to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner: Cynthia H. Coffman Erin K. Grundy
Attorneys for Respondent: Douglas K. Wilson Jud Lohnes Anne
This case concerns the scope of a trial court's
discretion to permit, deny, or restrict the jury's access
during deliberations to a DVD containing the recorded
statement of a child sexual assault victim, which DVD was
admitted as an exhibit in a criminal trial. The People
challenge the decision of a unanimous division of the court
of appeals, People v. Jefferson, 2014 COA 77M, ___
P.3d___, which concluded that the trial court had abused its
discretion in granting the jury unrestricted access to such
an exhibit and that the error required reversal and a new
trial. According to the People, the division
misconstrued our precedent, including DeBella v.
People, 233 P.3d 664 (Colo. 2010), and the trial court
acted within the bounds of its discretion.
We are not persuaded. Instead, we agree with the division
that the trial court did not employ the requisite caution to
ensure that the DVD would not be used in such a manner as to
create a likelihood that the jury would accord it undue
weight or emphasis. Specifically, the trial court relied on
the court of appeals division's analysis in People v.
DeBella, 219 P.3d 390, 396-97 (Colo.App. 2009),
rev'd, 233 P.3d 664 (Colo. 2010), but this court
reversed the decision in that case. By relying on an analysis
that this court later rejected, the trial court thus
misapplied the law and abused its discretion. Moreover,
because the nature of the DVD and its importance to the
case's resolution leave us with grave doubts as to the
effect that unfettered access had on the verdict and the
fairness of the proceedings, we cannot deem the error
Accordingly, we affirm the judgment of the court of appeals
and remand the case to that court for further proceedings
consistent with this opinion.
Facts and Procedural History
In May 2007, the victim, then-three-year-old J.B., moved to
Denver with her mother and older brother. Dherl Jefferson
befriended the children's mother that summer, after which
J.B. and her brother occasionally spent time at
Jefferson's apartment playing video games and watching
movies. The children called Jefferson "Uncle Dherl,
" and he helped the family financially from time to
time. He also babysat the children "about four
times" between early 2008 and March 2009. On these
occasions, the children's mother would drop them off at
Jefferson's apartment at 5:30 or 6 p.m. and then pick
them up between midnight and 2 a.m. On two occasions,
however, the children spent the night at Jefferson's
On March 9, 2009, J.B. disclosed to her mother that
"Uncle Dherl" had "touched her in a bad
way." Her mother asked whether this had happened more
than once, and J.B. replied, "Yeah, every time we're
over there." Her mother called the police.
The next day, J.B. repeated her allegations in more detail to
a forensic interviewer. The police then arrested Jefferson,
and the People charged him with, as pertinent here, one count
of sexual assault on a child (with a pattern-of-abuse
sentence enhancer) and one count of sexual assault on a child
by one in a position of trust.
Jefferson pleaded not guilty, and his case proceeded to
trial. The jury, however, deadlocked, and the court declared
a mistrial. The prosecution then decided to re-try Jefferson.
This case concerns the second trial, which took place in
2011, more than two years after the abuse had allegedly
At trial, then-seven-year-old J.B. could not recall many
details about the alleged abuse. The prosecution's case
against Jefferson thus hinged on the DVD of J.B.'s
forensic interview and on the hearsay testimony of the
forensic interviewer and of J.B.'s mother and brother.
As pertinent here, after the forensic interviewer had laid a
foundation for the admission of the DVD of J.B.'s
interview, the prosecutor moved to admit it. Jefferson's
counsel acknowledged that the DVD was admissible under the
statutory hearsay exception for statements of child sexual
assault victims, section 13-25-129, C.R.S. (2016), and he
stated that he had "no objection to [its] being played
for the jury." He objected, however, to the DVD's
"being admitted as an exhibit for the jury to consider
over and over and over." Asked to clarify the basis for
his objection, counsel explained that permitting jurors
"to have possession" of the DVD would be
"improper and would allow repetition [and] undue
The court overruled the objection, admitted the DVD as an
exhibit, and stated that it would allow the jury to review
the DVD if and when a juror asked to do so. In so ruling,
however, the court did not opine as to whether the jury would
have unfettered access to the DVD. To the contrary, the court
specifically left that question open and instructed Jefferson
to re-raise his objection at the end of the trial, when the
court would be able to consider all of the evidence presented
and "make [the] particularized finding" required by
"the DeBella case." At that time, the
court would determine whether, "in [its] discretion,
" (1) the jury's review of the DVD needed to be
supervised (i.e., the jury would need to request access to
the DVD) or (2) the jury would "be allowed unsupervised
access" to the DVD.
The prosecutor then played the forty-five-minute DVD for the
jury. During the recorded interview, the forensic interviewer
asked mostly open-ended questions, beginning with whether
"something" had happened. J.B. explained that while
she slept on "Uncle Dherl's" couch, he took her
into his room and "d[id] that nasty stuff" to her.
With J.B.'s input, the interviewer drew diagrams of
Jefferson's living room, where J.B. had slept on the
couch, and Jefferson's bedroom, where J.B. said Jefferson
did "the stuff" to her. When the forensic
interviewer asked J.B. to describe "the stuff, "
she replied that Jefferson "pulled down [her]
panties" and then "rub[bed] [her] bottom" with
his hand. She also said that "he turned [her]
straight" on her back, got "on top of [her], "
and did "sex stuff to her." When asked to clarify,
she said that he "humped" her. The forensic
interviewer then asked J.B. several questions about how
Jefferson had "humped" her, and J.B. explained that
he sat on her and moved his body "up and down."
Asked how this made her body feel, she answered,
"Wiggly." After further questioning, J.B. explained
that Jefferson "kind of squish[ed]" her
"va-jj" (i.e., her vagina) and made her body feel
"mad." She was not sure exactly how often Jefferson
had touched her, stating at first that it was "two
times, I think. Or four" and later that it was
"more than one time."
¶12 After the jurors watched the recording of J.B.'s
forensic interview, the court admonished:
Ladies and gentlemen, in this case you just heard an
out-of-court statement by [J.B.], which has been admitted
into evidence. You're instructed that it's for you to
determine the weight and credit to be given these statements.
In making this determination, you shall consider the age and
maturity of the child, the nature of the statements, the
circumstances under which the statements were made, and any
other evidence which will be admitted in the trial which you
choose to consider for that purpose.
The forensic interviewer then finished testifying, and J.B.
took the witness stand. With leading questions, the
prosecutor prompted J.B. to agree that "[some]thing bad
happened when [she] spent the night at [her] Uncle
Dherl's house." When asked about the details of the
allegations, however, J.B. often answered with "I
don't know" or "I don't remember." She
could not remember, for example, whether Jefferson had used
his wheelchair when he carried her into his room. She did
remember, however, that once they were in his room, Jefferson
had put her on his bed, "pulled down [her] panties,
" and "started rubbing [her] butt." On a body
diagram, J.B. then circled her "butt." She did not
remember whether he had touched her anywhere else that night
or whether he had touched her again on a separate occasion.
When, however, the prosecutor showed her a second body
diagram and asked "where [her] Uncle Dherl's body
touched her" when he was sitting on top of her, J.B.
circled what she called her "pee-pee." She
remembered telling the forensic interviewer that the incident
had made her body feel "wiggly, " but she could not
explain what that meant.
The next day, which was the last day of the trial, the court
revisited the question of whether to allow the jury
unsupervised access to the DVD of J.B.'s forensic
interview, as it had said it would do. The court noted that
the case law, including "the [DeBella]
case" and People v. Frasco, 165 P.3d
701 (Colo. 2007), required it to exercise its discretion and
to consider certain "factors concerning why the DVD
should go to the jury in an unsupervised way." In the
court's view, the DeBella factors included (1)
"whether or not the videotape was admitted as an exhibit
and played for the jury in open court during the trial,
" (2) "whether inculpatory evidence was introduced
at trial in addition to the videotape, " and (3)
"whether the jury was allowed to take notes which would
preserve trial testimony in note form." The court found
that all three factors were present, concluded that each one
weighed in favor of unsupervised access, and noted that it
was exercising its discretion to allow the jury unsupervised
access to the DVD in the jury room.
Jury instructions and closing arguments followed, and
J.B.'s forensic interview played an important role in the
arguments. The People used J.B.'s recorded words to prove
the allegations against Jefferson, and Jefferson argued that
the interview was suggestive and that its contents were
inconsistent with J.B.'s trial testimony. During her
rebuttal argument, the prosecutor then told the jury:
[T]he [DVD] is part of evidence [sic]. And if you want to
review it again, you certainly can do so in the jury room.
And then you can review it and decide for yourself. And
I'm not going to argue about what was said or was not
said in the [DVD].
After the arguments, the court excused the jury to
deliberate. About four hours later, the jury returned with a
verdict, finding Jefferson guilty of one count of sexual
assault on a child and one count of sexual assault on a child
by one in a position of trust. The jury further found,
however, that the prosecution had not proved beyond a
reasonable doubt that Jefferson had committed the sexual
assault as part of a pattern of abuse. The court entered a
judgment of conviction and, at the subsequent sentencing
hearing, imposed an indeterminate prison term of ten years to
life with lifetime mandatory parole.
Jefferson appealed, arguing that the trial court had
reversibly erred in giving the jury "unrestricted and
unsupervised access" during deliberations to the DVD of
J.B.'s forensic interview. Jefferson, ¶ 8.
The division ultimately agreed, concluding that although the
trial court had affirmatively exercised its discretion when
it decided not to exercise control over the jury's access
to the DVD, the court had abused that discretion by relying
on the factors outlined in the court of appeals
division's opinion in DeBella, 219 P.3d at
396-97. Jefferson, ¶ 16. The division viewed
the pertinence of the factors discussed by the
DeBella division as "at best, unclear, "
given that this court later reversed the division's
decision. Id.; see DeBella, 233 P.3d at
Nor did the division deem the factors on which the trial
court had relied persuasive on their merits. It regarded two
of the factors-(1) that the DVD had already been admitted
into evidence and played in open court and (2) that the jury
had been allowed to take notes-as "insufficient to
support a reasonable conclusion that the trial court need not
control the jury's access" to the DVD.
Jefferson, ¶¶ 20-23. The division
considered the third factor-the existence of other
incriminating evidence-irrelevant to the question of juror
access and salient only "to whether any error in
refusing to restrict such access was harmless or
reversible." Id. at ¶ 24.
In light of the foregoing, the division concluded that the
trial court should have exercised "some form of control
over the jury's access to, or consideration of, the
victim's videotaped statements." Id. at
¶ 18. The division suggested, for example, that the
trial court might have (1) replayed the DVD for the jury in
open court under the supervision of court personnel, (2)
instructed the jury to watch the DVD no more than a specific
number of times, or (3) instructed the jury not to give any
special weight to the DVD. Id. at ¶ 19.
The division further concluded that the trial court's
error was not harmless because it cast "grave
doubt" on the verdict or the fairness of the
proceedings. Id. at ¶¶ 25-26. In so
ruling, the division specifically noted that, like the
videotape in DeBella, the DVD of J.B.'s
interview had played a "gap-filling role, "
supplying details of the assault that had been missing from
J.B.'s testimony. Id. at ¶ 29. The division
thus reversed the judgment of conviction and remanded the
case for a new trial. Id. at ¶ 38.
The People petitioned for certiorari, and we granted the
petition to consider their argument that the division
misinterpreted our precedent by requiring a trial court to
impose restrictions on the jury's access to
witnesses' videotaped statements during deliberations.
We begin by clarifying the issue now before us. We then
address the applicable standard of review. Finally, we
proceed to discuss the merits of the People's challenge.
The Issue Now Before Us
As an initial matter, we note that the People characterized
the question before us as whether the division had
erroneously expanded DeBella to require actual
restrictions on a jury's access to testimonial electronic
exhibits, rather than a case-by-case analysis of whether
restrictions are appropriate. This recitation, however,
misstates the division's holding. Specifically,
notwithstanding the People's argument to the contrary,
the division did not require actual restrictions on jury
access to electronically recorded exhibits. Nor did the
division expand DeBella. Rather, as set forth above,
the division perceived an abuse of discretion under
DeBella because the trial court had relied on
factors that, in the division's view, did not alleviate
the risk that the jurors would give the DVD at issue undue
Accordingly, we view the question presented as whether the
trial court abused its discretion in allowing the jurors