United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
L. KANE, SENIOR U.S. DISTRICT JUDGE
his Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1), Emmett Larsen challenges his
conviction for sexual assault on a child by one in a position
of trust committed as a part of a pattern of sexual abuse.
Mr. Larsen was charged in El Paso County District Court with
three counts of sexually assaulting his twin granddaughters,
AH and KH, when they were nine years old:
Count 1: Sexual Assault on a Child by One in a Position of
Trust-Pattern of Sexual Abuse (AH the alleged victim);
Count 2: Sexual Assault on a Child by One in a Position of
Trust (AH the alleged victim); and
Count 3: Sexual Assault on a Child by One in a Position of
Trust (KH the alleged victim).
jury's general verdicts found Mr. Larsen guilty on Counts
1 and 2 (those related to AH) and not guilty on Count 3 (that
related to KH). The trial court “merged” the
non-pattern count of conviction (Count 2) into the pattern
count of conviction (Count 1) and sentenced Mr. Larsen to the
mandatory minimum sentence of 8 years to life in prison.
Larsen's direct appeals in state court ultimately proved
unsuccessful, and he now seeks habeas relief from this Court
on two separate grounds:
1. That his conviction is not supported by the required jury
findings and that it therefore violates his right to trial by
jury and to due process of law, which requires proof beyond a
reasonable doubt of all elements required to support a
2. That the trial court's total exclusion of evidence and
limits on cross-examination concerning the government's
efforts to take custody of the alleged victims away from
their mother during an evening recess in the mother's
testimony violated Mr. Larsen's rights to confrontation,
to present a defense, and to a fair trial.
Mr. Larsen's conviction for the pattern count is not
supported by the jury's findings and verdicts and grant
relief on that basis.
September 2011, AH and KH moved to Colorado Springs,
Colorado, from California with their mother SL, who had lost
her job and was unable to find other employment in
California. In Colorado Springs, AH, KH, and SL moved in with
SL's father, Emmett Larsen, and his wife. Larsen is a
retired Federal Aviation Administration employee and used his
federal benefits to provide insurance for his granddaughters,
who had health issues requiring ongoing care.
KH had been sexually abused by their paternal uncle in
California. KH revealed her prior abuse to Larsen while they
were living with him, and he sought counseling for her. When
KH disclosed the sexual abuse by her uncle to her counselor,
the counselor reported it to the authorities. As a result,
Patricia Hartman, a social worker with the El Paso County
Department of Human Services, visited Larsen's home on
August 2, 2012, to speak with KH about her allegations
regarding the uncle. Hartman was required to interview all
members of the home, so she interviewed both KH and AH,
separately. At trial, Hartman testified that, during those
interviews, KH did not disclose any inappropriate contact
other than that involving her uncle. 8/15/13 Trial Tr. at
63:2-17, ECF No. 7. AH, on the other hand, told Hartman that
Larsen had touched her twice on her breast area and vaginal
area and once on just her vaginal area. Id. at
65:17-22. Upon hearing AH's claims, Hartman arranged for
SL to take her daughters to Safe Passage, a child advocacy
center in Colorado Springs, in order for the girls to undergo
forensic interviews and to protect them from continued
contact with Larsen.
was interviewed at Safe Passage, she again disclosed only the
sexual abuse by her uncle and specifically denied any
inappropriate touching by Larsen. See 8/13/13 Trial
Tr. at 170:2-9, 174:6-10, 205:4-206:18, 207:6-24, ECF No. 7.
At trial, however, KH testified that her grandfather had
touched her breast area once. Id. at 170:15-172:16.
her interviewer at Safe Passage that it was hard to talk
about what had happened with her grandfather, but eventually,
she wrote down:
My grampa tached my in the down part of my boddy and the up
part dut he did not mean it it was an asedent he is nice and
AH Note, Def. Trial Ex. B at 1, ECF No. 7. AH went on to tell
the interviewer she had been touched three times by her
grandfather-first, on her breasts, which she believed was an
accident; second, over her underwear in the front for less
than a second; and third, on her breasts over her clothes.
See 8/14/13 Trial Tr. at 67:23-69:6, ECF No. 7. In
contrast, AH testified at trial that she did not remember her
grandfather touching her in the “down part” but
that he had touched her in the “up part, ”
meaning her breast. Id. at 30:3-31:9, 32:10-12,
interviewed by Detective Kory Dabb at Safe Passage. She was
then directed by Officer Rebecca Arndt to make a
“pretext call” to her father in an effort to
obtain a confession or to corroborate what AH and KH had
described. 8/15/13 Trial Tr. at 98:23-101:23; Call Tr.,
70-81, ECF No. 7. During the call, SL repeatedly stated that
she was afraid her children would be taken from her and
explained that she needed to know anything Larsen had done.
Larsen responded that the single incident that had occurred
was the one they had previously discussed in which KH had
placed his hand on her boob for a second. Id. at
73-75. He claimed the only touching of AH he had done was in
rubbing her back and tickling her. Id. Notably, the
call records SL asking Larsen, “why did you ever molest
me?” and him answering, “I explained that to you
once.” Id. at 78-79.
was interviewed by Officer Arndt later that same day.
See Larsen Interview, People's Ex., ECF No. 7.
Throughout the interview, he maintained that any touching of
his granddaughters was not for sexual gratification.
Id. at 76:25-77:9, 80:17-24, 84:14-16, 101:10-11,
102:17-22. He did, however, admit to touching his daughter in
a sexual manner. Id. at 88:7-91:22, 99:6-100:5.
was conflicting evidence at trial on whether SL had
previously been told by both of her daughters that Larsen had
touched them inappropriately. SL testified that KH had told
her about an incident, but she did not recall knowing about
any incident with AH until Hartman came to the house. 8/14/13
Trial Tr. at 123:15-124:13, 141:15-142:4. In contrast,
Hartman and Detective Dabb, the officer who interviewed SL at
Safe Passage, both testified that SL said she was previously
aware of touching involving AH and had confronted Larsen, who
acknowledged he had done it and said he was sorry and would
not do it again. 8/15/13 Trial Tr. at 66:8-18, 83:3-85:25.
parties also elicited testimony at trial regarding SL's
motivations as Hartman and the officers were investigating.
SL testified that she was initially hesitant in speaking with
them but acceded to their requests, including by making the
pretext phone call, because she felt they were threatening to
take her children from her. 8/14/13 Trial Tr. at
142:22-143:11; 8/15/13 Trial Tr. at 39:5-41:6. Hartman and
Detective Dabb denied making any such threats. Id.
at 67:25-68:2, 86:25-87:6. And Officer Arndt stated that she
made clear to SL that her cooperation was not determinative
of whether she would retain custody of her children as it was
“a [Department of Human Services] issue and not a law
enforcement issue.” Id. at 101:24-102:22.
Still, Hartman admitted that she told SL that the children
would need to be removed if SL did not act to keep them safe,
and she acknowledged that SL was “very cooperative,
very protective. Very scared, but willing to do what she
needed to do to keep the kids safe.” Id. at
68:20-69:2. Along those same lines, Officer Arndt testified
that she informed SL that the Department was working on court
orders to take custody of her daughters because SL had
instructed them not to disclose anything in their interviews.
Id. at 102:3-17.
the trial, KH and AH testified that they had periodically
been staying with Larsen while the criminal proceedings
against him were ongoing. 8/13/13 Trial Tr. at 176:3-23,
186:4-187:1; 8/14/13 Trial Tr. at 24:15-20, 41:6-45:13. SL
confirmed this fact and claimed she did not have to leave her
daughters with Larsen if she thought they were in danger with
him. 8/15/13 Trial Tr. at 46:3-48:5. An individual in the
courtroom heard the girls' testimony and felt compelled
to report their continued contact with Larsen to the
Department of Human Services. 8/15/13 Trial Tr. at 4:10-16. A
custody order for SL's daughters was then obtained from a
magistrate judge. Id. at 8:17-18. Hartman was sent
out during the evening recess in SL's testimony to take
custody of the children but was unsuccessful in locating
them. She did encounter SL, who reportedly stated that
Hartman was “making a big mistake, ” that her
daughters were not sexually abused by Larsen, and that she
was forced to say everything in the last investigation. Def.
2/11/14 Ex. A at 1, ECF No. 7.
next morning, before SL was slated to retake the stand,
Larsen's counsel advised the court that he anticipated
questioning her about the events of the previous evening.
8/15/13 Trial Tr. at 10:21-11:4. The judge ordered that
defense counsel “not to go into that” and stated
that he would not allow counsel “to cross-examine in
that area.” Id. at 11:5-6. Defense counsel
objected on the grounds that prohibiting him from eliciting
such testimony would deny Mr. Larsen his constitutional
rights to present a defense, to counsel, and to appropriate
cross-examination. Id. at 12:18-25. He explained
that the testimony would bolster the defense's argument
that SL made the pretext phone call, the allegations, and the
statements to the police because she was being threatened
with having her children taken from her. Id. at
12:3-7. The judge did not budge. Id. at 13:1-6.
Instead, the judge relayed to SL before she continued
testifying that he had countermanded the custody order,
telling her: “The children are not going to be taken
away from you. Any further action involving your children
will have to be ordered by me and no other judge, and they
are aware of that.” Id. at 15:20-23. Defense
counsel repeatedly renewed his request to elicit testimony on
the Department's most recent attempt to take custody of
the children, and each time the judge denied it. Id.
at 48:25-49:3, 69:17-20.
jury acquitted Larsen of the charge involving KH but found
him guilty of both the pattern and non-pattern counts
involving AH. In addition to the general verdict, the verdict
form for the pattern count contained two specific
interrogatories. The jury responded to those questions
finding: (1) that Larsen did commit the pattern
count by touching AH's breasts under her shirt; and (2)
that Larsen did not commit the pattern count by
touching AH's vaginal area over her underwear. The trial
judge “merged” the pattern and non-pattern counts
of conviction for sentencing and sentenced Larsen to the
mandatory minimum sentence triggered by the pattern count-8
years to life in prison. Judgment, CF at 309.
Court Direct Appeal
filed a direct appeal in the Colorado Court of Appeals, in
which he asserted three grounds for reversal. Two of those
grounds are similar to what he raises here. There, Larsen
1. His rights to confrontation, to present a defense, and to
a fair trial were violated when the trial court excluded
evidence of efforts by the Department of Human Services to
take custody of KH and AH away from SL during the overnight
recess in SL's testimony;
2. His conviction for the pattern count must be vacated
because the jury's findings and verdict do not support
the required factual finding of two or more incidents of
sexual contact involving the same child; and
3. He was denied his due process right to a fair trial and a
trial by an impartial jury when the trial court refused his
request to poll the jury after prejudicial material was
published in the local newspaper.
Court of Appeals reversed Larsen's conviction, holding
that the trial court abused its discretion in failing to poll
the jury after the prejudicial article was published.
People v. Larsen, No. 14CA0487, 2015 WL 6746509, *4
(Colo.App. Nov. 5, 2015) (“Larsen 1”),
rev'd People v. Larsen, 393 P.3d 543
(Colo. 2017) (“Larsen 2”). But the court
upheld the trial court's evidentiary ruling and deemed it
unnecessary to address the jury's findings and verdict
since it was remanding for a new trial. Larsen 1,
2015 WL 6746509, *5-6. The Colorado Supreme Court granted the
State's petition for certiorari and reversed the Court of
Appeals' holding on the jury polling claim. Larsen
2, 393 P.3d at 547.
remand, the Court of Appeals issued a second opinion, this
time ruling on the jury verdicts claim and upholding the
conviction. See People v. Larsen, No. 14CA0487
(Colo.App. July 20, 2017) (unpublished) (“Larsen
3”), ECF No. 1-3. Larsen then filed a petition for
rehearing. The court denied the petition and instead issued a
modified opinion. See People v. Larsen, No. 14CA0487
(Colo.App. Oct. 26, 2017) (unpublished) (“Larsen
4”), ECF No. 1-5. Judge Berger dissented, stating
that he would grant the petition for rehearing and reverse
the conviction for the pattern count on the ground that the
verdict “does not carry the indicia of reliability that
[they] must insist on in serious criminal cases.”
Id. at 11.
petitioned the Colorado Supreme Court for certiorari. The
court denied his petition on June 25, 2018. See Larsen v.
People, No. 17SC810, 2018 WL 3104246 (Colo. June 25,
2018). Justices Marquez and Gabriel indicated they would have
granted certiorari on:
Whether in light of the plain language of the sentence
enhancement statute and United States v. Alleyne,
570 U.S. 99 (2013), which requires the jury to find any fact
that increases a mandatory minimum sentence, the pattern
offense-sentence enhancement count must be vacated since the
jury did not find the required two or more acts.
Id. at 1.
Raised in Larsen's Application
recited above, Larsen's Application for a Writ of Habeas
Corpus makes two claims, one arguing the jury's findings
and verdicts are insufficient to support his conviction and
the other asserting that the trial court improperly excluded
evidence on the attempted removal of AH and KH from SL during
Habeas Corpus Standard
writ of habeas corpus stands as a safeguard against
imprisonment of those held in violation of the law.”
Harrington v. Richter, 562 U.S. 86, 91 (2011).
Although the nature and purpose of habeas corpus are informed
by the common law, federal courts are only empowered to
exercise the writ to the extent authorized by Congress.
Ex Parte Bollman, 8 U.S. 75, 93-94 (1807). Over
time, the scope and function of habeas corpus review
available in federal courts has been significantly curtailed
by Congress and the U.S. Supreme Court. An example of such a
limitation is the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(AEDPA). The Act “requires a state prisoner seeking
federal habeas relief first to ‘exhaus[t] the remedies
available in the courts of the State.'” Kernan
v. Hinojosa, 136 S.Ct. 1603, 1604 (2016) (per curiam)
(quoting 28 U.S.C. § 2254(b)(1)(A)). Then, as the
Supreme Court has underscored, the Act “imposes a
highly deferential standard for evaluating state-court
rulings, and demands that state-court decisions be given the
benefit of the doubt.” Renico v. Lett, 559
U.S. 766, 773 (2010) (internal quotation marks and citations
omitted). Federal courts are only freed from the Act's
strictures when the state courts have not adjudicated the
prisoner's federal claim “on the merits.”
See Kernan, 136 S.Ct. at 1604 (quoting 28 U.S.C.
the state courts have addressed a prisoner's claim on the
merits, habeas relief is appropriate if the adjudication by
the state courts:
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (emphasis added).
decision is contrary to clearly established Federal
law “if the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on
a question of law” or “if the state court
confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result
opposite to [the Supreme Court's].” Williams v.
Taylor, 529 U.S. 362, 405 (2000) (O'Connor, J.,
concurring in the judgment of the Court and delivering the
opinion of the Court as to Part II).
decision is an unreasonable application of clearly
established Federal law if the state court
“correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular
prisoner's case . . . .” Id. at 407-08.
The reasonableness of a decision, vel non, is
determined by reference to an objective standard.
Id. at 409. “[A] state court's application
of federal law is only unreasonable if ‘all fairminded
jurists would agree the state court decision was
incorrect.'” Wood v. Carpenter, 907 F.3d
1279, 1289 (10th Cir. 2018) (quoting Frost v. Pryor,
749 F.3d 1212, 1225 (10th Cir. 2014)).
decision is not based on an unreasonable
determination of the facts “merely because the
federal habeas court would have reached a different
conclusion in the first instance.” Wood v.
Allen, 130 S.Ct. 841, 849 (2010). The Supreme Court has
warned that, “even if reasonable minds reviewing the
record might disagree about the finding in question, on
habeas review that does not suffice to supersede the trial
court's determination.” Id. (internal
quotation marks, citation, and alteration omitted). The Tenth
Circuit has elaborated that a state court unreasonably
determines the facts when it “plainly misapprehend[s]
or misstate[s] the record in making [its] findings, and the
misapprehension goes to a material factual issue that is
central to petitioner's claim . . . .” Byrd v.
Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011)
(internal quotation marks and citation omitted). Subsection
2254(e)(1) further instructs that “a determination of a
factual issue made by a State court shall be presumed to be
correct.” 28 U.S.C. § 2254(e)(1). And “[t]he
applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.”
Id. Significantly, the Supreme Court has “not
yet ‘defined the precise relationship between §
2254(d)(2) and § 2254(e)(1).'” Brumfield
v. Cain, 135 S.Ct. 2269, 2282 (2015) (quoting Burt
v. Titlow, 571 U.S. 12, 15 (2013)).
applicant presents a claim that the state courts have not
adjudicated on the merits, the federal court may review that
claim de novo. Johnson v. Williams, 568
U.S. 289, 293, 303 (2013). Then, the “standard of
review is more searching.” Stouffer v.
Trammell, 738 F.3d 1205, 1213 (10th Cir. 2013) (internal
quotation marks and citation omitted). And “[I] may
exercise [my] independent judgment in deciding the
claim.” McCracken v. Gibson, 268 F.3d 970, 975
(10th Cir. 2001).
these standards in mind, I turn to Larsen's claims for
habeas corpus relief.