v. Yachik

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
June 25, 2020

2020COA100

No. 17CA0444, People v. Yachik — Evidence — Res Gestae

A division of the court of appeals considers whether the trial

court erroneously admitted evidence that defendant repeatedly

subjected the victim to extreme physical abuse as res gestae for the

charged sexual assaults. This evidence was admitted at trial on the

theory that it provided the jury with context for the family dynamics

and background against which the charged crimes occurred.

However, the division concludes that it was irrelevant, prejudicial,

and encouraged the jury to convict defendant based upon the

impermissible inference that he had a bad character. Therefore, the

division concludes that the trial court abused its discretion by

admitting the physical abuse evidence as res gestae.
The division also considers two issues that are likely to arise

on remand: the admission of expert testimony about “negative

grooming” and the prosecution’s theme in closing argument that

defendant “groomed the jury” throughout the trial.

The division concludes that, should the prosecution seek to

admit such expert testimony in defendant’s new trial, the trial court

shall make specific findings on the record regarding the relevance

and reliability of the evidence before deciding whether to admit it.

Finally, comments that defendant “groomed the jury” are improper

and shall not be permitted.

Accordingly, the division reverses and remands for a new trial.
COLORADO COURT OF APPEALS 2020COA100

Court of Appeals No. 17CA0444
Larimer County District Court No. 15CR1475
Honorable Gregory M. Lammons, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremy Neal Yachik,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE ROMÁN
Tow and Pawar, JJ., concur

Announced June 25, 2020

Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jeremy Neal Yachik, appeals the judgment of

conviction entered on jury verdicts finding him guilty of two counts

of sexual assault on a child by one in a position of trust as part of a

pattern of abuse against his biological daughter, S.Y. See

§ 18-3-405.3(1), (2), C.R.S. 2019. Specifically, he contends that the

trial court erred by erroneously admitting evidence that he

subjected S.Y. to physical abuse. This evidence was proffered by

the prosecution — and accepted by the trial court — as res gestae

of the family dynamics and background against which the charged

crimes occurred. Additionally, defendant contends that the court

erroneously admitted unreliable and irrelevant expert testimony

about “negative grooming,” without making specific findings

regarding its admissibility. How the prosecution used the physical

abuse evidence and the expert testimony about grooming in its

case-in-chief and closing argument form the basis of defendant’s

third contention: prosecutorial misconduct. In particular,

defendant challenges the prosecution’s multiple comments made

during closing argument that defendant “groomed the jury”

throughout the trial.

1
¶2 For the reasons that follow, we conclude that defendant’s

convictions must be reversed and the case remanded for a new trial.

I. Background

¶3 According to the People’s evidence, the first charged sexual

assault happened around August 2010 after defendant came home

from the hospital, where his son was being treated for a severe

illness. S.Y., who was in the eighth grade, had stayed home from

school that day. Defendant told S.Y. he heard a radio show about

daughters who wanted to date their fathers before asking her to lie

down on his bed and pull down her pants. He then inserted a

vibrator into her vagina. She removed it and put her pants back

on. Defendant got on top of her and threatened to rape her if she

told anyone what happened. Then he took a nap.

¶4 The second charged incident occurred in 2011 or 2012, when

S.Y. was in ninth grade. She was cleaning dishes at the kitchen

sink when defendant came up behind her and put one hand on her

breasts and another hand near her vagina. S.Y. was fully clothed at

the time. Defendant stopped when she told him she thought

someone was coming downstairs.

2
¶5 S.Y. told defendant’s ex-girlfriend about these incidents

around August 2014. S.Y. was living with the ex-girlfriend, who

was involved in an ongoing custody dispute with defendant over

their son.

¶6 The People charged defendant with two counts of sexual

assault on a child. At trial, the People introduced extensive and

graphic evidence of the physical abuse defendant perpetrated

against S.Y. and asserted that he groomed her and the jury to get

away with his wrongdoing. They painted a picture of a controlling

defendant and a fearful victim.

¶7 The jury found defendant guilty as charged. He received

consecutive sentences of sixteen years to life on each charge.

II. Res Gestae Evidence

¶8 Defendant contends that the trial court erroneously admitted

evidence that he repeatedly subjected S.Y. to “horrific acts of child

abuse” as res gestae for the charged sexual assaults. He

specifically asserts that this evidence was not only irrelevant and

highly prejudicial, but it encouraged the jury to convict him of the

charged sexual assault crimes based on prior misconduct and

“perceived bad character.”

3
¶9 The People respond that the trial court properly admitted this

evidence as res gestae because it helped the jury understand (1) the

control defendant exercised over S.Y.; (2) why she lied to protect

him; and (3) why she delayed reporting despite frequent contact

with law enforcement and human services.

¶ 10 Because we agree this was improperly admitted as res gestae

evidence, we reverse and remand.

A. Relevant Facts

¶ 11 In 2013, defendant’s ex-girlfriend sent a video to law

enforcement showing defendant hitting and kicking S.Y. for taking

carrots from the refrigerator without permission (the carrot video).

The carrot video prompted an investigation that resulted in

defendant being charged with, and pleading guilty to, misdemeanor

child abuse.

¶ 12 In 2016, the prosecution in the sexual assault case filed a

pretrial motion seeking to admit as res gestae the carrot video and

other physical abuse evidence collected during the 2013 child abuse

investigation. According to the prosecution, the physical abuse

evidence was “part and parcel of th[e] evolving [sexual assault]

criminal episode.” The sexual abuse allegations and the physical

4
abuse “involve[d] the same period of time” and “[a]ny observations of

the defendant’s behavior towards [the victim] during and near that

time period [were] crucial to give context and explain the entire

criminal episode.”

¶ 13 Defense counsel objected because “the child abuse allegations

[were] not integral to the charges,” were “not relevant,” and “the

minimal probative value [was] vastly outweighed by their prejudicial

impact.” Instead, the prosecution was seeking to “convict

Defendant of the current charges based upon his perceived bad

character and alleged prior bad acts.” Defense counsel pointed out

that the child abuse involved “physical punishment or deprivations

for bad behavior,” not punishments to procure sex. And, in the

sexual assault case filings, there were no similar allegations that

defendant sexually assaulted S.Y. because she behaved badly or as

a form of punishment. Moreover, according to defendant, the

“story” of the sexual assaults could be understood without any

reference to the physical abuse. Therefore, defense counsel

contended that the evidence should not be admitted under res

gestae, CRE 403, or any other theory.

5
¶ 14 The district court admitted the evidence as res gestae. In a

written order, it ruled that

[t]he family dynamics and interactions between
the Defendant and alleged victim are relevant
to give context to the jury. They are relatively
contemporaneous in time and involve the same
actors. That said, it is not proper for the
People to introduce any evidence regarding
charges or convictions that arose out of
L13M1456 [the child abuse case]. Whether the
Defendant wishes to do so is his decision. The
Court notes that in the Defendant’s Motion for
Specific Discovery, he asserts that L13M1456
contains exculpatory information related to the
charged offenses. It is inconsistent to now
assert that the two cases are not relevant to
one another.

The court did not address Rule 403 in its written ruling.

¶ 15 At trial, S.Y. testified extensively about the physical abuse that

defendant perpetrated against her “almost daily” during the years

that she lived with him. At the prosecutor’s prompting, she detailed

for the jury how defendant would force her to eat hot sauce

concoctions, zip tie her hands behind her back and lock her in a

dark room for hours, kick her, beat her, choke her, spray her eyes

with police department grade pepper spray, deprive her of food, and

force her to endure extreme exercise without rest. She also

6
described the scars she still had from those experiences and the

stomach problems that still caused her pain.

¶ 16 Defendant’s ex-girlfriend also testified that defendant

physically abused S.Y. “[a]lmost on a daily basis.” While she

described many of the same incidents of abuse that S.Y. had, she

also described how S.Y. was forced to sleep outside and was hit

with “a spatula, wooden spoons, [and a] belt.” She even testified

that the “abuse was getting so severe that [she] was afraid

[defendant] was going to kill [S.Y.].”

¶ 17 At the close of evidence, the parties discussed a limiting

instruction on the res gestae. Although such an instruction was

not required, the court was “convinced in this case it is

appropriate . . . because we’ve heard so much about the child

abuse.” So the court gave the following instruction:

The Defendant is not charged with child abuse
in this case. The evidence you heard related to
the allegations of physical abuse of [S.Y.] has
been admitted for the limited purpose of
providing the jury with a full and complete
understanding of the events surrounding the
charged crimes and the context in which the
charged crimes occurred.

7
¶ 18 In closing argument, the prosecutor reminded the jury of the

physical abuse evidence:

And I know the defense, they will say, think
about how crazy it is that a guy would come
home from dropping his kid off at the hospital
and commit this and take a nap. But keep in
mind, you are not thinking and analyzing his
actions from a rational person such as
yourself. You’ve got to think about this from
the perspective of someone who wants to
commit that sexual assault on a child and
would do the behaviors that you saw on that
[carrot] video and do the behaviors that are
described. You can’t look at that in a, well, I
wouldn’t do that, because you wouldn’t do the
rest of it.

¶ 19 The prosecutor implored the jury to watch the carrot video

during its deliberations and asked it to “[l]ook at that evidence,

think about what this girl went through, think about what she told

you and described,” and find defendant guilty.

B. Standard of Review and Applicable Law

¶ 20 “We review the admission of evidence for an abuse of

discretion.” People v. Trujillo, 2014 COA 72, ¶ 60. A court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair. Id.

8
¶ 21 “All relevant evidence is admissible unless otherwise provided

by constitution, statute, or rule.” Yusem v. People, 210 P.3d 458,

463 (Colo. 2009) (citing CRE 402). Relevant evidence is evidence

that has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Id. (quoting

CRE 401). But relevant evidence can be excluded “if its probative

value is substantially outweighed by the danger of unfair prejudice”

or “if it is used to prove the character of a person in order to show

that he acted in conformity with that character on a particular

occasion.” Id. (citing CRE 403, 404(b)).

¶ 22 Evidence of other crimes, wrongs, or acts cannot be

introduced to show a person acted in conformity with his or her bad

character. CRE 404(b); People v. Spoto, 795 P.2d 1314, 1318 (Colo.

1990). “This rule is based upon the fear that the jury will use

evidence that the defendant has committed other bad acts to

convict the defendant of the charged offense.” People v. Quintana,

882 P.2d 1366, 1372 (Colo. 1994). “‘Other act’ evidence, however,

generally occurs at different times and under different

circumstances from the charged offense.” Id. By contrast,

9
“[e]vidence that is contemporaneous with and serves to illustrate

the character of the crime charged” does not fall under CRE 404(b),

but rather is res gestae evidence. People v. Rollins, 892 P.2d 866,

873 (Colo. 1995).

¶ 23 Res gestae evidence “provides the fact-finder with a full and

complete understanding of the events surrounding the crime and

the context in which the charged crime occurred, including events

closely related in time and nature to the charged offense.” People v.

Martinez, 24 P.3d 629, 633 (Colo. App. 2000); see also Quintana,

882 P.2d at 1373 (“Evidence of other offenses or acts that is not

extrinsic to the offense charged, but rather, is part of the criminal

episode or transaction with which the defendant is charged, is

admissible to provide the fact-finder with a full and complete

understanding of the events surrounding the crime and the context

in which the charged crime occurred.”). Res gestae is “matter

incidental to the main fact and explanatory of it, including acts and

words which are so closely connected therewith as to constitute a

part of the transaction, and without knowledge of which the main

fact might not be properly understood.” Rollins, 892 P.2d at 872-73

(quoting Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991)).

10
¶ 24 Res gestae evidence need not meet the procedural

requirements of Rule 404(b) but is instead admissible if it is

relevant and if its probative value is not substantially outweighed

by the danger of unfair prejudice. People v. Czemerynski, 786 P.2d

1100, 1109 (Colo. 1990).1

C. Analysis

¶ 25 We are not persuaded that the physical abuse evidence was

admissible as res gestae of the charged sexual assaults because the

incidents are not “inextricably intertwined,” People v. Coney, 98

P.3d 930, 933 (Colo. App. 2004), such that the physical abuse

evidence was “necessary to complete the story” of the sexual

1Defendant argues that res gestae is a “discredited” doctrine that
has been abrogated by the Colorado Rules of Evidence. However,
our supreme court has acknowledged and analyzed the res gestae
doctrine in numerous cases. See, e.g., Zapata v. People, 2018 CO
82, ¶¶ 58-60; People v. Quintana, 882 P.3d 1366, 1373 (Colo. 1994).
But see Zapata, ¶ 76 (“There is . . . good reason for this court, in an
appropriate case, to consider whether the doctrine [of res gestae]
has been rendered obsolete by modern rules of evidence. It is a
vague and nearly standardless concept that is applied too
expansively to admit otherwise inadmissible evidence.”) (Hart, J.,
specially concurring). Because we are bound to follow supreme
court precedent, we decline defendant’s invitation to reconsider the
doctrine in this case. People v. Harmon, 2019 COA 156, ¶ 3 n.1.

11
assaults for the jury, People v. Miranda, 2014 COA 102, ¶ 47

(citation omitted).

1. Admissibility as Res Gestae

¶ 26 The prosecutor elicited testimony throughout defendant’s trial

about the extreme physical abuse that S.Y. endured. According to

the People, this evidence was relevant to show the family dynamics

and interactions between defendant and S.Y. and also to explain

why S.Y. delayed reporting.2

¶ 27 But the physical abuse evidence was not critical to the jury’s

understanding of the charged crimes because nothing in the record

linked those incidents in time or circumstance. Indeed, S.Y.

testified about the sexual assaults without making any reference to

physical abuse. In response to the prosecutor’s question about

whether she feared physical abuse if she told anyone about the

vibrator incident, S.Y. answered “[n]o, I did not.” Instead, she

believed she would be in “big trouble” if she told anyone, meaning

she would “just be grounded.”

2 The prosecution did not seek to admit the physical abuse evidence
for any of these specific purposes under CRE 404(b); however, we
discuss Rule 404(b) in greater detail infra Part II.C.2.

12
¶ 28 The physical abuse evidence certainly gave the jury a clearer

picture of the violence and volatility S.Y. suffered at home, but the

jury did not need to know about the pepper spray, hot sauce

concoctions, choking, and food deprivation to understand the

“story” of the sexual assaults. This conclusion is made more

apparent because there is no evidence S.Y. was physically abused

in connection with the sexual assaults (i.e., to procure sex, to

punish her for resisting sexual advances, or to secure her silence).

Cf. People v. Mosley, 2019 COA 143, ¶ 37 (cert. granted Mar. 30,

2020) (describing res gestae as evidence that is “generally so

intertwined with the time and circumstances of the offense that its

exclusion would leave a void in the account”). Instead, S.Y. was

punished for alleged lying, poor communication, and not doing her

chores.

¶ 29 The prosecution also suggested at trial that the ongoing threat

of physical abuse might have explained why S.Y. delayed reporting

the sexual assaults. Cf. People v. Rojas, 2020 COA 61, ¶ 43

(Furman, J., dissenting) (“Res gestae evidence is evidence of acts or

words that are integral, natural, or necessary parts of the crime, not

of the investigation of the crime.”). But when S.Y. was asked why

13
she had not reported earlier, she provided various reasons,

including that she “didn’t know why,” she must have “forgotten” to

mention it, she did not know what would happen to herself and her

little brother, she was not sure where she would live, she did not

want to ruin defendant’s relationship with his ex-girlfriend, she was

ashamed, and defendant told her not to say anything.

¶ 30 Thus, rather than being “an integral and natural part of an

account of [the] crime” or “necessary to complete the story of the

crime for the jury,” People v. Abu-Nantambu-El, 2017 COA 154, ¶ 39

(quoting People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009)), aff’d,

2019 CO 106, the physical abuse evidence described specific

instances of defendant’s prior bad acts and showcased his bad

character at various times and of a dissimilar nature to the charged

crimes. The physical abuse was extrinsic to the charged sexual

assaults and, as such, cannot be characterized as res gestae. See

Rollins, 892 P.2d at 873 (concluding that defendant’s three

uncharged sexual incidents against victim were not res gestae in

sexual assault trial because they occurred under different

circumstances and in different locations than the charged conduct).

14
¶ 31 Contrary to the People’s assertions, the situation here is

unlike those in Quintana, Mosley, Miranda, and Rojas. In each of

those cases, res gestae was admissible because it related to the

charged crime and filled an evidentiary gap without which the jury

might be left confused.

¶ 32 In Quintana, 882 P.2d at 1373-74, the supreme court

considered whether three statements the defendant made about

killing people were admissible in his murder trial. The court

concluded the statements were res gestae of the charged crimes

because they were made during and immediately after the murder,

were “all linked in time to a single criminal episode,” “form[ed] a

natural part of the criminal episode as a whole,” and “serve[d] to

illustrate the character of defendant’s actions.” Id. at 1374.

Specifically, the statements allowed the jury to “view the criminal

episode in context and to draw appropriate inferences from the

evidence.” Id.

¶ 33 In Mosley, a division of this court affirmed the admission as

res gestae of evidence showing that defendant was involved in an

altercation in a strip club before the charged assault in a parking

lot. 2019 COA 143. “Importantly, the two incidents were estimated

15
to have taken place between ten and twenty minutes apart, and the

evidence was relevant to establish the character of Mosley’s

actions.” Id. at ¶ 38. That is, the evidence showed not only why the

defendant left the club, but also why he was angry and aggressive

when he encountered the victims, whom he believed were part of

the same group he confronted inside the club. Id. at ¶¶ 33, 38.

¶ 34 And in Miranda, ¶ 41, the defendant challenged the admission

as res gestae of seven instances showing that he had groomed the

victim and engaged in escalating sexual behaviors with her. The

prosecutor argued that this evidence “help[ed] illustrate for the jury

the relationship between [Miranda] and the victim, and the ongoing

sexualized grooming behavior of [Miranda] that played into, and set

the stage for, the crimes charged against him.” Id. at ¶ 43. Without

such evidence, the jury might be left with “the mistaken impression

that the two instances charged as crimes occurred out of the blue.”

Id. A division of this court concluded the evidence was admissible

because the charged offenses and grooming acts occurred over

“approximately the same two-year period” and “showed ‘a highly

sexualized relationship as initiated by the defendant,” which was

“probative of his intent.” Id. at ¶¶ 51-52. And the res gestae

16
showed a “clear pattern of repeated criminal and sexual conduct,”

including “rewards and punishment based on compliance with

[defendant’s] sexual demands.” Id. at ¶ 53 (citation omitted); see

also People v. Rudnick, 878 P.2d 16, 18-19 (Colo. App. 1993)

(upholding admission of res gestae evidence of defendant’s heated

argument prior to a traffic altercation, which resulted in the

defendant firing at, and killing, the driver of the other vehicle).

¶ 35 And finally, in Rojas, ¶ 13, the defendant contended that the

trial court erroneously admitted res gestae of a false application for

food stamps in her trial for making another false application. A

majority of the division disagreed, concluding that the res gestae

was probative of the defendant’s “mental state and intent to

knowingly provide false information on food stamp applications,

and it demonstrated that she had knowingly received a thing of

value of another by deception,” and so was “‘part and parcel’ of the

crime charged.” Id. at ¶ 22 (quoting Callis v. People, 692 P.2d 1045,

1051 n.9 (Colo. 1984)).

¶ 36 This case is distinguishable from each of those cases. The

physical abuse evidence does not fill in any missing pieces in the

“story” of the sexual assaults nor does it assist the jury in drawing

17
appropriate inferences from the evidence. For instance, there is no

evidence here of “a highly sexualized relationship” between

defendant and S.Y. or escalating sexual demands or conduct. Cf.

Miranda, ¶¶ 51-52. Additionally, there is no evidence that

defendant punished S.Y. based on her compliance (or lack thereof)

with his sexual demands, and S.Y. denied fearing physical abuse if

she told anyone about the sexual assaults. And, unlike in Rojas,

the People do not assert, and the evidence does not support, that

the physical abuse evidence provided a motive or intent for the

sexual assaults. To the contrary, S.Y. and defendant’s ex-girlfriend

testified that the physical abuse was punishment for S.Y.’s other,

unrelated bad behaviors.

¶ 37 For all these reasons, we conclude that the trial court abused

its discretion by admitting the physical abuse evidence as res

gestae.

2. Harmless Error

¶ 38 Where, as here, an error is preserved by a contemporaneous

objection, we review it for harmlessness. Hagos v. People, 2012 CO

63, ¶ 12. Under this standard, reversal is warranted if the error

affects the substantial rights of the parties, meaning that it

18
“substantially influenced the verdict or affected the fairness of the

trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342

(Colo. 1986)); see also Zapata v. People, 2018 CO 82, ¶ 61.

¶ 39 In making this determination, we consider “the specific nature

of the error committed and the nature of the prejudice or risk of

prejudice associated with it.” Zapata, ¶ 62 (quoting Crider v. People,

186 P.3d 39, 43 (Colo. 2008)).

¶ 40 For guidance on whether this error is harmless, we look to the

Colorado Supreme Court’s Zapata decision. In that case, the

defendant appealed his convictions for attempted first degree

murder and first degree assault against a convenience store clerk.

Id. at ¶ 2. He asserted that the trial court erroneously admitted res

gestae of his “threatening, harassing, and physically abusive

behavior” toward his ex-girlfriend and others close to her to show

his jealousy and motive to attack the victim. Id. at ¶¶ 15, 57. The

supreme court concluded, however, that any error was harmless.

The “record reveal[ed] strong evidence” of defendant’s guilt,

including incriminating photographs, text messages, and

surveillance video footage. Id. at ¶ 66. “[G]iven the strength of the

other evidence against Zapata and the implausibility of [his]

19
‘innocent bystander’ theory of the case, [the supreme court did] not

believe the uncharged misconduct was so prejudicial as to

substantially influence the verdict or impair the fairness of the

trial.” Id. at ¶ 67.

¶ 41 Conversely, in this case, there exists a very real probability

that the physical abuse evidence “substantially influence[d] the

verdict” and “impair[ed] the fairness of the trial.” Id. Indeed, the

way the prosecution used the physical abuse evidence in its closing

highlights its harmfulness and the impropriety of its admission.

Multiple times, the prosecutor implored the jury to revisit the carrot

video and remember “what [the] victim went through.” The

prosecutor also asked whether it was “so unbelievable that [the

victim] was scared to disclose the [sexual] abuse when that’s what

her daily life was?” And, the prosecutor explained that the victim’s

memory loss made sense because there were only three incidents3

of sexual assault but daily incidents of physical abuse.

3 S.Y. testified that, when she was six years old, there were a few
times when she would get out of the bathtub and defendant would
ask to check her bottom “to make sure [she] cleaned it right.” He
told her to bend over and look away, then she felt something “hard”
and “wet” on her behind. These incidents were not charged;

20
¶ 42 On this record, we conclude the error in admitting the

evidence as res gestae was not harmless. Reading through the trial

transcript, one might easily forget that defendant was on trial for

sexual assault and believe he was also on trial for charges of child

abuse. The prosecutor used this evidence to paint the defendant in

a bad light and appeal to the jury’s emotions. Thus, the physical

abuse evidence “served the prohibited purpose of demonstrating the

defendant’s purported threatening and violent bad character,” and

nothing more. Id. at ¶ 73 (Hart, J., specially concurring).

¶ 43 Further, we conclude there is a reasonable probability that the

graphic, extensive, and detailed physical abuse evidence

contributed to defendant’s conviction. And although the court gave

a limiting instruction,4 it merely said that the evidence could be

used for “context.” It did not instruct the jury that defendant could

however, they were listed on the verdict forms as an “additional act”
for the jury’s consideration of whether defendant committed the
charged conduct as part of a pattern of abuse.
4 We recognize that no limiting instruction is required when

evidence is admitted as res gestae. People v. Griffiths, 251 P.3d
462, 467 (Colo. App. 2010). Nevertheless, because the trial court
provided one, it is appropriate to consider whether the instruction
may have mitigated any error. See People v. Thomeczek, 284 P.3d
110, 114-15 (Colo. App. 2011).

21
not be convicted because he was physically abusive, and it did not

limit the use of the evidence to explain why S.Y. did not report the

sexual assaults. Because the jury’s consideration of the res gestae

was not limited to a specific purpose, the prosecutor repeatedly

encouraged it to keep the physical abuse evidence at the top of its

mind when deliberating on whether defendant was guilty of the

charged sexual assaults. Thus, the limiting instruction itself was

deficient and did nothing to mitigate the harm to defendant of the

admission of the res gestae evidence. See Yusem, 210 P.3d at 470

(“Additionally, the jury instructions did nothing to limit the

prejudice and arguably served only to confuse the jury and permit

them to rely on the inference of bad character.”).

¶ 44 The People make the alternative argument that, even if the

evidence was not admissible as res gestae, its admission was

harmless because it could have been admitted under CRE 404(b).

Before admitting Rule 404(b) evidence, a trial court must make

pertinent findings regarding the admissibility of the other bad act

evidence. See People v. Garner, 806 P.2d 366, 372 n.4 (Colo. 1991);

Spoto, 795 P.2d at 1318. Failure to do so is not reversible error if

the record supports the trial court’s admission of the evidence.

22
People v. Martinez, 36 P.3d 154, 158 (Colo. App. 2001). However,

the trial court here did not exercise its discretion in this context, so

we are not equipped on this record to determine whether the

evidence would have been admissible on these grounds.

¶ 45 In addition, had the trial court admitted this evidence under

Rule 404(b), the required limiting instruction would have identified

the particular evidentiary purpose for which the evidence was

admitted, rather than merely stating that the evidence was “for

context.”

¶ 46 Thus, although we conclude that the admission of the

evidence as res gestae was not harmless, we express no opinion as

to whether on retrial the physical abuse evidence would be

admissible under Rule 404(b).

¶ 47 Because we cannot say with fair assurance that the error in

admitting this evidence did not substantially influence the verdict,

we reverse defendant’s convictions and remand the case for a new

trial in which this evidence should be excluded.

III. Other Contentions

¶ 48 Because we anticipate that these issues may arise on remand,

we briefly address defendant’s contentions that the trial court

23
erroneously admitted expert testimony about offender grooming

behaviors and that the prosecutor committed misconduct by

arguing that defendant “groomed the jury.”

A. Expert Testimony on Grooming

¶ 49 Kandy Moore testified for the prosecution as a blind expert.5

The defense raised objections pretrial about the reliability and

relevance of her testimony and maintained a continuing objection to

her trial testimony.

¶ 50 The prosecution offered Moore as an expert in several areas,

including the “behaviors and dynamics of adult perpetrators of

sexual abuse, including grooming and the use of intimidation and

isolation.” Without making specific findings or providing a detailed

explanation, the court found “that she meets the qualifications

under [CRE] 702 and also under [CRE] 403, and she is accepted as

an expert and may render opinions in the areas of expertise.”

5 “A ‘blind’ or ‘cold’ expert knows little or nothing about the facts of
a particular case, often has not met the victim, and has not
performed any forensic or psychological examination of the victim
(or the defendant).” People v. Cooper, 2019 COA 21, ¶ 2 (cert.
granted Mar. 2, 2020) (citation omitted).

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¶ 51 During her direct examination, Moore described her

professional experience, including the years she had spent

counseling convicted sex offenders and adults who had been

sexually assaulted as children.

¶ 52 Moore then testified about grooming.6 She explained that

grooming is “the offender’s plan to keep the child quiet so that the

child doesn’t tell what’s going on and to fool all the rest of us about

what’s really happening.” She testified that “[o]ffenders groom the

child victim, the parents of the child, they groom all of us as a

community. Even after they’re convicted, they try to groom

probation and treatment providers. It’s just their way of life for

them.” She continued, explaining that grooming “tends to be pretty

pleasurable . . . things like bribing, buying things for the victim to

keep them quiet, giving them special privileges, treating them

specially.” But it can also be “very intimidating. It can be very

6 Significantly, part of Moore’s testimony about grooming occurred
before she was offered by the prosecution, and accepted by the trial
court, as an expert. The court noted this error later, outside the
jury’s presence, commenting that this testimony was “frankly . . .
expert opinion before [Moore] was qualified.”

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harsh and very mean,” including “punishing the child.” The

prosecutor labeled these latter activities “negative grooming.”

¶ 53 A trial court has “broad discretion to determine the

admissibility of expert testimony.” People v. Ornelas-Licano, 2020

COA 62, ¶ 42 (quoting Golob v. People, 180 P.3d 1006, 1011 (Colo.

2008)). In exercising that discretion, the court must act as a

“gatekeep[er]” and assure that specialized testimony is “reliable,

relevant, and helpful to the jury.” People v. Prieto, 124 P.3d 842,

849 (Colo. App. 2005). In furtherance of this duty, our supreme

court has consistently required that trial courts

admitting evidence pursuant to CRE
702 . . . determine and make specific findings
on the record, not only as to the reliability of
the scientific principles upon which the expert
testimony is based, . . . but also the usefulness
of such testimony to the jury, including
specific findings with regard to the court’s
obligation pursuant to CRE 403 . . . .

Ruibal v. People, 2018 CO 93, ¶ 12 (citing People v. Shreck, 22 P.3d

68, 70, 77-78 (Colo. 2001)). This requirement has been

“unwavering.” Id. at ¶ 13.

¶ 54 Here, the court’s reference in its ruling to Rules 702 and 403

indicates its “awareness of the applicable standard[s],” but “the

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requirement for specific findings is not satisfied by this inference

alone.” Id. at ¶ 14. As gatekeeper, the trial court needed to make

specific findings on the record about the reliability, relevance, and

usefulness of Moore’s testimony, including the concept of “negative

grooming,” before exercising its discretion whether to admit it. See

id. at ¶ 12; id. at ¶ 14 (“In light of the broad range of expertise

governed by the rule and the necessarily non-specific nature of the

factors governing the reliability, relevance, and incremental

probativeness of expert opinion in any given case, the requirement

for specific findings is imposed as a means of ensuring meaningful

review of this broadly discretionary decision.”).

¶ 55 Accordingly, should the prosecution seek to admit this expert

testimony in defendant’s new trial, the trial court shall make

specific findings on the record regarding the relevance and

reliability of the evidence before deciding whether to admit it.

B. Prosecutorial Misconduct

¶ 56 Finally, we address the novel issue of the “groomed jury.”

Throughout closing argument, the prosecutor adopted a grooming

theme. He began by reminding the jury of Moore’s testimony and

then went one step further and argued that defendant, his counsel,

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and the entire defense that the jury had witnessed throughout the

trial was merely an attempt to groom the jury. Defense counsel

objected. The trial court forbade the prosecutor from arguing that

defense counsel had groomed the jury, but it permitted the

prosecutor to continue arguing that defendant had groomed the

jury.

¶ 57 We evaluate a claim of improper closing argument as a whole

and in light of the entire record. People v. Knight, 167 P.3d 147,

156 (Colo. App. 2006).

¶ 58 “[A] prosecutor, while free to strike hard blows, is not at liberty

to strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048

(Colo. 2005) (quoting Berger v. United States, 295 U.S. 78, 88

(1935)). Here, the prosecutor’s challenged comments regarding

defendant grooming the jury were repeated blows that violated

defendant’s right to due process and a fair trial by an impartial

jury. See Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

¶ 59 By taking the expert’s grooming testimony and arguing that it

applied directly to the jury, the prosecutor crossed the line from

permissible commentary on the evidence to impermissible

commentary not only about defendant’s character, but also about

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the jury. See People v. Serra, 2015 COA 130, ¶ 88 (condemning

arguments implying the defendant has a “bad character”). This

argument appealed to the passions and prejudices of the jury,

encouraging it to view defendant in a negative and manipulative

light. See Domingo-Gomez, 125 P.3d at 1048-49. In a sense, it is a

type of “golden rule” argument that put the jury on similar footing

with S.Y.: both victims of defendant’s control and grooming. These

arguments are improper because they “encourage the jury to decide

the case based on personal interest and emotion rather than on a

rational assessment of the evidence.” People v. Munsey, 232 P.3d

113, 123 (Colo. App. 2009). Essentially, the prosecutor argued

that, if the jury believed defendant, it was only because he had

succeeded in grooming them. Who among us, after all, wants to be

accused of being controlled and groomed by a criminal defendant

on trial?

¶ 60 These comments were frequent and improper. On remand, the

trial court should not permit the “groomed jury” comments.

IV. Conclusion

¶ 61 We reverse defendant’s convictions and remand for a new trial.

JUDGE TOW and JUDGE PAWAR concur.

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