Jefferson County District Court No. 14CR2865 Honorable
Jeffrey R. Pilkington, Judge
AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH
J. Weiser, Attorney General, Grant R. Fevurly, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, David Lee Meils, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
four counts of sexual exploitation of a child. He argues that
the trial court erred in excluding alternate suspect
evidence, allowing the prosecutor to commit misconduct during
closing arguments, and permitting improper witness testimony.
He further contends that his four convictions for sexual
exploitation of a child violate his right to be free from
double jeopardy. We affirm in part and vacate his convictions
on counts 2, 3, and 4.
2 On November 4, 2014, Meils's wife, H.M., found on Meils
work phone four photos of the naked victim - her ten-year-old
daughter - and two videos of her undressing. The photos
showed a time stamp of November 3, 2014, at 3:58 p.m., and
the video showed a time stamp of November 4. H.M. testified
that, based on the victim's outfit, she knew the video
was taken on November 3, despite its time stamps of November
4. Both the photos and the video appeared to have been taken
from outside the master bathroom through a gap between the
bathroom door and the floor.
3 H.M. attempted to send the photos and videos to herself or
take a picture of them with her phone to gather proof,
fearing that they might be deleted. When her efforts failed,
she woke up Autumn Stoffel, a friend living at the house.
Stoffel took a photo of one of the photos, including its time
stamp, on Meils's phone. Both women then went to a hotel
to call the police, leaving Meils's phone at the house.
4 At trial, both women testified that they initially
suspected that Meils's thirteen-year-old son, D.M., had
taken the pictures and videos. However, Stoffel stated that
she had observed D.M. in the living room at the time shown on
the time stamps. Aside from Stoffel, Meils was the only other
person home at the time. Stoffel recalled hearing Meils tell
the victim to "get in the shower," seeing him come
downstairs with laundry, and then seeing him run back
5 Meils called H.M. while she was at the hotel and again
while law enforcement officers were present at the hotel.
Both times, she answered with the call on speaker phone.
During the course of the calls, she asked him if "there
was anything that would make [her] leave the house." He
responded, "About those pictures," and
"I'm sorry." He then proceeded to make
inculpatory statements. He explained that H.M. had told him
that the victim "was coming into puberty and it had made
him curious." He blamed H.M. because she mentioned that
the victim's "breasts were bigger than her
own." Then, he said that making the videos "was
retarded and the biggest mistake of [his] life," and he
did it out of "[s]heer curiosity and perversion."
H.M. asked how he did it, and he responded that he "put
the phone outside the door." He also threated to kill
himself at one point during the call.
6 A short time later, law enforcement officers arrested
Meils. He voluntarily surrendered his work and personal
phones as well as an iPad. Though officers did not find the
photos and videos when they initially looked at his phone, a
forensic analyst later recovered from Meils's work phone
two videos and nineteen photographs of the victim undressing
and getting in the shower - all captured between 6:34 p.m.
and 6:46 p.m. on October 2, 2014. (The police did not find
images time stamped in November 2014.) The analysis also
uncovered what appeared to be test images of the bathroom
viewed from the gap between the door and the floor taken
minutes before the photos and videos of the victim were
7 The district attorney charged Meils with four counts of
sexual exploitation of a child and one count of invasion of
privacy for sexual gratification - all with a date range of
October 2, 2014 to November 5, 2014.
8 The defense's theory of the case focused on an
alternate suspect, accusing D.M. of taking the photos and
videos of the victim. Support for the theory included
evidence of D.M. hoarding women's underwear, including
the victim's, and that on October 2 he did not have
access to his cell phone or computer (thus, suggesting that
he had used his father's phone). The prosecution
emphasized the events of November 3, when D.M. was
purportedly in the living room when the photos and videos
were taken. It also highlighted Meils's immediate
confession and apology when confronted by H.M.
9 The jury convicted Meils of all five counts, and the trial
court sentenced him to a total of ten years in the custody of
the Department of Corrections.
10 Meils contends that the trial court denied him his right
to present a complete defense by excluding certain evidence
supporting his alternate suspect theory. We conclude that any
error was harmless.
Standard of Review
11 We review a trial court's evidentiary rulings for an
abuse of discretion. People v. Elmarr, 2015 CO 53,
¶ 20, 351 P.3d 431, 437- 38. A trial court abuses its
discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or based on a misapplication or
misunderstanding of the law. Id. at ¶ 20, 351
P.3d at 438.
12 However, we do not reverse unless there exists a
reasonable probability that an error influenced the verdict
or affected the fairness of the trial, contributing to the
defendant's conviction. Yusem v. People, 210
P.3d 458, 469 (Colo. 2009).
13 In the case of an alternate suspect theory, evidence of
another person's motive or opportunity to commit the
charged crime "is insufficient; a defendant must proffer
something 'more' to establish the non-speculative
connection." Elmarr, ¶ 34, 351 P.3d at 441
(discussing People v. Mulligan, 193 Colo. 509, 568
P.2d 449 (1977)). Thus, "the overarching relevance
inquiry remains whether the evidence, taken collectively,
establishes a non-speculative connection between the
alternate suspect and the charged crime." Id.
at ¶ 40, 351 P.3d at 441.
Relevant Facts and Analysis
14 Before trial, the defense sought to introduce evidence of
D.M.'s preoccupation with sex that, when taken together
with evidence heard by the jury that he hoarded the
victim's underwear and did not have his phone on October
2, suggested he was the perpetrator. The trial court, in a
thorough, detailed order, denied introduction of the
alternate suspect evidence because, in essence, the potential
for prejudice or confusion of such evidence substantially
outweighed any probative value.
15 Our review of the record as a whole leads us to conclude
that overwhelming evidence supported Meils's conviction.
H.M. found the photos and videos on his phone, and Stoffel
testified that Meils was upstairs and D.M. was downstairs
during the November 3 incident. Significantly, during
H.M.'s two phone calls with Meils, he immediately
confessed to taking the photos and videos, and he told H.M.
how he had taken them, and made other inculpatory statements.
Moreover, the jury heard evidence of D.M. hoarding
women's underwear in his bedroom and not having access to
his phone on October 2. Notably, none of the evidence
excluded by the trial court related to any interaction
between D.M. and the victim. Under these circumstances, we
conclude that any error in denying admission of the proffered