and County of Denver District Court No. 13CR1748 Honorable
Martin F. Egelhoff, Judge Honorable John W. Madden, IV,
Cynthia H. Coffman, Attorney General, Brian M. Lanni,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Katherine
Brien, Deputy State Public Defender, Denver, Colorado, for
and Navarro, JJ., concur.
1 Defendant, Leroy Salas, appeals his judgment of conviction
and sentence entered on jury verdicts finding him guilty of
sexual assault on a child by one in a position of trust and
sexual assault on a child, pattern of abuse. Salas also
appeals the trial court's order finding him to be a
sexually violent predator (SVP). We affirm in part, vacate in
part, and remand for findings.
2 The victim was nine years old when her mother began dating
Salas in August 2011. At the time, the victim lived with her
mother in Loveland. In September 2011, the three moved in
with the victim's grandmother, at her apartment in
Denver. In November 2011, Salas and mother moved into a
separate apartment together in Denver, but the victim
continued to live with grandmother. The victim occasionally
visited her mother's apartment.
3 At trial, the victim testified that, during visits, she
would sometimes be alone with Salas in the apartment while
mother worked. She testified that on occasion, Salas told the
victim to lie down on his bed and touched her "stomach
and legs" and her "private parts" over her
clothing. The prosecutor asked the victim to indicate on a
diagram where Salas touched her, and she indicated the
buttocks. On another occasion, Salas made the victim touch
his penis. The victim did not tell anyone about these
incidents because Salas told her not to, and she was scared.
4 In early 2012, mother and Salas broke up, and mother moved
to California; the victim followed once she finished school
in Denver. There, the victim told a family friend about the
assaults. The friend relayed the information to mother and
mother called the police. The victim spoke about the
incidents with a sheriff and a counselor in California.
5 In November 2012, the victim moved back in with grandmother
in Denver. The victim discussed the assaults with a forensic
interviewer at the Denver Children's Advocacy Center.
6 At trial, the theory of defense was that the victim
fabricated the assaults in order to gain attention, and that
Salas could not have sexually assaulted her because he was
never alone with her for a sufficient period.
7 Salas first contends that the trial court abused its
discretion and violated his rights to due process, a fair
trial, and an impartial jury by denying his motion for a
mistrial after grandmother testified that Salas had
"some type of court proceedings on an alcohol problem,
" a nonresponsive answer to a question which, he says,
impermissibly referred to prior criminality. We disagree.
8 Grandmother testified that mother and Salas lived with her
for a few months before they moved into their own apartment.
The court asked grandmother a question posed by the jury:
"Was Salas employed during the two- to three-month
period and if so how many hours per week?" Grandmother
replied that he was employed. Defense counsel questioned
grandmother further on whether Salas was employed full-time,
to which grandmother responded, "He had - no - how can I
say this except to be honest. There was some type of court
proceedings on an alcohol problem." Defense counsel
moved for a mistrial. The trial court denied the motion and
instructed the jury to disregard grandmother's response.
Standard of Review
9 A trial court has broad discretion to grant or deny a
mistrial, and its decision will not be disturbed on appeal
absent an abuse of discretion and prejudice to the defendant.
People v. Santana, 255 P.3d 1126 (Colo. 2011);
People v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984).
A court abuses its discretion only when inadmissible evidence
is likely to have substantially prejudiced the jurors despite
the use of any alternative remedies. People v. Lahr,
2013 COA 57, ¶ 23, 316 P.3d 74, 79. A mistrial is
"the most drastic of remedies, " and is "only
warranted where the prejudice to the accused is too
substantial to be remedied by other means."
Abbott, 690 P.2d at 1269.
10 Relying on Santana and People v.
Chastain, 733 P.2d 1206 (Colo. 1987), Salas asserts that
he has presented a constitutional claim because
grandmother's statement violated his rights to due
process and a fair trial by an impartial jury. However,
neither of these cases involved a motion for a mistrial based
on a reference to prior criminality. Further, an erroneous
reference to a defendant's prior criminality is not an
error of constitutional dimension, and we therefore review
such claims for nonconstitutional harmless error. See,
e.g., People v. Pernell, 2014 COA 157,
¶¶ 26, 42-52, ___ P.3d ___, ___, ___;
Lahr, ¶ 23, 316 P.3d at 79; see also People
v. Yusem, 210 P.3d 458, 469 n.16 (Colo. 2009) (erroneous
admission of prior bad act evidence is not error of
constitutional dimension). Therefore, we review Salas'
claim for nonconstitutional harmless error.
11 Salas relies on Goldsberry to assert that
"[i]n a criminal trial to a jury, evidence of a
defendant's criminal activity, which is unrelated to the
offense charged, is inadmissible." People v.
Goldsberry, 181 Colo. 406, 409, 509 P.2d 801, 803
(1973). However, Goldsberry also notes that
"exceptions to this rule are limited to well defined and
special situations where proof of similar offenses will show
the defendant's intent, motive, plan, scheme, or design
with respect to the crime charged." Id. The
supreme court in Goldsberry held that in such
situations, the court is required to give instructions
limiting the purpose of such evidence, id., and that
when reference is made in the presence of the jury to a
defendant's unrelated criminal activity, "a mistrial
is normally required, " id.
12 However, subsequent cases have limited the holding in
Goldsberry: "[A]n ambiguous reference to
evidence of a defendant's criminality does not
necessitate a new trial." Lahr, ¶ 24, 316
P.3d at 79 (citations omitted); see also People v.
Vigil, 718 P.2d 496, 505-06 (Colo. 1986) (police
officer's reference to contraband found in
defendant's home did not warrant mistrial). In addition,
fleeting references to a defendant's alleged criminal
history have even less prejudicial impact. Lahr,
¶ 24, 316 P.3d at 79-80; see also Abbott, 690
P.2d at 1269 (A mistrial was unwarranted in part because
"the reference to past criminal acts was a single
unelicited remark."). The circumstances of each case
must be reviewed to determine whether the defendant was
prejudiced. Abbott, 690 P.2d at 1269; People v.
Moore, 226 P.3d 1076, 1087-88 (Colo.App. 2009).
13 Further, Goldsberry was announced prior to the
promulgation of the Colorado Rules of Evidence. While the
rules state that evidence of other crimes, wrongs, or acts is
not admissible to prove the defendant's character in
order to show that he or she acted in conformity therewith,
see CRE 404(b); Kaufman v. People, 202 P.3d
542, 552 (Colo. 2009), such evidence can be admissible for
the same purposes and under the same conditions enumerated in
Goldsberry, see Kaufman, 202 P.3d at 552
(citing CRE 404(b)); People v. Beasley, 43 Colo.App.
488, 492, 608 P.2d 835, 838 (1979) (citing
Goldsberry and CRE 404(b)).
14 Generally, the erroneous admission of evidence is remedied
by instructing the jurors to disregard it. Vigil v.
People, 731 P.2d 713, 716 (Colo. 1987); Lahr,
¶ 25, 316 P.3d at 80. Absent evidence to the contrary,
we presume jurors follow such an instruction. Lahr,
¶ 25, 316 P.3d at 80. The supreme court noted in
Goldsberry that where the prosecution has
intentionally elicited the prejudicial information, evidence
of a defendant's guilt is "thin, " and if the
proof of at least one of the essential elements of the crime
charged is entirely circumstantial, a trial court's
cautionary instruction will not suffice. Goldsberry,
181 Colo. at 409, 509 P.2d at 803. However, the supreme court
has since clarified that "[t]he circumstances are . . .
rare where we . . . will depart from the presumption that a
jury follows a court's curative instructions."
Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091
(Colo. 2011); see also People v. Ellis, 30 P.3d 774,
778 (Colo.App. 2001) (acknowledging Goldsberry but
concluding that court's instruction was sufficient to
cure prejudice); People v. Gillispie, 767 P.2d 778,
780 (Colo.App. 1988) ("[A]n instruction is inadequate
only when evidence is so prejudicial that, but for its
exposure, the jury might not have found the defendant
15 Here, grandmother's comment regarding "court
proceedings on an alcohol problem" referred ambiguously
to possible past criminality. It was a single, fleeting,
nonresponsive comment. It did not necessarily reference any
criminal behavior on the part of Salas, since "court
proceedings" on an "alcohol problem" could
also refer to civil and administrative proceedings involving
alcohol consumption. See, e.g., § 27-81-112,
C.R.S. 2016 (governing involuntary civil commitment of
alcoholics); § 42-2-126, C.R.S. 2016 (governing license
revocation proceedings based on an administrative
16 The possibility that a reasonable juror inferred
Salas' guilt based on grandmother's reference to an
"alcohol problem" is highly attenuated. If such a
comment had an impact on the jury, it was not "so
prejudicial that, but for its exposure, the jury might not
have found against the defendant." People v.
McNeely, 68 P.3d 540, 542 (Colo.App. 2002) (citation
omitted); see also People v. Ned, 923 P.2d 271, 275
(Colo.App. 1996) ("Speculation of ...