Peo v. Alvarenga

22CA1947 Peo v Alvarenga 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1947

Jefferson County District Court No. 21CR3021

Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jesus Alvarenga,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE PAWAR

Navarro and Richman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

1

¶ 1 Defendant, Jesus Alvarenga, appeals the judgment of

conviction entered after a jury found him guilty of menacing,

attempted second degree kidnapping, and a crime of violence

sentence enhancer. We affirm.

I. Background

¶ 2 The prosecution charged Alvarenga with attempted second

degree kidnapping, a crime of violence sentence enhancer, and

menacing with a deadly weapon, based on fourteen-year-old B.O.’s

allegations that he attempted to force her into his car while she was

waiting for the bus.

¶ 3 B.O. testified at trial that Alvarenga sat next to her, offered her

marijuana, held a knife against her leg, repeatedly asked if she

needed a ride in a “very soft but demanding tone,” and assured her

if she got in the car with him everything would be okay. The

prosecution also introduced evidence that Alvarenga previously had

a sexual relationship with a sixteen-year-old after picking her up in

Pueblo and had approached a young woman in Edgewater. The

defense did not dispute that Alvarenga contacted B.O. at the bus

stop. It argued that Alvarenga may have made B.O. uncomfortable,

2

but it was a misunderstanding, and he did not attempt to kidnap

her. The jury convicted Alvarenga as charged.

¶ 4 Alvarenga now appeals. He claims that (1) the prosecution

presented insufficient evidence to support his attempted kidnapping

conviction; (2) the trial court erroneously admitted other act

evidence; and (3) the trial court violated his right to confrontation

by improperly admitting hearsay evidence.

II. Sufficient Evidence Supports Attempted Kidnapping

Conviction

A. Standard of Review and Relevant Law

¶ 5 In reviewing the sufficiency of the evidence, we consider

whether the relevant evidence, both direct and circumstantial, when

viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt. People v. Donald, 2020 CO 24, ¶ 18.

¶ 6 We must “give the prosecution the benefit of all reasonable

inferences that might fairly be drawn from the evidence.” Id. at

¶ 19. The fact “that reasonable alternative inferences were

3

possible” does not render the evidence insufficient to support a

conviction. Id. at ¶ 41.

¶ 7 Second degree kidnapping occurs when “[a] person . . .

knowingly seizes and carries a person from one place to another,

without [their] consent and without lawful justification.” § 18-3-

302(1), C.R.S. 2023. Seize and carry are two distinct elements.

Garcia v. People, 2022 CO 6, ¶ 22. A defendant is guilty of the

seizure element if “the defendant knowingly took possession of or

had control over the victim.” Id. at ¶ 23. The carry element

requires movement from one place to another. Id. at ¶ 28.

Attempted second degree kidnapping occurs when an individual

knowingly engages in behavior that constitutes a substantial step

toward committing and completing the crime. See § 18-2-101(1),

C.R.S. 2023 (“A substantial step is any conduct, whether act,

omission, or possession, which is strongly corroborative of the

firmness of the actor’s purpose to complete the commission of the

offense.”).

4

B. Discussion

¶ 8 Alvarenga argues the evidence was insufficient to support a

reasonable conclusion that he attempted to seize and carry B.O., as

required for an attempted kidnapping conviction. We disagree.

¶ 9 B.O. testified that Alvarenga and another man (Thomas Noles)

drove to the bus stop where both men approached her and that

Alvarenga sat next to her and held a blade against her thigh. She

testified that Alvarenga offered her marijuana and sat “very close”

and “felt like he was getting closer” as he repeatedly asked her

questions, “[C]an I use your phone, do you need a ride, do you want

to get a ride, like in his very soft but demanding tone.” She testified

that Alvarenga told her everything would be okay if she went with

him and that she was scared and didn’t know what was going to

happen.

¶ 10 The officers who responded to the scene testified that they

found a serrated blade on the bench where B.O. had been sitting

and that when they found B.O., she was “visibly upset and crying”;

“hunkered down”; “shaking”; and “looking around, clearly nervous

and very shaken up.”

5

¶ 11 “Conduct strongly corroborative of the firmness of the actor’s

criminal purpose is sufficient in itself” to constitute a substantial

step. People v. Lehnert, 163 P.3d 1111, 1115 (Colo. 2007). The

evidence that Alvarenga held a blade against B.O.’s body, offered

her marijuana, and used a demanding tone demonstrates his intent

to gain control over B.O. That B.O. was afraid and shaken up when

police arrived further supports the jury’s conclusion that Alvarenga

attempted to seize B.O. See Garcia, ¶23.

¶ 12 Likewise, Alvarenga’s repeated pressure on B.O. to go with him

in the car demonstrates his desire to move B.O. from the bus stop

to another location. See id. at ¶¶ 28-29 (evidence of a victim’s

movement, even if minimal, will often fulfill the “one place to

another” requirement); see also People v. Abbott, 690 P.2d 1263,

1270, n.4 (Colo. 1984) (knowing asportation occurs when a victim’s

movement is made or suggested out of fear). Viewing this evidence

as a whole and in the light most favorable to the prosecution, we

conclude it was substantial and sufficient to support Alvarenga’s

attempted kidnapping conviction.

6

III. Other Acts Evidence

¶ 13 Alvarenga next asserts the trial court erred by admitting

evidence of two separate incidents in which he approached young

women in public — one in Pueblo and one in Edgewater.

A. Relevant Law

¶ 14 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Cross, 2023 COA 24, ¶ 9. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair or when it misapplies the law. Id.

¶ 15 CRE 404(b)(1) prohibits using evidence of a defendant’s

uncharged act to prove his character in order to show that he acted

in conformity with that character on a particular occasion. But

evidence of other acts may nevertheless be admissible for other

purposes including to prove the defendant’s mental state and

intent. CRE 404(b)(2).

¶ 16 Before admitting CRE 404(b) evidence, a trial court must be

satisfied by a preponderance of the evidence that the prior bad act

occurred and that the defendant committed the act. People v.

Warren, 55 P.3d 809, 814 (Colo. App. 2002).

7

¶ 17 To determine whether other act evidence is admissible under

CRE 404(b), the court must consider the evidence under the four-

part test set out in People v. Spoto, 795 P.2d 1314, 1318 (Colo.

1990). To be admissible, evidence of other acts must relate to a

material fact; be logically relevant to that material fact; its relevance

must be independent of the intermediate inference that the

defendant has a bad character; and its probative value must not be

substantially outweighed by the danger of unfair prejudice. Id. We

review nonconstitutional trial errors that were preserved by

objection for harmless error. Hagos v. People, 2012 CO 63, ¶ 12.

Under this standard, we reverse only if the error substantially

influenced the verdict or affected the fairness of the trial

proceedings. Id.

B. The Pueblo Incident

¶ 18 The prosecution introduced evidence that three months before

the incident in this case, a sixteen-year-old girl called police stating

she had spent a few days with Alvarenga after he picked her up in

8

Pueblo and that they had engaged in a sexual relationship.

1

The

investigating detective testified that the girl was on foot, and

Alvarenga was in his vehicle when they first met, so “he essentially

picked her up off the street and then drove her around.” The

detective also testified that she had reviewed an interview in which

Alvarenga described the girl as his girlfriend and initially denied,

but then admitted, having sexual contact with her.

¶ 19 We conclude the trial court properly exercised its discretion to

admit this evidence under CRE 404(b). To prove that Alvarenga

attempted to kidnap B.O., the prosecution had to establish that he

knowingly attempted to seize and carry her. See § 18-1-501(6),

C.R.S. 2023 (a person acts “knowingly” with respect to conduct

described by a statute when he is aware that his conduct is of such

nature or that such circumstance exists). Alvarenga disputed the

mental state requirement at trial, arguing that the incident was a

“misunderstanding,” and he had simply wanted to borrow B.O.’s

phone. On appeal, he argues the Pueblo incident was not relevant

1

The girl ultimately contacted the police in Lakewood. For ease of

reference, because Alvarenga picked her up in Pueblo, we refer to

this incident in this opinion as “the Pueblo incident.”

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to his mental state in this case because he did not menace the girl

in Pueblo or make sexual advances toward B.O. We disagree.

¶ 20 Alvarenga’s previous sexual relationship with a teenage girl

tended to prove that contrary to his position at trial, he approached

B.O. at the bus stop because he liked to have sex with young girls,

not that he intended to borrow her phone. See Warren, 55 P.3d at

814-15 (where the defendant denied criminal intent, evidence that

he previously engaged in similar conduct was properly admitted as

rebuttal evidence and to show knowledge). The evidence was

therefore admitted for a proper purpose, logically relevant to a

material fact, and independent of a bad character inference.

¶ 21 Like the trial court, we recognize that evidence that Alvarenga

was sexually interested in teenage girls is inherently prejudicial.

But only unfairly prejudicial evidence, carrying a risk of prejudice

that substantially outweighs its probative value, must be excluded.

See Masters v. People, 58 P.3d 979, 1001 (Colo. 2002). Alvarenga’s

defense turned on his mental state — whether the jury believed that

he only intended to ask B.O. to use her phone but that B.O.

misunderstood. The probative value of evidence that he approached

B.O. for a nefarious purpose — as he had in the Pueblo incident —

10

was therefore high. And the danger of the evidence being unfairly

prejudicial was not so great that it warranted exclusion.

¶ 22 The trial court limited the prejudicial effect of this evidence by

instructing the jury, before the testimony was introduced and in the

final jury instructions, that it was not permitted to consider the

evidence for any purpose other than to prove Alvarenga’s mental

state, knowledge, and intent. See People v. Garner, 806 P.2d 366,

374 (Colo. 1991) (Such instructions “safeguard against the potential

for the jury’s misuse of the other-crime evidence.”). The court also

limited testimony regarding the details of the sexual relationship,

and the prosecutor followed this limitation when asking the

detective about the Pueblo incident in “a general sense,” even

interrupting to ensure “[we] keep it concise.”

¶ 23 Moreover, the prosecutor in closing argument did not

emphasize the Pueblo incident or that it involved a sexual

relationship. And defense counsel elicited testimony during cross-

examination that the girl in Pueblo had gone with Alvarenga

voluntarily and that Alvarenga was adamant that he did not know

her age. In light of all of these considerations, we discern no error.

11

C. The Edgewater Incident

¶ 24 Alvarenga also challenges the court’s admission of evidence

that, a month before the incident in this case, a concerned

individual called 911 to report a suspicious person in a vehicle who

was approaching a young female on foot in Edgewater (the

Edgewater incident). The detective testified that he traced the

vehicle to the registered owner’s apartment, where the owner

indicated that Alvarenga had been driving the car. The detective

also testified that he found Alvarenga at the apartment, but he was

not able to speak to him due to Alvarenga’s intoxication.

¶ 25 Alvarenga argues this evidence was inadmissible because

(1) the prosecution did not prove it occurred or that it was him; and

(2) it was based on hearsay, was unfairly prejudicial, and evidence

of his intoxication was irrelevant. We agree that evidence of this

incident was inadmissible but conclude the error was harmless.

¶ 26 At the outset, we agree with Alvarenga that the prosecution

failed to prove by a preponderance of evidence that the Edgewater

incident occurred or that he was involved. The only evidence

presented was the 911 caller’s statement that a suspicious

individual approached a young woman, but that statement was

12

offered by the detective, not the 911 caller. To the extent it was

offered to prove the truth of the matter asserted — that Alvarenga

approached a young woman — it was inadmissible hearsay. See

CRE 801(c); see also People v. Phillips, 2012 COA 176, ¶ 61

(hearsay is inadmissible because the declarant is not present to

explain the statement in context and to be cross-examined, so such

statements are presumptively unreliable).

¶ 27 The trial court determined that the prosecution met its burden

to prove the Edgewater incident through the vehicle owner’s

statement that Alvarenga had been driving the car. But the owner

said nothing of Alvarenga approaching a young woman on the

street. Apart from the 911 caller’s inadmissible hearsay

statements, there was no other evidence that the incident occurred

or that Alvarenga was involved. We therefore conclude the

prosecution did not meet its initial evidentiary burden, and the trial

court erred by admitting evidence of the Edgewater incident at

trial.

2

See Warren, 55 P.3d at 814.

2

Because this evidence should have been excluded, we need not

consider Alvarenga’s additional arguments that it was unfairly

prejudicial under CRE 404(b) or that the detective’s testimony

included an irrelevant reference to his intoxication.

13

¶ 28 Nevertheless, we conclude the court’s error in admitting

evidence of the Edgewater incident was harmless. As an initial

matter, the details of the Edgewater incident were relatively benign.

The jury only heard that Alvarenga approached a young woman, not

that he had sex with her (as in Pueblo) or menaced her with a blade

(as at the bus stop with B.O.).

¶ 29 Moreover, the jury verdicts convicting Alvarenga of the charged

offenses against B.O. were supported by overwhelming evidence.

This evidence included B.O.’s testimony that Alvarenga used a

blade and pressured her to get into his car, as well as evidence that

Alvarenga had approached B.O. on two prior occasions at the same

place, offering her a ride in a “forceful manner.” B.O. testified —

and her mother’s testimony confirmed — that she texted her mom

to call her when Alvarenga was questioning her and that she called

the police immediately after Alvarenga left. The jury also heard

evidence that B.O. was visibly afraid when police contacted her,

that she identified Alvarenga and Noles immediately, and that she

had a “visceral” reaction to seeing them.

¶ 30 As for Alvarenga’s credibility, the responding police officers

testified that he changed his story repeatedly, first telling them that

14

he was in the area to help out his aunt, who has a prosthetic leg,

and then saying he had been seeking B.O.’s help to find the hotel

he had reserved for a homeless couple. Alvarenga also changed his

story regarding the blade found at the scene — first stating that no

blade was involved, then stating that “it was a hundred percent

possible that his DNA was on that blade,” and then writing a letter

to the police chief alleging the blade had been planted at the scene

by police.

¶ 31 Based on all of this evidence and the minimal prejudice

associated with the Edgewater incident, we conclude that court’s

evidentiary error did not substantially influence the verdict or affect

the fairness of the trial and reversal is not warranted. See Hagos,

¶ 12.

D. No Cumulative Error

¶ 32 Alvarenga contends that the cumulative prejudicial effect of

the court’s errors in admitting the other act evidence requires a new

trial. To reverse, we must find that numerous errors have actually

occurred, not merely alleged. People v. Rivas, 77 P.3d 882, 893

(Colo. App. 2003). But we have only found one error in the other

act evidence — the admission of the Edgewater incident. Because

15

we have not found numerous errors, and the single error we found

did not affect the fairness of the trial proceedings, there was no

cumulative error. See Howard-Walker v. People, 2019 CO 69, ¶ 24.

IV. Hearsay and Confrontation

¶ 33 Finally, Alvarenga separately challenges the trial court’s

admission of hearsay, through the Edgewater detective’s testimony,

that the 911 caller reported the young female in Edgewater was “on

foot.” For the first time on appeal, he further asserts the court’s

admission of this testimony violated his right to confrontation.

¶ 34 Even assuming that, unlike the caller’s statements about the

Edgewater incident generally, the “on foot” statement was hearsay,

we conclude that any error was harmless. See Pernell v. People,

2018 CO 13, ¶ 22 (nonconstitutional harmless error applies to

preserved objections to hearsay). The detective properly testified

that the woman in Edgewater was approached in public by a man

driving a vehicle. That she was “on foot” was not prejudicial,

particularly given the fact that B.O. was not on foot but sitting at a

bus stop when she met Alvarenga.

¶ 35 For the same reason, we reject Alvarenga’s unpreserved

challenge under the Confrontation Clause. See Hagos, ¶ 14 (we

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review unpreserved constitutional errors for plain error). Because

we have already concluded that any error in admitting the

statement is harmless, it necessarily cannot be substantial. Id.

(plain error must impair the reliability of the judgment of conviction

to a greater degree than under harmless error to warrant reversal).

V. Disposition

¶ 36 The judgment is affirmed.

JUDGE NAVARRO and JUDGE RICHMAN concur.