11 The following morning, the People requested that the

children’s mother be permitted to stay in the courtroom during their

testimony under section 16-10-402(2)(a)(V). Instead, the trial court

allowed the children’s aunt to stay. When asked for its position on

permitting the aunt to remain in the courtroom, the defense stated

that it was “objecting to the whole procedure.”

¶ 12 Before the children testified, the trial court and Aldridge tested

the CCTV setup outside the jury’s presence. Aldridge confirmed

that he was “seeing the picture,” but stated that it was “not like

1 The record does not reveal, and the parties do not explain,
precisely when the trial court adopted this procedure. However, at
a pretrial hearing less than a week before trial, the trial court
represented that court staff had been exploring whether the closed-
circuit “television advisement system might be configured to
address the child witnesses.” The prosecutor suggested that,
assuming the CCTV did not work, the “best [alternative] [she] had
was to screen the defendant off . . . while the children testified in
the same room.” At the close of that hearing, the trial court said
that it would continue to work on the CCTV technology.

5
looking at a person. It [was] bouncy or . . . . It[ was] like something[

was] lagging.” After a break off the record, the court clerk reported,

“All of our testing is normal.” However, Aldridge then said that he

had had some trouble hearing his counsel and the prosecutor.

¶ 13 When the jury re-entered the courtroom, Aldridge was in the

judge’s chambers. The jury could not see or hear him. Before the

trial court judge left the courtroom, he explained:

The Court -- the way the next two witnesses,
who are going to be the children, are going to
testify is under the Provisions of the Statute.
There is separation -- it calls for separation
between the child and the Defendant.

In order to do that, the child -- or children, are
going to testify from the witness stand here.
Mr. Aldridge and I will be in my chambers.
And we are going to be on a computer video
system.

There’s a camera in this, this computer. And
so, it’s, it’s one-way. It will show into
chambers, the witness, and we will be able to
hear.

The witness will be able to hear. Everyone in
the courtroom, of course, and we will be able
to hear everyone in the courtroom.

The witness won’t be able to see us in
chambers. We’re hoping this works as well as
it can. There may be some interruptions.

6
Our IT people from the [State Court]
Administrator’s Office and a private vendor,
we’ve worked on this for days. I think we’ve
got it pretty well.

The judge also explained that he would be able to communicate into

the courtroom over a microphone.

¶ 14 C.O. testified first. In response to the prosecutor’s questions,

she initially testified that she did not know anyone named “Grandpa

Joe” or “Grandpoo” — her nicknames for Aldridge — and that her

mother’s dad was dead. The trial court called for a brief recess and,

once the jury had left, told defense counsel and the prosecutor that

Aldridge was “having an emotional meltdown” based on C.O.’s

testimony.

¶ 15 After a break, the trial court resumed C.O.’s testimony, during

which Aldridge and the judge remained in the judge’s chambers.

C.O. testified that she had touched Aldridge’s “pecker” and that it

was hard, but that L.A. had not touched Aldridge’s penis. L.A.

testified that Aldridge had made her sister “play with his private

spot,” but that L.A. had not touched his penis. At various points

during L.A.’s testimony, the trial court said that it was having

difficulty hearing her.

7
B. Preservation and Standard of Review

¶ 16 “Whether a trial court violated a defendant’s right to be

present is a constitutional question that is reviewed de novo.”

People v. Wingfield, 2014 COA 173, ¶ 13, 411 P.3d 869, 872.

¶ 17 The People urge us to consider the error unpreserved, and

therefore to review for plain error, because in their view (1)

Aldridge’s written objection contained only a “cursory” reference to

his right to be present and (2) the defense stood on its prior

objection when it became clear the trial court was envisioning

having the children testify in the courtroom while Aldridge observed

from chambers. We disagree on both counts.

¶ 18 First, we consider Aldridge’s argument based on his right to be

present in his objection sufficient to “put the trial court on notice of

his position” and give it an opportunity to avoid the error. People v.

Pahl, 169 P.3d 169, 183 (Colo. App. 2006). Moreover, Aldridge

continued to object to the trial court’s proposed procedure on

various grounds, and reiterated that he stood on his original

objection. We consider these actions sufficient to preserve this

contention. See People v. Pratt, 759 P.2d 676, 685 n.5 (Colo. 1988);

see also Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31

8
(Colo. 1986) (objections made in motion in limine constituted a

timely objection).

¶ 19 We review preserved constitutional errors for constitutional

harmless error, reversing if “there is a reasonable possibility that

the [error] might have contributed to the conviction.” Hagos v.

People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119 (quoting Chapman v.

California, 386 U.S. 18, 24 (1967)). The People bear the burden of

proving that the error was harmless beyond a reasonable doubt.

Id.; see also Luu v. People, 841 P.2d 271, 274-75 (Colo. 1992)

(characterizing deprivation of the right to be present as a trial

error).

C. Applicable Law

1. Right to Be Present

¶ 20 A defendant has a constitutional right to be present at his or

her criminal trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II,

§ 16; Luu, 841 P.2d at 275; People v. Ragusa, 220 P.3d 1002, 1009

(Colo. App. 2009); see also Crim. P. 43(a) (stating that a defendant

has the right, subject to limited exceptions, to be present “at every

stage of the trial”).

9
¶ 21 The right to be present is rooted in part in the Confrontation

Clauses of the United States and Colorado Constitutions. U.S.

Const. amend. VI; Colo. Const. art. II, § 16 (“In criminal

prosecutions the accused shall have the right to . . . meet the

witnesses against him face to face . . . .”); see United States v.

Gagnon, 470 U.S. 522, 526 (1985). These clauses protect the

defendant’s “right to be present at trial to secure the opportunity for

full and effective cross-examination of witnesses.” Luu, 841 P.2d at

275.

¶ 22 The Due Process Clause, however, affords defendants the right

to be present in situations where the Confrontation Clause is not

implicated. See Gagnon, 470 U.S. at 526 (stating that the right to

be present is rooted in due process principles “in some situations

where the defendant is not actually confronting witnesses or

evidence against him”). “[D]ue process clearly requires that a

defendant be allowed to be present ‘to the extent that a fair and just

hearing would be thwarted by his absence.’” Kentucky v. Stincer,

482 U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291

U.S. 97, 108 (1934)). Thus, the Due Process Clause protects a

defendant’s right to be present at all “critical” stages of his or her

10
trial. Id. “A critical stage of criminal proceedings is one where there

exists more than a minimal risk that the absence of the defendant

might impair his or her right to a fair trial.” People v. Cardenas,

2015 COA 94M, ¶ 22, 411 P.3d 956, 963.

2. Section 16-10-402 and the Confrontation Clause

¶ 23 A Colorado statute provides a mechanism by which witnesses

under the age of twelve can testify “in a room other than the

courtroom and be televised by closed-circuit television [CCTV] in the

courtroom.” § 16-10-402(1)(a). Several conditions must be met

before a child witness can testify by CCTV under this statute,

including a determination by the trial court “that testimony by the

witness in the courtroom and in the presence of the defendant

would result in the witness suffering serious emotional distress or

trauma such that the witness would not be able to reasonably

communicate.” § 16-10-402(1)(a)(II).

¶ 24 Under section 16-10-402(2)(a), only specified people may be in

the room with the child witness when he or she testifies by CCTV ―

the prosecutor, defense counsel, the child’s guardian ad litem,

operators of the CCTV equipment, “[a] person whose presence, in

the opinion of the court, contributes to the welfare and well-being of

11
the witness,” and the jury. § 16-10-402(2)(a)(I)-(VI). “During the

witness’s testimony by closed-circuit television, the judge and the

defendant, if present, shall remain in the courtroom.” § 16-10-

402(2)(b); see also § 16-10-402(2)(c) (“The judge and the defendant

shall be allowed to communicate with the persons in the room

where the witness is testifying by an appropriate electronic

method.”). However, the statute does not “preclude the removal of

the defendant, rather than the witness, from the courtroom upon

the stipulation of both parties and the approval of the court.” § 16-

10-402(5) (emphasis added).

¶ 25 This provision provides a narrow statutory exception to the

requirements of the Confrontation Clauses. U.S. Const. amend. VI;

Colo. Const. art. II, § 16. In Maryland v. Craig, the Supreme Court

upheld a similar law, concluding,

where necessary to protect a child witness
from trauma that would be caused by
testifying in the physical presence of the
defendant, at least where such trauma would
impair the child’s ability to communicate, the
Confrontation Clause does not prohibit use of
a procedure that, despite the absence of face-
to-face confrontation, ensures the reliability of
the evidence.

12
497 U.S. 836, 857 (1990). Thus, the Court in Craig held that the

Confrontation Clause does not “categorically prohibit[] a child

witness . . . from testifying against a defendant at trial, outside the

defendant’s physical presence, by one-way closed circuit television.”

Id. at 840; see also People v. Phillips, 2012 COA 176, ¶¶ 51, 59, 315

P.3d 136, 150, 153 (concluding that there was no violation of

defendant’s federal or state confrontation rights when child testified

by CCTV from another room under section 16-10-402). However, in

Craig, the Maryland statute at issue provided for “the child witness,

prosecutor, and defense counsel [to] withdraw to a separate room;

the judge, jury, and defendant remain in the courtroom.” Craig,

497 U.S. at 841. Because the defendant along with the judge and

jury, remained in the courtroom in Craig, the Court had no need to

consider whether the procedure violated the defendant’s right to be

present. See id. at 842 (“Craig objected to the use of the procedure

on Confrontation Clause grounds . . . .”).

D. Analysis

¶ 26 Aldridge contends that the trial court erred in excluding him

from the courtroom during the alleged victims’ testimony. We

agree.

13
¶ 27 At the outset, the People concede that the trial court “did not

strictly comply” with the procedure set forth in section 16-10-402.

Although the statute does not preclude the removal of the

defendant from the courtroom upon the stipulation of both parties

and the approval of the court, it is undisputed that Aldridge did not

stipulate to his removal in this case. Because the People initially

moved for the witnesses to testify from another courtroom by CCTV,

it is not clear whether the People stipulated to the procedure used.

Indeed, the record does not indicate when the trial court announced

the procedure it adopted, or the People’s response, especially given

their request to have the children testify in another courtroom, with

Aldridge remaining in the courtroom.2 Thus, we conclude that the

2 The record suggests that the trial court used the procedure here
due to technological difficulties in having the children testify from
another room and televising their testimony in the courtroom. To
the extent the People suggested at oral argument that section 16-
10-402, C.R.S. 2017, permits a trial court to remove a defendant
from the courtroom during a child’s in-court testimony if there are
difficulties in setting up CCTV equipment (or no CCTV equipment at
all), we disagree. One prerequisite to invoking the procedure in that
statute is that “[c]losed-circuit television equipment is available for
such use.” § 16-10-402(1)(a)(III). If that equipment is not available
(or suitable to comply with the statute), neither party can move to

14
trial court’s decision to remove Aldridge from the courtroom rather

than permit the witnesses to testify by CCTV from another room ran

afoul of the statutory provision.3

¶ 28 Our determination is in accord with the division’s analysis in

People v. Rodriguez, 209 P.3d 1151 (Colo. App. 2008), aff’d by an

equally divided court, 238 P.3d 1283 (Colo. 2010). There, the

division concluded that the trial court erred by removing the

defendant during a child’s testimony without adhering to the

procedure set forth in section 16-10-402, though the division also

concluded that the error was harmless. Id. at 1158. In Rodriguez,

like here, “the parties did not stipulate to defendant’s, instead of

[the witness’s], removal from the courtroom.” Id. at 1157; see also

id. (concluding that the trial court also erred by “not providing an

have a child testify from outside the courtroom, and the trial court
cannot order such a procedure on its own motion.
3 It is unclear from the record whether the trial court otherwise

complied with the requirements of section 16-10-402(2)(a) by
allowing only those authorized by the statute to remain in the
courtroom. Although the parties and the trial court discussed
section 16-10-402(2)(a)(V), and the trial court ruled that the
children’s aunt could remain in the courtroom when they testified,
the record does not indicate whether the trial court excluded other
spectators.

15
electronic method of communication between defendant and her

counsel”).

¶ 29 We further conclude that the procedure here violated

Aldridge’s constitutional right to be present under the Due Process

Clause. In other contexts, divisions of this court have concluded

that a defendant’s removal or absence from the courtroom during a

trial court’s communications with the jury violated the defendant’s

due process right to be present during a critical stage of trial. See,

e.g., People v. Payne, 2014 COA 81, ¶ 20, 361 P.3d 1040, 1044

(defendant’s absence when trial court read modified Allen jury

instruction violated right to be present). These cases have

acknowledged that the defendant’s in-court presence “can have a

psychological impact on the jury that may benefit the defendant.”

Id. at ¶ 12, 361 P.3d at 1043; see also Larson v. Tansy, 911 F.2d

392, 395-96 (10th Cir. 1990) (“[O]n the issue of defendant’s absence

from jury instructions, closing arguments, and the rendition of the

verdict, we hold that defendant was deprived of his due process

right to exert a psychological influence upon the jury . . . .”). Thus,

implicit in the defendant’s due process right to be present is the

defendant’s right to be present in the same room as the jury. Cf.

16
People v. Lujan, 2018 COA 95, ¶ 11, ___ P.3d ___, ___ (concluding

that the defendant’s right to a public trial was violated when the

trial court answered the jury’s questions during deliberation in the

absence of the parties, contrary to “proper court practices that

place the jury and parties together”).

¶ 30 Here, Aldridge was removed from the courtroom during a

particularly critical phase of the trial — namely, the alleged victims’

testimony. The jury could not see Aldridge when that testimony

was taken. Thus, the procedure violated not only the statutory

provision, but also Aldridge’s due process right to be present at his

own trial because he was denied any opportunity to exert

psychological influence on the jury.4

4 Section 16-10-402(2)(a)(VI) authorizes, but does not require, the
jury to be in the room with the child witness when he or she
testifies by CCTV. The statute therefore appears to permit a
procedure in which the defendant remains in the courtroom with
the judge, while the prosecutor, defense counsel, and the jury are in
another room with the child witness. We note that such a
procedure may well raise the same due process concerns we
address here because in that scenario the defendant would
similarly be denied the opportunity to exert any psychological
influence on the jury. However, Aldridge did not challenge the
constitutionality of section 16-10-402(2)(a)(VI) in the trial court or

17
¶ 31 Nevertheless, the People maintain that the procedure used

here did not violate Aldridge’s constitutional rights because the

evidence was sufficiently reliable under Craig, 497 U.S. at 857. We

are not persuaded. In Craig, the Supreme Court addressed whether

allowing a child witness to testify by CCTV from outside the

courtroom violated a defendant’s right to confront the witness. See

generally id. at 856-58. Thus, Craig is distinguishable because

here, the defendant was removed from the courtroom and alleges

that the procedure offended his right to be present (not just his

right to confront the witnesses).

¶ 32 As Aldridge asserts, multiple courts have held that the removal

of the defendant from the courtroom during a child witness’s

testimony constitutes error. See, e.g., Price v. Commonwealth, 31

S.W.3d 885, 894 (Ky. 2000) (holding that defendant’s removal from

the courtroom to watch witness’s testimony over CCTV, without

means of continuous audio contact with defense counsel, violated

not only statute, but also defendant’s right to be present); People v.

on appeal, and we therefore express no opinion on the validity of
that provision if implemented in such a fashion.

18
Krueger, 643 N.W.2d 223, 225-26 (Mich. 2002) (concluding

defendant’s removal violated state statute). We join that authority.

¶ 33 In sum, Aldridge’s exclusion from the courtroom during the

children’s testimony, in the absence of a stipulation, violated

section 16-10-402 and his due process right to be present.

E. Constitutional Harmless Error

¶ 34 We review for constitutional harmless error. Under that

standard, we conclude the error requires reversal because the

People have not demonstrated that it was harmless beyond a

reasonable doubt.

¶ 35 As noted, in Rodriguez, the division concluded that

defendant’s erroneous removal from the courtroom did not require

reversal. 209 P.3d at 1155. There, defense counsel generally

“expressed concern” about separating the defendant and the

witness during testimony, but “was noncommittal about whether, if

a closed-circuit television procedure were utilized, the witness or

defendant should remain in the courtroom.” Id. Thus, the division

considered it “not altogether evident” that the defendant had

preserved any objection to her removal. Id. at 1156.

19
¶ 36 In any event, the Rodriguez division concluded that the error

there was harmless beyond a reasonable doubt for two reasons. Id.

at 1158. First, the child witness’s testimony in Rodriguez was

consistent with the defendant’s theory of the case — the defendant

did not contest her role in inflicting abuse on the child, but rather

argued that she acted under duress. Id. at 1159. Second, the

defendant did not demonstrate that the lack of ability to

communicate with her counsel impaired her defense. Id. at 1158-

59; see also id. at 1159 (noting that trial counsel “made no record

below regarding what additional facts he could have inquired about

if he had been permitted constant electronic contact with his

client”).

¶ 37 Here, the People do not contend that any error is rendered less

significant by virtue of Aldridge’s ability to communicate

electronically with his counsel during the children’s testimony.

¶ 38 More significantly, unlike in Rodriguez, the children’s

testimony here was crucial evidence against Aldridge and ran

directly contrary to his theory of the case. Especially because the

alleged victims offered shifting accounts of the assaults and there

was no physical evidence, there is at least a reasonable possibility

20
that the error here contributed to Aldridge’s convictions. Accord

People v. Relaford, 2016 COA 99, ¶ 44, 409 P.3d 490, 498 (noting

that evidentiary errors have been considered reversible in cases

where there was no physical evidence of, or third-party eyewitness

testimony to, alleged sexual assaults).

¶ 39 We also disagree with the People’s contention that there is no

authority that gives a criminal defendant the right to have the jury

observe his or her reaction to witnesses’ testimony. As discussed,

the division in Payne concluded that a defendant has a due process

right to be present in part “because of the psychological influence

his absence or presence may have on the jury.” ¶ 18, 361 P.3d at

1044. Here in particular, Aldridge’s absence during the children’s

testimony may well have been prejudicial because the jury was

prevented from observing the extent of his “emotional meltdown” in

reaction to C.O.’s testimony. Because the jury could not see

Aldridge, he was unable to “exert[] any psychological influence” on

it. Larson, 911 F.2d at 396.

¶ 40 Accordingly, we conclude that the judgment of conviction must

be reversed because Aldridge’s erroneous exclusion from the

21
courtroom during the children’s testimony was not harmless

beyond a reasonable doubt.

III. Other Contentions

¶ 41 We briefly address Aldridge’s remaining contentions to provide

guidance on remand.

A. Credibility Bolstering

¶ 42 Aldridge contends that the trial court erred in permitting

testimony and argument bolstering the alleged victims’ credibility.

¶ 43 Because the precise testimony and argument are unlikely to

arise in the same context on remand, we do not address each

alleged instance of improper bolstering. However, we note two

general principles relevant to Aldridge’s contention: (1) neither lay

nor expert witnesses may give opinion testimony that another

witness was telling the truth on a specific occasion; and (2) it is

impermissible for the prosecutor to express a personal opinion

about the veracity of a witness. See Liggett v. People, 135 P.3d 725,

732 (Colo. 2006) (“[A]sking a witness to opine on the veracity of

another witness is prejudicial, argumentative, and ultimately

invades the province of the fact-finder.”); Domingo-Gomez v. People,

125 P.3d 1043, 1050 (Colo. 2005) (“[P]rosecutorial remarks that

22
evidence personal opinion, personal knowledge, or inflame the

passions of the jury are improper.”). See generally People v.

Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (discussing case law on

testimony regarding child victim’s believability and credibility).

B. Detective’s Testimony

¶ 44 Aldridge contends that the trial court erred in allowing a

detective to offer expert testimony that girls’ underwear found in

Aldridge’s motor home could have been an “erotic trigger.” He

argues that the testimony had little or no probative value and was

highly prejudicial, and that he was deprived of an opportunity to

effectively cross-examine the detective because the People had not

disclosed the detective as an expert witness before trial. For their

part, the People contend that Aldridge opened the door to the

challenged testimony by asking the detective whether he had found

any pornography or “Viagra or anything like that” in the motor

home.

¶ 45 Because this precise issue is unlikely to arise in this context

on remand, we decline to address it. See People v. Weinreich, 98

P.3d 920, 924 (Colo. App. 2004) (declining to address evidentiary

23
issue unlikely to arise “in the same context” on retrial), aff’d, 119

P.3d 1073 (Colo. 2005).

C. Consecutive Sentences

¶ 46 Aldridge contends, the People concede, and we agree that the

trial court erred by imposing consecutive sentences for ten of the

convictions.

¶ 47 Generally, a trial court “has the discretion to impose either

concurrent or consecutive sentences.” Juhl v. People, 172 P.3d 896,

899 (Colo. 2007). However, under section 18-1-408(3), C.R.S. 2017,

“when the district attorney prosecutes two or more offenses based

on the same act or series of acts arising from the same criminal

episode and the defendant is found guilty of more than one count

on the basis of identical evidence, the sentences imposed must run

concurrently.” Juhl, 172 P.3d at 899.

¶ 48 Here, the prosecution alleged that C.O. and L.A. were both

subject to multiple sexual assaults during the charged timeframe,

but did not establish distinct acts of sexual assault. Rather, the

prosecution relied on identical evidence to establish the sexual

assault on a child, sexual assault on a child by one in a position of

trust, and aggravated incest charges as to each victim. Thus, the

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trial court erred in imposing ten consecutive sentences based on

the evidence presented and the jury’s verdicts.

¶ 49 If the jury finds Aldridge guilty of more than one count per

victim on retrial, the trial court must impose sentences in

accordance with section 18-1-408(3), Juhl, 172 P.3d at 899, and

Quintano v. People, 105 P.3d 585, 589-92 (Colo. 2005).

IV. Conclusion

¶ 50 Accordingly, the judgment and sentence are reversed, and the

case is remanded for a new trial.

JUDGE BERNARD and JUDGE WELLING concur.

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