People v. Ramcharan

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 10, 2024

2024COA110

No. 22CA0534, People v. Ramcharan — Crimes — Unlawful
Sexual Behavior — Victim’s and Witness’s Prior History —
Evidence of History of False Reporting — Offer of Proof of
Relevancy and Materiality

Under Colorado’s rape shield statute, a party who seeks to

introduce evidence of a victim’s “history of false reporting of sexual

assaults” must file a written motion setting forth “an offer of proof

of the relevancy and materiality” of the evidence. § 18-3-407(2),

C.R.S. 2023. A division of the court of appeals considers the

sufficiency of an offer of proof consisting of a summary of

statements of witnesses, with whom defense counsel apparently

never spoke, that lacks any explanation of whether the statements

are admissible. The division holds that such an offer of proof is

insufficient because the proponent did not establish that the

witnesses’ statements were admissible.
COLORADO COURT OF APPEALS 2024COA110

Court of Appeals No. 22CA0534
Jefferson County District Court No. 20CR1024
Honorable Jason Carrithers, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reynold Ramcharan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE LIPINSKY
Schutz and Martinez*, JJ. concur

Announced October 10, 2024

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, 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. 2024.
¶1 The General Assembly enacted Colorado’s rape shield statute,

section 18-3-407, C.R.S. 2023, to protect victims of sexual assault

from “humiliating and embarrassing public fishing expeditions into

their past sexual conduct.” People v. Weiss, 133 P.3d 1180, 1185

(Colo. 2006) (quoting People v. McKenna, 585 P.2d 275, 278 (Colo.

1978)).

¶2 To accomplish this goal, the statute limits the introduction of

“evidence of specific instances of the victim’s . . . prior or

subsequent sexual conduct, opinion evidence of the victim’s . . .

sexual conduct, and reputation evidence of the victim’s . . . sexual

conduct.” § 18-3-407(1), C.R.S. 2023. (We cite the version of the

rape shield statute in effect at the time of the trial in this case.)

Such evidence is presumed irrelevant, with only a few exceptions.

¶3 One of those exceptions is evidence that “the victim . . . has a

history of false reporting of sexual assaults.” § 18-3-407(2), C.R.S.

2023. But this type of evidence may only be admitted at trial if the

party seeking to introduce it follows the procedure specified in

section 18-3-407(2)(a)-(g), C.R.S. 2023.

¶4 As part of that procedure, the party seeking to introduce the

evidence must file a written motion setting forth an “offer of proof of

1
the relevancy and materiality of . . . evidence that the victim or

witness has a history of false reporting of sexual assaults that is

proposed to be presented.” § 18-3-407(2)(a), C.R.S. 2023. The

written motion “shall be accompanied by an affidavit in which the

offer of proof shall be stated.” § 18-3-407(2)(b), C.R.S. 2023.

¶5 In this appeal, we consider the sufficiency of an offer of proof

consisting of a summary of statements of witnesses, with whom

defense counsel apparently never spoke, that lacks any explanation

of whether the statements are admissible. We hold that such an

offer of proof fails because it does not establish that the witnesses’

statements were admissible.

¶6 Reynold Ramcharan appeals his judgment of conviction

entered on jury verdicts finding him guilty of sexual assault on a

child and contributing to the delinquency of a minor. We affirm.

I. Background

¶7 The evidence introduced at Ramcharan’s trial established the

following facts.

¶8 Ramcharan met A.M., a fourteen-year-old girl, at a public

location after she ran away from the Tennyson Center for Children.

After A.M. told Ramcharan she had nowhere to live, he said he

2
might have a place where she could stay, and they walked to his

apartment.

¶9 Once they reached Ramcharan’s apartment, A.M. lay down,

fully clothed, in a bedroom. A.M. testified that Ramcharan entered

the bedroom a few minutes later, got into bed with her, removed her

pants, held her down, and sexually assaulted her. She specified

that Ramacharan put his penis in her vagina.

¶ 10 A.M. further testified that, either before they entered the

apartment or while Ramcharan was holding her down, he told her

to smoke methamphetamine using a white pipe. When she refused,

he threatened to hurt her if she would not comply. A.M. smoked

from the pipe. She later reported that the pipe had a black residue.

¶ 11 She then “got enough strength to push [Ramcharan] off,”

walked out of the bedroom, told two women who were in the

apartment that she needed fresh air, left the apartment, and asked

people in neighboring houses to call 911.

¶ 12 A crimes against children detective, Kim Collins, later

interrogated Ramcharan. He denied assaulting A.M., saying that

“everything that happened here was completely consensual.”

Significantly, however, in response to Detective Collins’s question,

3
“Is [A.M.] telling the truth . . . that you had sex,” Ramcharan said,

“We started to and that’s when I asked” A.M. her age. He said,

“[T]hat’s when she got uncomfortable, so I stopped.”

¶ 13 In addition, Ramcharan “denied having a white pipe” and told

the detective that “he did not give [A.M.] meth to smoke.” But a

police officer later discovered a white pipe containing black residue,

as A.M. had described it, in the jacket Ramcharan had worn on the

day of the alleged sexual assault.

¶ 14 A DNA test of swabs from A.M.’s vagina, cervix, and external

genitalia did not detect semen, but it did contain a male Y-STR

profile that was consistent with Ramcharan’s genetic material. See

State v. Bander, 208 P.3d 1242, 1246 (Wash. Ct. App. 2009)

(“Based on PCR-YSTR typing, a forensic analyst may determine

whether a known source and all of his paternal relatives can be

excluded as possible contributors to an unknown DNA sample.”).

The prosecution’s expert witness on DNA analysis testified that,

“based on the results of a search of a current population database,

the expected frequency of [Ramcharan’s] Y-STR profile is

approximately 1 in 2,007.”

4
¶ 15 Ramcharan was charged with sexual assault on a child with a

use of force enhancer, in violation of section 18-3-405(1), (2)(a),

C.R.S. 2024, and contributing to the delinquency of a minor, in

violation of section 18-6-701(1)(a), (2)(a), C.R.S. 2024. A jury found

Ramcharan guilty of both crimes, but without the use of force

sentence enhancer. Ramcharan appeals his judgment of

conviction.

II. Analysis

¶ 16 Ramcharan contends that the court reversibly erred by

(1) denying his request to introduce evidence of A.M.’s

alleged history of false reporting of sexual assaults;

(2) instructing the jury on the mens rea “knowingly” in a

manner that “deviated from the statutory definition”; and

(3) denying Ramcharan’s requests for substitution of

appointed counsel.

A. Prior False Reports of Sexual Assault

¶ 17 Ramcharan contends that the court reversibly erred by

denying his request to introduce “evidence of A.M.’s multiple prior

instances of false reports of being sexually assaulted.”

5
1. Additional Facts

¶ 18 Defense counsel filed a pretrial notice of intent to admit

evidence of “prior false reports of sexual assault.” In support of the

notice, defense counsel submitted a document entitled “affidavit”

bearing his signature.

¶ 19 In the “affidavit,” defense counsel asserted that he found, in

his review of discovery from the district attorney’s office, that A.M.

“has made previous false accusations of sexual assault.” Defense

counsel then summarized statements of witnesses that he found in

the discovery materials. (Nothing in the record suggests that

defense counsel ever spoke with any of the witnesses.) Those

statements purported to refer to instances in which A.M. allegedly

made false reports of sexual assault. In addition, defense counsel

stated in the “affidavit” that he found “two cases had been filed for

reporting a false crime,” although defense counsel did not say that

A.M. had been charged in those cases with falsely reporting a

sexual assault or that A.M. had been convicted in either case.

¶ 20 More importantly, defense counsel’s “affidavit” did not indicate

whether the witnesses’ statements were admissible. See Weiss, 133

P.3d at 1187. For example, defense counsel did not state whether

6
the witnesses possessed firsthand knowledge of A.M.’s alleged false

reports of sexual assault or whether their assertions were premised

on hearsay or on speculation.

¶ 21 At the initial hearing on the defense’s request to introduce

evidence of A.M.’s alleged prior false reports of sexual assault, the

court said it was unsure how the allegations in the “affidavit” fit “in

the exception of rape shield” and directed defense counsel to file an

addendum to the request. Defense counsel did not file such an

addendum.

¶ 22 At a status conference conducted one month later, the court

invited the prosecutor to respond to the defense’s notice. The

prosecutor challenged the notice for four reasons. First, he argued

that the supporting “affidavit” was insufficient because “it’s not a

signed record given under oath.” He noted that the “affidavit” was

not notarized and did not satisfy the statutory requirements for

unsworn declarations. Second, he contended that the witnesses

named in the affidavit “would be testifying to hearsay . . . and would

have no personal knowledge.” Third, he challenged whether the

“affidavit” referenced more than one incident of false reporting.

7
Fourth, he noted that the false reporting charges filed against A.M.

had been dismissed.

¶ 23 In response, defense counsel told the court he could “re-file

that with . . . having a notary sign it. I could fix that defect quite

easily.” Defense counsel further argued that the “affidavit”

described more than one occasion on which A.M. had falsely

reported that she had been sexually assaulted.

¶ 24 The court said it was “debatable” whether the document

satisfied the affidavit requirement but added that “an attorney’s

signature [may be] sufficient” under C.R.C.P. 11 and the prosecutor

was making a “form over substance sort of argument.”

¶ 25 Turning to the merits of the prosecutor’s argument, the court

concluded that the defense’s offer of proof was insufficient, saying

that, although defense counsel “assert[s] there’s two instances of

false reporting,” there is “only one regarding a sexual act.” The

court also concluded that the offer of proof improperly rested on

hearsay. Accordingly, the court denied, without prejudice, the

defense’s request for an evidentiary hearing to determine the

admissibility of evidence of A.M.’s alleged history of false reporting

8
of sexual assaults. Although the court said that defense counsel

could refile the request, the defense did not do so.

2. Standard of Review

¶ 26 We review the construction and interpretation of Colorado’s

rape shield statute de novo. See Weiss, 133 P.3d at 1184. “Our

objective is to effectuate the intent and purpose of the General

Assembly. We read the statute as a whole, giving sensible effect to

all of its parts whenever possible. If the statutory language is clear,

we apply the plain and ordinary meaning of the provision.” Id.

(citations omitted).

¶ 27 In addition, “[w]e review a trial court’s determination of the

admissibility of evidence under the rape shield statute for an abuse

of discretion.” People v. Buckner, 2022 COA 14, ¶ 63, 509 P.3d 452,

464. “A court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or is based on an erroneous view

of the law.” Id.

¶ 28 The parties disagree whether the court’s denial of the defense’s

request to introduce evidence of A.M.’s alleged prior false reports of

sexual assault could have violated Ramcharan’s constitutional

9
rights to confront the witnesses against him and to present a

complete defense.

¶ 29 “An erroneous evidentiary ruling may rise to the level of

constitutional error if it deprived the defendant of any meaningful

opportunity to present a complete defense.” People v. Conyac, 2014

COA 8M, ¶ 93, 361 P.3d 1005, 1024. But a defendant’s right to

present a defense is violated only when “the defendant was denied

virtually his only means of effectively testing significant prosecution

evidence.” Id.; see also Krutsinger v. People, 219 P.3d 1054, 1062

(Colo. 2009) (holding that an evidentiary ruling amounts to

constitutional error if it “effectively barred the defendant from

meaningfully testing evidence central to establishing his guilt”).

3. The Law

¶ 30 Under the rape shield statute, a party can introduce evidence

that the victim “has a history of false reporting of sexual assaults”

only by adhering to the procedure specified in section 18-3-407(2),

C.R.S. 2023:

(a) A written motion shall be made . . . to the
court and to the opposing parties stating that
the moving party has an offer of proof of the
relevancy and materiality of . . . evidence that
the victim or witness has a history of false

10
reporting of sexual assaults that is proposed to
be presented.

(b) The written motion shall be accompanied
by an affidavit in which the offer of proof shall
be stated.

§ 18-3-407(2)(a)-(b), C.R.S. 2023.

¶ 31 Because section 18-3-407(2)(b), C.R.S. 2023, refers to “an

affidavit,” the document in which “the offer of proof shall be stated”

must satisfy the legal requirements for affidavits, see C.R.C.P. 108

(“An affidavit may be sworn to either within or without this state

before any officer authorized by law to take and certify the

acknowledgment of deeds conveying lands.”); Otani v. Dist. Ct., 662

P.2d 1088, 1090 (Colo. 1983) (“An affidavit is a signed, written

statement, made under oath before an authorized officer, in which

the affiant vouches that what is said is true.”). (We look to C.R.C.P.

108 for guidance in the absence of a Rule of Criminal Procedure

that addresses affidavits. See Crim. P. 57(b).) An unsworn

declaration that complies with section 13-27-106, C.R.S. 2024, can

be used in place of an affidavit. C.R.C.P. 108. Section 13-27-106

specifies that unsworn declarations must include the statement, “I

11
declare under penalty of perjury under the law of Colorado that the

foregoing is true and correct.”

¶ 32 If the court finds that the offer of proof is sufficient, it “shall

notify the other party of such.” § 18-3-407(2)(c), C.R.S. 2023. If the

prosecution disputes the facts described in the offer of proof, the

court shall set a pretrial in camera evidentiary hearing, at which

“the court may allow the questioning of the victim or witness

regarding the offer of proof made by the moving party or otherwise

allow a presentation of the offer of proof, including but not limited

to the presentation of witnesses.” Id. “Only if the prosecution

stipulates to the facts contained in the offer of proof” may the court

rule on the request to introduce evidence otherwise barred under

the rape shield statute without an evidentiary hearing. Weiss, 133

P.3d at 1187.

¶ 33 An offer of proof is a “preview of the evidence a party is

prepared to introduce at an evidentiary hearing” and “consists of

allegations that the party’s attorney represents would be proven if

the court granted the hearing.” People v. Marx, 2019 COA 138,

¶ 46, 467 P.3d 1196, 1206. An offer of proof “typically states:

(1) what the anticipated testimony of the witness would be if the

12
witness were permitted to testify concerning the matter at issue;

(2) the purpose and relevance of the testimony sought to be

introduced; and (3) all the facts necessary to establish the

testimony’s admissibility.” Weiss, 133 P.3d at 1186-87. “[T]he

affidavit accompanying the defendant’s offer of proof must articulate

facts which, if demonstrated at the evidentiary hearing by a

preponderance of the evidence, would show that the alleged victim

made multiple prior or subsequent reports of sexual assault that

were in fact false.” Id. at 1184.

4. Defense Counsel’s “Affidavit”

¶ 34 The division requested supplemental briefing on whether

defense counsel’s “affidavit” containing Ramcharan’s offer of proof

satisfied the legal requirements for affidavits or unsworn

declarations. The document was neither notarized nor did it

expressly say that it was made “under penalty of perjury under the

law of Colorado.” Although the prosecution argued before trial that,

for this reason, defense counsel’s submission did not satisfy section

18-3-407(2)(b), C.R.S. 2023, the court did not decide the issue but,

instead, concluded that defense counsel had failed to make a

sufficient offer of proof under section 18-3-407(2)(a), C.R.S. 2023.

13
The People did not challenge the form of the “affidavit” in their

answer brief.

¶ 35 We need not decide whether the document satisfied the

affidavit requirement set forth in section 18-3-407(2)(b), C.R.S.

2023, however, because, like the court, we hold that defense

counsel failed to make a sufficient offer of proof. See infra Part

II.A.5. Nonetheless, we are troubled by the deficiencies in the form

of defense counsel’s “affidavit.”

5. Ramcharan Did Not Make a Sufficient Offer of Proof
Under Section 18-3-407(2)(a), C.R.S. 2023

¶ 36 Next, we hold that Ramcharan’s offer of proof was insufficient

under section 18-3-407(2)(a), C.R.S. 2023, because he did not

provide facts establishing that the witnesses’ statements referenced

in his “affidavit” were admissible.

¶ 37 As noted above, the “affidavit” consisted of witness statements

that defense counsel obtained from discovery materials, as well as

his review of two court files in which A.M. was charged with false

reporting. Defense counsel did not say he had spoken with any of

the witnesses named in the “affidavit.”

14
¶ 38 Nothing in the “affidavit” indicated the basis for the witnesses’

alleged knowledge that A.M. had made false reports of sexual

assault or established that the witnesses’ statements were

admissible evidence. Specifically, the “affidavit” stated that Steve

Bailey, A.M.’s guardian ad litem, told Detective Collins that A.M.

“had a history of false reporting,” including an “instance where

[A.M.] had made allegations of sexual assault ‘that she said

happened in one place when it was known she was somewhere

else.’” Defense counsel did not indicate how Bailey became aware of

this incident, whether Bailey was merely repeating information he

obtained from others, or whether Bailey could provide admissible

testimony regarding the incident.

¶ 39 The “affidavit” also reported information that Mallory Scott, a

“social worker with Teller County DHS,” provided to Detective

Collins, a deputy district attorney, and an investigator with the

district attorney’s office. According to defense counsel, Scott said

that A.M. “had been charged in Teller County for false reporting of

sexual assault.” But the “affidavit” did not indicate how Scott

learned of the charge, whether she possessed any firsthand

knowledge of the facts supporting the charge, or whether A.M. was

15
convicted in the case. The “affidavit” quoted Scott as saying that

A.M. was sexually assaulted in 2018; “reported other incidents of

sexual assault allegations, including the incident in which she was

charged with ‘reporting a false crime’”; and “continued to make false

reports up until December 2019.” Notably, the “affidavit” did not

quote Scott as saying that A.M. falsely reported a sexual assault in

2018 or that the “continued . . . false reports” included false reports

of sexual assault. According to defense counsel, Scott said that

A.M. would “sometimes tell Ms. Scott that a particular assault

didn’t actually happen,” but the “affidavit” did not say that any

such “particular assault” was a sexual assault or how many times

A.M. allegedly told Scott that “a particular assault didn’t actually

happen.” More importantly, the “affidavit” did not indicate how

Scott knew that A.M. falsely reported any sexual assault.

¶ 40 The “affidavit” further said that Scott provided an example

where A.M. “went running down a trail near the police station and

reported to the first person she saw that she had been sexually

assaulted.” According to the “affidavit,” Scott said that officers

found a threatening note in A.M.’s backpack and that A.M.

“allegedly admitted that she was the one who wrote that note.” But

16
the “affidavit” did not say that A.M. falsely reported the sexual

assault or that Scott possessed personal knowledge of the incident.

¶ 41 Further, the “affidavit” said that, according to Scott, A.M.

made a report that “police were able to determine was false by

checking surveillance camera footage.” The “affidavit” did not

explain how Scott knew of the allegedly false report, however.

¶ 42 Finally, the reference to the two court cases in the “affidavit”

did not indicate whether either case arose from a false report of

sexual assault, whether the false reporting charges filed against

A.M. were meritorious, or how evidence of any false reports of

sexual assault underlying those cases could be admitted into

evidence.

¶ 43 The offer of proof specified in section 18-3-407(2)(a), C.R.S.

2023, requires more than mere allegations that the victim has a

history of false reporting of sexual assaults. See Weiss, 133 P.3d at

1184. Rather, the offer of proof and the hearing discussed in

section 18-3-407(2)(c), C.R.S. 2023, are intended to screen “the

evidence proposed to be offered regarding the sexual conduct of the

victim.” § 18-3-407(2)(e), C.R.S. 2023. The procedures set forth in

section 18-3-407(2)(a), (b), and (c), C.R.S. 2023, would be a futile

17
exercise if an offer of proof consisted of inadmissible evidence. For

this reason, the offer of proof must state “all the facts necessary to

establish the testimony’s admissibility.” Weiss, 133 P.3d at 1186-

87.

¶ 44 Defense counsel’s “offer of proof” fell far short of explaining

how any of the allegations of false reporting of sexual assault

contained in the “affidavit” were admissible. Although there is no

requirement that the affiant who executes the affidavit required

pursuant to section 18-3-407(2)(b), C.R.S. 2023, speak with the

witnesses whose statements appear in the affidavit, an affiant’s sole

reliance on third-party documents to obtain those statements

increases the likelihood that a court will determine that the offer of

proof fails to establish the statements’ admissibility.

¶ 45 The “affidavit” that Ramcharan’s counsel tendered to the court

does not state that the specified individuals have firsthand

knowledge of the allegations or, if not, the basis for their knowledge.

If the individuals were merely recounting hearsay — “a statement

other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted,” CRE 801(c) — the individuals’ statements regarding

18
A.M.’s alleged history of false reporting of sexual assaults would be

inadmissible. See CRE 802 (“Hearsay is not admissible except as

provided by these rules or by the civil and criminal procedural rules

applicable to the courts of Colorado or by any statutes of the State

of Colorado.”); see also CRE 804, 805, 807 (setting forth various

exceptions to the general bar against hearsay testimony).

¶ 46 Defense counsel was required to explain in his offer of proof

why the witnesses’ statements were admissible. Defense counsel’s

offer of proof failed absent such an explanation.

¶ 47 For these reasons, we conclude that the court did not abuse

its discretion by denying Ramcharan’s request to introduce

evidence of A.M.’s history of false reports of sexual assaults.

B. Instructional Error

¶ 48 Ramcharan contends that the court reversibly erred by

instructing the jury on the word “knowingly” in a way that

“substantially deviated from the statutory definition, was

misleading, inaccurately stated the law, and lowered the

prosecution’s burden to prove every element — including the mens

rea — of each offense beyond a reasonable doubt.”

19
1. Preservation and Standard of Review

¶ 49 The People contend that defense counsel only objected to the

inclusion of the word “well-being” in the instructions and therefore

did not preserve Ramcharan’s challenge to the court’s instruction

defining the word “knowingly.”

¶ 50 Objections must be “specific enough to draw the trial court’s

attention to the asserted error.” People v. Tallent, 2021 CO 68,

¶ 12, 495 P.3d 944, 948 (quoting Martinez v. People, 2015 CO 16,

¶ 14, 344 P.3d 862, 868). The record confirms that defense counsel

did not specifically draw attention to the asserted error in the

court’s definition of “knowingly” because he only objected to the

inclusion of “well-being” in the definition. In contrast to his

counsel’s objection at trial, on appeal Ramcharan contends that the

trial court’s definition of “knowingly” is inconsistent with the

statutory definition. § 18-1-501(6), C.R.S. 2024.

¶ 51 “We review de novo whether the jury instructions as a whole

accurately informed the jury of the governing law.” People v.

Manyik, 2016 COA 42, ¶ 65, 383 P.3d 77, 89. “However, we review

the trial court’s decision regarding whether to give a particular jury

instruction for an abuse of discretion.” Id. “A jury instruction

20
should substantially track the language of the statute describing

the crime; a material deviation from the statute can result in

reversible plain error, depending on the facts of the case.” People v.

Weinreich, 119 P.3d 1073, 1076 (Colo. 2005). We review not only

whether the jury instructions faithfully tracked the law but also

whether they were confusing or may have misled the jury. Garcia v.

People, 2022 CO 6, ¶ 16, 503 P.3d 135, 140 (citing People v. Janes,

982 P.2d 300, 303-04 (Colo. 1999)).

¶ 52 We review all unpreserved nonstructural errors, including

errors in jury instructions, for plain error. See Hagos v. People,

2012 CO 63, ¶ 14, 288 P.3d 116, 120. We reverse under the plain

error standard of review only if the error was obvious and

substantial, meaning it “so undermined the fundamental fairness of

the [proceeding] itself as to cast serious doubt on the reliability” of

the outcome. People v. Crabtree, 2024 CO 40M, ¶ 43, 550 P.3d

656, 667 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).

2. Ramcharan Did Not Waive His Challenge to
the Instructional Error

¶ 53 As a threshold matter, the People argue that Ramcharan

waived his instructional error argument because defense counsel

21
“agreed to the ‘substance’ of the proposed instructions as a whole”

and “his objection was limited to a singular request that the word

‘well-being’ be removed.” We disagree that such actions constituted

a waiver.

¶ 54 Whether a party waived an argument is a question of law that

we review de novo. Richardson v. People, 2020 CO 46, ¶ 21, 481

P.3d 1, 5. Waiver is the “intentional relinquishment of a known

right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d

893, 902 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247

(Colo. 1984)).

¶ 55 As Ramcharan asserts, “there is no evidence in the record that

[counsel] intentionally relinquished his right to have the jury

correctly instructed on the definition of ‘knowingly,’” even if his

counsel did not specifically object to that definitional instruction.

The facts in this case are similar to those in Rediger, where defense

counsel not only did not specifically object to the challenged

instruction but confirmed he was “satisfied with the instructions,”

and the record did not indicate that “the court or the parties

discussed that instruction.” Rediger, ¶ 10, 416 P.3d at 898. The

supreme court held that, on such facts, there was “no evidence,

22
either express or implied, that Rediger intended to relinquish his

right.” Id. at ¶ 42, 416 P.3d at 902. “For example, the record

contains no evidence that Rediger considered objecting to the

erroneous instruction but then, ‘for some tactical or other reason,

rejected the idea.’” Id. (citation omitted). So, too, in this case.

¶ 56 Therefore, Ramcharan did not waive his instructional error

argument.

3. The Court Erred by Providing an Instruction with an
Incorrect Definition of “Knowingly”

¶ 57 We agree with Ramcharan that the court’s instruction

incorrectly defined “knowingly.” (The People concede that the

instruction “did not wholly track the statutory definition of

‘knowingly’ or the pattern jury instruction.”)

¶ 58 To prove both sexual assault on a child and contributing to

the delinquency of a minor, a prosecutor must prove beyond a

reasonable doubt that the defendant acted knowingly. See

§ 18-3-405(1) (“Any actor who knowingly subjects another not his

or her spouse to any sexual contact commits sexual assault on a

child if the victim is less than fifteen years of age and the actor is at

least four years older than the victim.”) (emphasis added); see also

23
Gorman v. People, 19 P.3d 662, 665 (Colo. 2000) (“[T]he culpable

mental state of knowingly applies to the act of contributing to the

delinquency” of a minor.) (emphasis added).

¶ 59 Section 18-1-501(6) defines “knowingly” as when a person “is

aware that his conduct is of such nature or that such circumstance

exists . . . [and] when he is aware that his conduct is practically

certain to cause the result.” See also COLJI-Crim. F:195 (2023)

(pattern jury instruction F:195 defines “knowingly” as “when he

[she] is aware that his [her] conduct is of such nature or that such

a circumstance exists . . . [and] when he [she] is aware that his [her]

conduct is practically certain to cause the result”).

¶ 60 The court’s definition of “knowingly,” however, did not

“substantially track the language of the statute” or that of the

pattern instruction. Weinreich, 119 P.3d at 1076. While section

18-1-501(6) refers to “aware[ness] that [the defendant’s] conduct is

of such nature or that such circumstance exists,” the court’s

instruction said that “knowingly” referred to “the actor’s general

awareness of the nature of his conduct in relation to the child or his

awareness of the circumstances in which he commits an act against

the well-being of the child.” (Emphasis added.) The court added the

24
qualifier “general” before “awareness” and materially deviated from

the statutory definition by specifying that the subject conduct must

be in relation to the child or the defendant’s awareness of the

circumstances in which his act impacts the child’s well-being. See

People v. Mendez, 897 P.2d 868, 871 (Colo. App. 1995) (“The

modification, expansion, or clarification of the definition of a term

defined by statute is not recommended, especially when the

definitions have been approved by the supreme court for use in

criminal proceedings.”).

¶ 61 In addition, the court’s instruction lacked the statutory

language that the person is “aware that his conduct is practically

certain to cause the result.” § 18-1-501(6). This is a material —

and significant — omission from the language the General Assembly

chose to include in the definition.

¶ 62 For these reasons, the court erred by incorrectly defining

“knowingly” — the mens rea element for both of the charged

offenses.

4. The Instructional Error Was Obvious

¶ 63 An error is obvious if it is “so clear-cut” that “a trial judge

should be able to avoid it without benefit of objection.” Crabtree,

25
¶ 42, 550 P.3d at 667 (quoting Romero v. People, 2017 CO 37, ¶ 6,

393 P.3d 973, 976). Consequently, an error is obvious if it

“contravene[d] a clear statutory command, a well-settled legal

principle, or established Colorado case law.” Id. We agree with

Ramcharan that the error here was obvious.

¶ 64 First, as described in Part II.B.3 above, the instruction

contravened the clear language of section 18-1-501(6).

¶ 65 Second, as the People note, “[i]t appears that the instruction’s

language derived from People v. Noble, 635 P.2d 203 (Colo. 1981), a

felony child abuse case applying a former version of the child abuse

statute.” But the General Assembly enacted material amendments

to the child abuse statutes after the supreme court decided Noble.

Compare § 18-6-401(1), C.R.S. 1978, with § 18-3-405(1), (2)(a),

C.R.S. 2024. Thus, the instructional error contravened a clear

statutory command and Colorado case law, and was therefore

obvious. See Crabtree, ¶ 42, 550 P.3d at 667.

5. The Instructional Error Was Not Substantial

¶ 66 An error is substantial if, as noted above, it “so undermined

the fundamental fairness of the trial itself as to cast serious doubt

26
on the reliability of the judgment of conviction.” Id. at ¶ 43, 550

P.3d at 667 (quoting Wilson, 743 P.2d at 420).

¶ 67 “[A]n erroneous jury instruction does not normally constitute

plain error . . . where the record contains overwhelming evidence of

the defendant’s guilt.” Thompson v. People, 2020 CO 72, ¶ 54, 471

P.3d 1045, 1057 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)); see also Espinoza v. People, 712 P.2d 476, 478-79 (Colo.

1985).

¶ 68 The People contend that the error was not substantial because

the evidence against Ramcharan was overwhelming. We agree.

¶ 69 Turning first to the charge of sexual assault on a child, no

evidence contradicted A.M.’s testimony that Ramacharan put his

penis in her vagina. Indeed, in his interview with Detective Collins,

Ramcharan admitted that he “started to” have sex with A.M. The

jury watched the video of Ramcharan’s interview with Detective

Collins and the prosecutor showed the jury a transcript of the

interview.

¶ 70 Furthermore, the nurse who examined A.M. following the

alleged sexual assault testified at trial that A.M.’s genitalia were

inflamed and torn, consistent with sexual activity. Although the

27
nurse agreed on cross-examination that such injuries could occur

through consensual sex, and Ramcharan told Detective Collins that

“everything that happened [with A.M.] was completely consensual,”

Ramcharan could not avoid conviction by arguing that A.M. — a

fourteen-year-old girl — consented to engage in sex with him. See

People v. Hodge, 2018 COA 155, ¶ 16, 488 P.3d 436, 439-40

(“[C]hild sexual assault . . . recognizes that a child cannot legally

consent to sexual contact or to any conduct that facilitates that

sexual contact.”).

¶ 71 Lastly, the male Y-STR profile was consistent with

Ramcharan’s genetic material, with an expected frequency of “1 in

2,007 individuals.” Cf. People v. Brown, 2014 COA 155M-2, ¶¶ 7,

13, 360 P.3d 167, 170-71 (holding there was no reversible error

when an “expert testified that certain Y-STR profiles obtained from

the crime scene matched defendant’s profile”).

¶ 72 Overwhelming evidence also supported Ramcharan’s

conviction for contributing to the delinquency of a minor premised

on his act of forcing A.M. to smoke methamphetamine. As noted

above, officers found in the jacket Ramcharan had been wearing on

the day of the sexual assault the white pipe that A.M. said

28
Ramcharan forced her to smoke, containing the very type of residue

that A.M. had described. At trial, the prosecutor introduced into

evidence a photograph of the pipe, containing residue, on top of the

jacket and next to Ramcharan’s driver’s license.

¶ 73 Ramcharan disagrees that the evidence against him was

overwhelming. He argues that his admission that he “started to”

have sex with A.M. was vague and could encompass conduct that

did not constitute sexual assault on a child. In addition, he

challenges the People’s contention that the DNA analysis “strongly

tied” Ramcharan to the crime because an expert witness who

testified for the prosecution opined that the analysis showed only

that Ramcharan “could not be excluded from” the profile.

¶ 74 But Ramcharan does not demonstrate how the erroneous

definition of “knowingly” undermined “the fundamental fairness” of

his trial, particularly as his theory of defense was a general denial

of the charges. Crabtree, ¶ 43, 550 P.3d at 667 (quoting Wilson,

743 P.2d at 420). Although Ramcharan contends that the

instructional error “relieved the prosecution of its burden of proving

each element of each offense beyond a reasonable doubt,” such

argument is conclusory and does not overcome the undisputed,

29
overwhelming evidence in the record. See People v. Wallin, 167 P.3d

183, 187 (Colo. App. 2007) (declining to address arguments

presented in a perfunctory or conclusory manner).

¶ 75 For these reasons, we hold that the court’s instructional error

was not plain and, therefore, does not warrant reversal.

C. Requests for Substitute Counsel

¶ 76 Ramcharan contends that the court reversibly erred by

denying his multiple requests for substitute counsel because he

and his counsel had an irreconcilable conflict. We disagree.

1. Additional Facts

¶ 77 A public defender initially represented Ramcharan; he was

later represented by alternate defense counsel. Ramcharan asked

the court twice to discharge his public defender and thrice to

discharge alternate defense counsel. The court conducted five ex

parte hearings across a two-year period, over which four judicial

officers presided, to consider Ramcharan’s requests. (A court must

conduct a hearing, at which both attorney and client may testify, to

adjudicate a defendant’s assertion that his appointed attorney

cannot or will not completely represent him. People v. Bergerud,

223 P.3d 686, 694-95 (Colo. 2010).)

30
¶ 78 In his first motion for new counsel, Ramcharan complained

that his public defender was not communicative and that there was

a “lack of trust” between them. The public defender responded that

Ramcharan did not want her honest assessment of his case.

Ramcharan further asserted that he disagreed with the direction

she was taking in developing a defense strategy. Specifically, he

told the court he wanted to pursue defenses resting on his

ignorance of A.M.’s age, which he attributed, in part, to a recent eye

injury. The public defender had told him “several times” that his

assertions would not support a defense.

¶ 79 At a Bergerud hearing in November 2020, the court found that

these facts did not establish a breakdown in communication

between Ramcharan and his public defender. The court explained

to Ramcharan that, “whether or not you agree with the way [your

lawyer] is formulating this case . . . , she gets to make the decision.”

(Ramcharan later apparently wanted his lawyer to argue that the

eye injury rendered his statements to the officers involuntary.)

¶ 80 Two months later, Ramcharan filed a second motion for new

counsel that rehashed the arguments in his first motion. But

following the Bergerud hearing on the second motion, the court

31
found that there had been a breakdown in communication between

the public defender and Ramcharan, discharged the public

defender, and appointed alternate defense counsel for him.

¶ 81 Five months later, Ramcharan moved to dismiss his new

counsel. Ramcharan complained that his new lawyer, like his

former lawyer, was not pursuing a defense relating to his eye injury,

which he said demonstrated that he had “unknowingly” had sex

with a child. Ramcharan also told the court that his new counsel

did not believe he had a defense and “causes doubt” and trust

issues, and that, as a result, Ramcharan “didn’t want to speak to

him.” Counsel responded that, because Ramcharan was refusing to

speak to him, “his ability to communicate with Ramcharan had

deteriorated to the point that he couldn’t effectively represent him.”

Following another Bergerud hearing, the court found that “this is

largely a situation where there is a significant difference in . . .

defense strategy,” which is not grounds to appoint new counsel, and

denied Ramcharan’s request.

¶ 82 Less than two weeks later, Ramcharan again told the court

that he and his new counsel had a complete breakdown in

32
communication and that the court should appoint a new lawyer for

him. The court conducted a fourth Bergerud hearing.

¶ 83 At the hearing, counsel “conceded that he missed an

appointment he had scheduled with Ramcharan to get a release for

hospital records” relating to the eye injury. Ramcharan said he had

lost trust in the lawyer as a consequence. Nevertheless, the court

again denied Ramcharan’s request for new counsel. During the

hearing, the court advised Ramcharan of his right to represent

himself. Ramcharan said he did not want to do so.

¶ 84 In November 2021, the court held a fifth Bergerud hearing

after Ramcharan again requested new counsel. Ramcharan and his

counsel both told the court that their communications had broken

down. In addition, Ramcharan continued to emphasize his belief

that the eye injury was critical to his defense, as he claimed it

impacted the voluntariness of his statements to the officers.

Defense counsel told the court that he disagreed with Ramacharan

regarding the relevance of the eye injury and said that Ramcharan

would not accept his explanation that mistake as to the victim’s age

is not a defense to a sexual assault on a child charge. The court

observed that “[t]he problem for me is that no matter who tells him

33
that his defense is not viable, he’s not going to believe it.” The court

again denied Ramcharan’s request to appoint new counsel.

2. Standard of Review and
the Law Governing a Defendant’s Request
to Discharge Counsel

¶ 85 “A defendant’s motion to discharge an attorney is addressed to

the sound discretion of the trial court, and its ruling will not be

disturbed on review absent an abuse of discretion.” People v.

Bostic, 148 P.3d 250, 259 (Colo. App. 2006). “Before change of

counsel is warranted the trial court must verify that the defendant

has ‘some well founded reason for believing that the appointed

attorney cannot or will not completely represent him.’” People v.

Arguello, 772 P.2d 87, 94 (Colo. 1989) (quoting 2 Wayne R. LaFave

& Jerold H. Israel, Criminal Procedure 37 (1984)).

¶ 86 “When an indigent criminal defendant voices objections to

court-appointed counsel, the trial court must inquire into the

reasons for dissatisfaction. If the defendant establishes good cause,

such as a conflict of interest or a complete breakdown of

communication, the court must appoint substitute counsel.” People

v. Apodaca, 998 P.2d 25, 28 (Colo. App. 1999). “Conversely, if the

court has a reasonable basis for concluding that the attorney-client

34
relationship has not deteriorated to the point where counsel is

unable to give effective assistance, the court is justified in refusing

to appoint new counsel.” Id.

3. The Court Did Not Abuse Its Discretion
by Denying Ramcharan’s Requests for New Counsel

¶ 87 The transcripts of the five Bergerud hearings demonstrate that

the court did not abuse its discretion by rejecting all but one of

Ramcharan’s requests to discharge his lawyer and appoint new

counsel for him. Rather, the record underscores that the court

correctly found that the difficulty in the communications between

Ramcharan and his lawyers primarily rested on their disagreements

regarding the relevance of Ramcharan’s eye injury. As the court

noted, case strategy is a matter left to counsel. Bergerud, 223 P.3d

at 693 (“On issues of trial strategy, defense counsel is ‘captain of

the ship.’” (quoting Arko v. People, 183 P.3d 555, 558 (Colo. 2008))).

¶ 88 Further, because a “source of limitations on an attorney’s

actions is that these decisions of trial strategy are held to a

standard of professional reasonableness,” id. at 694, the court

correctly found that Ramcharan’s lawyers did not pursue

35
Ramcharan’s desired strategy regarding the eye injury because

such strategy could not support a valid defense.

¶ 89 Because the purported conflict primarily arose from

Ramcharan’s mistaken belief that he could dictate the legal strategy

his lawyers pursued and his resulting refusal to cooperate with

them, there was no basis for appointment of new counsel. See

People v. Kelling, 151 P.3d 650, 653 (Colo. App. 2006)

(“Disagreements pertaining to matters of trial preparation, strategy,

and tactics do not establish good cause for substitution of

counsel.”); see also People v. Hodges, 134 P.3d 419, 425 (Colo. App.

2005) (“Neither the existence of animosity between defendant and

[the lawyer] nor [the lawyer’s] asserted disagreement with defendant

regarding the strength of defendant’s case constitutes an actual

conflict of interest requiring the appointment of substitute

counsel.”), aff’d on other grounds, 158 P.3d 922 (Colo. 2007).

¶ 90 For these reasons, we hold that the court did not abuse its

discretion by denying Ramcharan’s requests that the court

discharge his lawyers and appoint new counsel for him.

36
III. Disposition

¶ 91 The judgment of conviction is affirmed.

JUDGE SCHUTZ and JUSTICE MARTINEZ concur.

37