Peo v. Hernandez Flores

22CA1304 Peo v Hernandez Flores 09-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1304
Jefferson County District Court No. 21CR590
Honorable Robert Lochary, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Modesto Hernandez Flores,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE NAVARRO
Dunn and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 19, 2024

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

The Noble Law Firm LLC, Antony Noble, Jennifer Tuttle, Lakewood, Colorado,
for Defendant-Appellant
¶1 Defendant, Modesto Hernandez Flores,1 appeals the judgment

of conviction entered on a jury verdict finding him guilty of sexual

assault on a child by a person in a position of trust. We affirm.

I. Factual and Procedural History

¶2 In January 2021, S.C. and her mother lived with Flores after

her mother had separated from S.C.’s father. Around this time,

S.C., who was about twelve years old, began visiting her father on

weekends. During a visit, S.C. told her father that Flores had

sexually assaulted her when she was about seven years old. S.C.

recalled that, around the time of the assault, she remembered

wearing a “sunflower dress” and that the assault occurred around a

holiday.

¶3 Based on S.C.’s initial description of the assault, the

prosecution charged Flores with sexual assault on a child by one in

a position of trust. The complaint initially alleged that the assault

occurred around Thanksgiving 2015; however, after S.C.’s family

found photos of her wearing the sunflower dress, the prosecution

amended the complaint to allege that the assault occurred between

1 Because defendant refers to himself as “Flores” in his appellate

briefs, we do the same going forward.

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Easter 2014 and Thanksgiving 2015 (April 1, 2014, to November

30, 2015). A jury convicted Flores as charged.

¶4 On appeal, Flores contends that the trial court erred by

(1) permitting prosecution witnesses to improperly bolster S.C.’s

credibility and (2) allowing prosecutorial misconduct.

II. Witness Testimony

¶5 We first reject Flores’s contention that the trial court

committed reversible error by permitting witnesses to tacitly testify

that S.C. was telling the truth about the incident.

A. Standard of Review

¶6 We review for an abuse of discretion a trial court’s decision to

admit evidence. Venalonzo v. People, 2017 CO 9, ¶ 15. A trial court

abuses its discretion “when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misconstrues or misapplies the

law.” People v. Williams, 2016 COA 48, ¶ 18, aff’d, 2020 CO 78.

Where, as here, a defendant fails to preserve an appellate claim by

objection in the trial court, we will reverse the judgment only if

plain error occurs. See Hagos v. People, 2012 CO 63, ¶ 14. An

error is plain if it is obvious and so undermined the fundamental

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fairness of a trial as to cast serious doubt on the reliability of the

conviction. People v. Walker, 2022 COA 15, ¶ 28.

B. Expert Testimony

¶7 Flores argues that the court erred by admitting generalized

expert testimony about the behaviors of child victims of sexual

assault2 as well as expert testimony about S.C.’s forensic interview.

¶8 “If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of

an opinion or otherwise.” CRE 702. Expert testimony “is that

which goes beyond the realm of common experience and requires

experience, skills, or knowledge that the ordinary person would not

have.” Venalonzo, ¶ 22. Generalized expert testimony is

permissible if the testimony “has a sufficient logical connection to

the factual issues to be helpful to the jury while still clearing the

2 Generalized expert testimony is that given by an expert witness

who knows little or nothing about the facts of the case and has not
examined the victim or the defendant. See People v. Yachik, 2020
COA 100, ¶ 49 n.5; People v. Cooper, 2021 CO 69, ¶ 1 n.1.

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ever-present CRE 403 admissibility bar.” People v. Cooper, 2021

CO 69, ¶ 3.

¶9 But no witnesses, not even expert witnesses, may testify that

“another witness is telling the truth on a particular occasion.”

Venalonzo, ¶ 32. “This rule applies to both direct and indirect

implications of a [witness’s] truthfulness” because of “the possibility

that it will improperly invade the province of the fact-finder.” Id.

¶ 10 Without running afoul of this principle, however, “‘[a]n expert

may testify as to the typical demeanor and behavioral traits

displayed by a sexually abused child’ . . . because it assists the jury

in understanding the victim’s behavior after the incident — why the

victim acted the way he or she did.” People v. Relaford, 2016 COA

99, ¶ 28 (quoting People v. Mintz, 165 P.3d 829, 831 (Colo. App.

2007)). This type of expert testimony helps the jury understand the

“typicality of reactions by [children] who have been subjected to

sexual abuse that might, under other circumstances, be considered

bizarre.” People v. Short, 2018 COA 47, ¶ 13 (citation omitted).

¶ 11 This type of evidence is permissible because it “(1) relates to

an issue apart from credibility and (2) only incidentally tends to

corroborate a witness’s testimony.” Relaford, ¶ 31 (quoting People

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v. Cernazanu, 2015 COA 122, ¶ 20). “This evidence does not say

whether the child was or was not lying on a specific occasion;

instead, it explains why a jury should not necessarily disbelieve a

child because of circumstances that, in a different context, would

discredit the child’s story.” Short, ¶ 14; see People v. Whitman, 205

P.3d 371, 383 (Colo. App. 2007). Such information provides “a

relevant insight into the puzzling aspects of the child’s conduct and

demeanor which the jury could not otherwise bring to its

evaluation.” Short, ¶ 14 (citation omitted).

1. Testimony of Beth Peters

¶ 12 At trial, the prosecution offered Beth Peters as a child

psychology expert in the areas of “sexual assault behavior,

dynamics and response of victims.” Defense counsel did not object,

and the trial court qualified Peters as an expert in the identified

areas. Peters testified that she did not know S.C. or her family and

that she had not reviewed any documents related to the case.

¶ 13 Peters said she knew of the “very basic demographics” of the

situation: “the general part of development that the child was in

when the abuse . . . allegedly occurred,” there was a delay in

disclosure, “the family experienced divorce,” and the family “might

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be” of Hispanic or Latin background. Peters explained that it was

important to know this information because children of different

ages respond differently and have different brain development. She

also testified that cultural background can play a role in a child’s

decision to disclose abuse (or refrain from doing so) as well as a

family’s reaction to such an allegation.

¶ 14 Peters testified that about twenty-five percent of her practice

involves Hispanic families and that, in her experience, “there are

sometimes pressures for the victim to not tell, because there is a

belief that adults are in charge and children are subordinate.”

Peters also said that girls in particular are “often viewed as

possessions of the parents or adults around them.” She clarified,

however, that she was not offering an observation about the facts of

this particular case; instead, she was making a “generalization.”

¶ 15 Peters then discussed how children often delay reporting

sexual assault. She testified that “[o]ver [seventy] percent of

children do not tell right away. Many of them wait until they’re

adults.” Discussing why children might delay, Peters told the jury

that children are often “really afraid to tell” others about an incident

because they do not want to upset people. She said that “[fifty]

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percent of the time that’s the case. The person doesn’t believe

them . . . .”

¶ 16 Peters also opined that sexual abuse is more frequent “among

divorced families” but is “often not investigated.”

¶ 17 Finally, Peters testified that children are frequently blamed for

the abuse. Therefore, “they’re more likely to say, no, no nothing

happened. I’m okay, I’m okay, than they are to say, oh, yeah, this

happened, and be lying about it. It’s extremely rare in my

experience and in the research.”

¶ 18 As to all but Peters’s last comment, we do not discern error,

much less obvious error. And we conclude that her last comment

does not require reversal.

¶ 19 First, we discern no error in the court permitting Peters to

testify generally concerning her experiences with Hispanic families,

especially absent a defense objection. This testimony was relevant

to help contextualize S.C.’s delayed accusations. Also, Flores

premised his defense, in part, on his theory that her accusations

resulted from her father’s coaching or suggestions. In support,

Flores called multiple family members who testified that they did

not believe he committed the crime. Peters’s testimony generally

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discussing her experience working with Hispanic families and how

culture may impact family dynamics was relevant to assessing

Flores’s defense. That is, Peters’s testimony provided the jury with

a possible explanation for why some members of Flores’s family

might believe him over S.C. See Cooper, ¶ 52 (noting generalized

expert testimony is permissible if there is a sufficient logical

connection to the factual issues to be helpful to the jury); see also

People v. Thompson, 2017 COA 56, ¶¶ 170-171 (permitting expert

testimony discussing barriers to disclosure, such as familial

relationships and familial cultures). Peters did not testify, directly

or by implication, that S.C. was telling the truth about the abuse

allegation or that Peters believed S.C. See Thompson, ¶¶ 172-173.

¶ 20 Second, the trial court did not abuse its discretion by

permitting Peters to testify to the occurrence of delayed disclosure

by child victims of sexual abuse. Colorado courts have consistently

recognized that this form of generalized expert testimony is

admissible because it aids the jury in understanding the victim’s

potentially counterintuitive behavior. See Cooper, ¶¶ 72, 97

(upholding admission of expert testimony educating the jurors on

matters about which they likely lacked knowledge or insight

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because “any bolstering effect it may have had on [the victim’s]

credibility was incidental and acceptable”); see also Relaford, ¶ 28

(generalized expert testimony regarding the typical demeanor and

behavioral traits displayed by a sexually abused child is usually

admissible).

¶ 21 Although Peters testified that over seventy percent of children

“do not tell right away,” she did not testify that a child who delays

reporting must be telling the truth. Rather, Peters’s testimony

explained that a factor that might normally cause a fact finder to

disbelieve an accuser’s claim (delay in reporting) might not be

decisive in assessing the accuser’s credibility in this context. Of

course, the jury retained the prerogative to disbelieve S.C. because

of the delay or for any other reason. The court instructed the jurors

that they could reject an expert’s testimony. And, given the

Colorado case law permitting testimony similar to that admitted

here, we cannot say the trial court committed obvious error.

¶ 22 Third, the court did not abuse its discretion by admitting

Peters’s testimony that, when a child reports abuse, fifty percent of

the time they are not believed. This testimony about other people’s

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reaction to a report of abuse did not reasonably assert or imply that

a child who reports abuse must be telling the truth.

¶ 23 Fourth, we do not see reversible error in the court’s admitting

Peters’s statements regarding sexual abuse among divorced families

because Flores invited any error. See People v. Wittrein, 221 P.3d

1076, 1082 (Colo. 2009) (explaining that a party may not complain

of an error that they have invited or injected into the case; they

must abide the consequences of their acts). On recross-

examination, defense counsel asked Peters if, “in studies on false

allegations, those tend to be part of either, like a custody dispute or

contested divorce situation.” Peters responded that false allegations

are “definitely more frequent in those cases.” Immediately

afterward, she testified that “sexual abuse is also more frequent

among divorced families” and that child protective services might

not investigate a claim of sexual abuse in a high-conflict divorce

because they may assume that “it’s one adult accusing another.”

Because an investigation occurred here, Flores argues that this

statement indicated that S.C. was telling the truth.

¶ 24 The challenged testimony was strategically elicited by defense

counsel because it was a foreseeable result of counsel’s question.

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See id. By asking Peters about the credibility of child sexual abuse

allegations in divorced families, Flores invited Peters’s testimony on

that topic. And, on appeal, Flores does not argue that Peters’s

testimony at issue was unforeseeable. Instead, he acknowledges

that, in the challenged testimony, Peters “qualified her answer” to

defense counsel’s question. Because Flores invited the alleged

error, we will not consider it further.

¶ 25 Finally, we agree with Flores that it was error to admit Peters’s

testimony that a child’s lying about sexual abuse is “extremely

rare.” See, e.g., People v. Marx, 2019 COA 138, ¶¶ 8, 20-21. We

conclude, however, that this brief testimony was not so substantial

and damaging as to require reversal under the plain error standard.

The prosecutor did not refer to that single statement later in the

trial. Instead, much of the closing arguments focused on aspects of

the case that were unrelated to Peters’s testimony. Cf. Walker, ¶ 49

(discerning no plain error in prosecution’s allegedly improper

remarks because, among other things, they were fleeting).

Additionally, defense counsel’s failure to object to the testimony at

issue indicates counsel’s belief that the testimony was not overly

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damaging. See Domingo-Gomez v. People, 125 P.3d 1043, 1054

(Colo. 2005).

¶ 26 Consequently, we conclude that none of the alleged errors

requires reversal.

2. Testimony of Linda Mikow

¶ 27 Flores contends that Linda Mikow’s testimony about S.C.’s

forensic interview impermissibly opined that S.C.’s allegation was

true. We disagree.

¶ 28 The prosecution endorsed Mikow as an expert in forensic

interviewing, Flores did not object, and the court accepted her as

such. Mikow explained that she did not conduct the interview of

S.C. but that she was familiar with the case. Mikow discussed the

general structure of a forensic interview and explained how her

organization follows the “best practices” and standards for forensic

interviews as established by the National Children’s Alliance.

¶ 29 Mikow identified some guidelines for conducting a forensic

interview. She said interviewers typically tell children to let them

know if they do not understand a question, not to guess if they do

not know an answer to a question, and to correct the interviewer if

the interviewer makes a mistake. Mikow also testified that she

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reviewed the interview conducted with S.C. and that the interview

was consistent with the training provided by the Colorado

Children’s Alliance.

¶ 30 On cross-examination, defense counsel asked Mikow if a

second interview is conducted in cases where there is a problem

with the initial interview. The prosecutor objected, noting that no

second interview occurred here and arguing that this line of

questioning could “open[] the door to commenting on credibility of a

particular interview.” The prosecutor said that, depending on

Mikow’s answers, he may have to ask if anything occurred in S.C.’s

interview that would suggest a follow-up interview was necessary.

The court overruled the objection, noting that the prosecutor could

have redirect examination. Defense counsel then elicited Mikow’s

testimony that a law enforcement officer, not the forensic

interviewer, would decide whether problems existed with the initial

interview such that a second interview was necessary.

¶ 31 On redirect, the prosecution asked Mikow if S.C. had asked

clarifying questions (correcting the interviewer) during the interview.

Mikow said S.C. had done so. The prosecutor then asked are “those

the types of things you want to see from a person as you’re

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conducting the interview?” Mikow responded “yes, it is.” Mikow

then testified that she was not familiar with a reason why a second

interview would have been conducted in this case and the interview

she reviewed complied with the pertinent training.

¶ 32 Flores argues that Mikow’s testimony that correcting the

interviewer is something she would “want to see” during a forensic

interview impermissibly opined that S.C. that was telling the truth

during the interview. For two reasons, we disagree: (1) Flores,

despite the prosecutor’s objection, opened the door to evidence of

Mikow’s view on whether there were problems with the forensic

interview, including Mikow’s view on the appropriateness of S.C.’s

responses to questions, see People v. Cohen, 2019 COA 38,

¶¶ 21-26 (explaining the opening the door concept); and (2) Mikow’s

statements merely clarified that the behaviors she observed during

S.C.’s interview — specifically, S.C.’s correcting the interviewer —

were in line with what Mikow would expect in a forensic interview.

Mikow’s statements neither directly nor implicitly addressed the

veracity of S.C.’s statements.

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C. Lay Witness Testimony

¶ 33 Flores contends that the trial court erred by admitting certain

testimony from S.C.’s family members because it improperly

expressed their opinion that S.C. was telling the truth about the

charged incident. We are not convinced.

¶ 34 On direct examination, the prosecutor asked S.C.’s mother

about the night S.C. first alleged the assault. Her mother said she

talked to S.C. about the allegations to make sure that S.C.

understood their serious nature. Her mother said S.C. become

emotional. The prosecutor asked about S.C.’s demeanor when

discussing the allegations. Her mother testified that S.C. was “very

serious” and “very straight-forward and confident with her answer.”

¶ 35 The prosecution also called S.C.’s brother, who testified that

he asked S.C. on multiple occasions if the assault “really

happened.” The prosecutor asked her brother about S.C.’s

demeanor during these conversations. Her brother testified that

S.C. was “very serious, matter of fact” and that she would “make

eye contact and say yes” when asked if the incident happened.

¶ 36 Contrary to Flores’s assertion, neither S.C.’s mother nor

brother testified that she told the truth in her allegation against

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Flores. They simply commented on her demeanor during her

reporting of the allegation, a permissible factor for the jury to

consider when assessing her credibility. See People v. Constant,

645 P.2d 843, 846 (Colo. 1982); People v. Sandoval, 709 P.2d 90, 92

(Colo. App. 1985) (noting the prosecution could ask the child victim

of sexual assault whether she had vomited before coming into the

courtroom because it related to the victim’s credibility). Indeed, the

jury instructions in this case advised the jury that it may consider

demeanor in assessing a person’s credibility. See Constant, 645

P.2d at 846 (“[E]ven though ‘demeanor’ is not technically evidence,

the jury is not only permitted but also affirmatively instructed to

consider it in assessing witness credibility.”). Unlike in Cernazanu,

¶ 16, neither witness testified that S.C. did not engage in her

“typical lying behavior.” Both her mother and brother simply

addressed her general demeanor, not the sincerity of her allegation.

¶ 37 Consequently, we conclude that the trial court did not err.

III. Alleged Prosecutorial Misconduct

¶ 38 Flores contends that the trial court erred by allowing

prosecutorial misconduct. Specifically, he argues that the court

allowed the prosecutor to (1) ask questions during voir dire that

16
improperly “indoctrinated” the jurors to the prosecution’s theory of

the case; (2) elicit the testimony discussed in Part II of this opinion;

(3) ask questions during cross-examination of witnesses that

displayed the prosecutor’s personal opinion that Flores was guilty;

and (4) engage in improper closing arguments. We disagree.

¶ 39 “In reviewing a claim of prosecutorial misconduct, ‘we consider

whether the prosecutor’s conduct was improper and whether any

impropriety requires reversal.’” People v. Garcia, 2022 COA 144,

¶ 56 (citation omitted). “Whether a prosecutor’s statements

constitute misconduct is generally a matter left to the trial court’s

discretion.” Id. Accordingly, we will not disturb the court’s rulings

on alleged misconduct absent an abuse of discretion. People v.

Strock, 252 P.3d 1148, 1152 (Colo. App. 2010).

¶ 40 Flores did not object to most of the prosecutor’s comments

that he challenges on appeal. When a claim of error is not

preserved, our review is quite limited — we may reverse only if plain

error occurred. Hagos, ¶ 14. To constitute plain error,

prosecutorial misconduct must be “flagrantly, glaringly, or

tremendously improper.” People v. Dominguez-Castor, 2020 COA 1,

¶ 86 (citation omitted).

17
¶ 41 We have examined Flores’s contentions that the trial court

improperly permitted prosecutorial misconduct, and we conclude

that none shows that the court committed reversible error.

¶ 42 First, the prosecutor’s questions during voir dire — to which

Flores did not object — simply sought to assess whether the

prospective jurors possessed biases or beliefs that might prevent

them from acting fairly and applying the law. See People v. Collins,

730 P.2d 293, 300 (Colo. 1986) (“The purpose of voir dire

examination is to enable counsel to determine whether any

prospective jurors are possessed of beliefs which would cause them

to be biased in such a manner as to prevent the counsel’s client

from obtaining a fair and impartial trial.”); Garcia, ¶ 18 (same). In

context, the prosecutor’s questioning could be fairly understood as

exploring whether, absent physical evidence and third-party

eyewitnesses, the jury could still find a defendant guilty beyond a

reasonable doubt if the jury believed the complaining witness. That

reflects an accurate understanding of the law, so the prosecutor’s

attempt to discover whether jurors could apply this law was not

improper. See People v. Salazar, 2023 COA 102, ¶ 51 (“The premise

of the prosecutor’s arguments was that the jury should convict

18
Salazar if the jury believed the victims. And it is true that, if the

jury believed the victims, Salazar committed sexual assault on a

child.”); People in Interest of J.R., 2021 COA 81, ¶ 54 (discerning no

error in the statement that “you’re going to find [the victims]

credible, and when that happens, they will be vindicated and you

will hold [the defendant] accountable”).

¶ 43 Although Flores relies almost exclusively on out-of-state

decisions to support his challenge to the prosecutor’s voir dire

questions, we do not rely on those decisions because Colorado

authority is sufficient. At any rate, those out-of-state decisions

could not establish that the trial court here committed obvious error

by not intervening sua sponte to address the prosecutor’s

questioning. See Walker, ¶ 68 (recognizing that prior Colorado case

law bears on the obviousness analysis).

¶ 44 Second, we have concluded that the testimony discussed in

Part II of this opinion either was admissible, was not obviously

inadmissible, or was not substantially prejudicial. Consequently,

we further conclude that the trial court did not reversibly err by

permitting the prosecutor to elicit this evidence, especially given

that defense counsel expressed no objection to it.

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¶ 45 Third, we are unpersuaded by Flores’s contention that the

prosecutor, during cross-examination of witnesses, impermissibly

communicated a personal belief that S.C. was credible by asking

whether the witnesses were aware of S.C.’s detailed allegations or

had seen S.C.’s forensic interview. The prosecutor was permitted to

ask the witnesses about the basis for their testimony because it

bore on their credibility. And to the extent Flores challenges some

of the prosecutor’s questions to him about S.C.’s delayed

accusations, we note that Flores objected and the trial court

sustained the objections. Because Flores did not ask for further

relief, we discern no error. See People v. Douglas, 2012 COA 57,

¶ 65; Mingo v. People, 468 P.2d 849, 851 (Colo. 1970).

¶ 46 Finally, we reject Flores’s contention that the prosecutor

engaged in obvious and substantial misconduct in closing

arguments. On this issue, we reason as follows:

• The prosecutor’s argument that the evidence did not

support Flores’s defense theory was not improper, see

Walker, ¶ 41; regardless, the trial court sustained an

objection to it, and Flores did not seek other relief.

20
• The prosecutor’s argument recalling S.C.’s testimony that

she was “not making this up” and her brother’s

description of her demeanor when she disclosed the

allegations to him were not improper because that

testimony was admissible. See People v. McGrath, 793

P.2d 664, 667 (Colo. App. 1989) (noting that, where

evidence is admitted at trial, the prosecutor may properly

comment on it during closing).

• The prosecutor’s statements that he had changed the

date range of the alleged crime based on new information

and that the prosecutor’s office had discovered

photographic material supporting the allegations were

not misconduct. The prosecutor did not assert or imply

that he personally believed S.C.’s allegations; he argued

that the evidence supported the amended date range.

• The prosecutor did not unduly appeal to the jury’s

sympathy by arguing that S.C. “had the strength to come

in here, in front of all you strangers, in this

uncomfortable environment, to tell you what happened.”

A prosecutor may use “oratorical embellishment” in

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closing argument. See Salazar, ¶¶ 48-52 (finding no

plain error in more dramatic and inartful prosecutorial

arguments); J.R., ¶¶ 48-50 (holding that the prosecutor

did not commit misconduct by arguing that “testifying

about sexual abuse was hard for young children”

because the argument reflected “everyday experience and

common sense”).

¶ 47 For all these reasons, “we conclude that the prosecutor’s

conduct ‘does not warrant the drastic remedy of reversal under the

plain error standard.’” Salazar, ¶ 53 (citation omitted).

IV. Cumulative Error

¶ 48 Flores contends that the alleged errors in this case, when

considered cumulatively, denied him a fair trial. “When reviewing

for cumulative error, we ask whether ‘numerous formal

irregularities, each of which in itself might be deemed harmless,

may in the aggregate show the absence of a fair trial.’” People v.

Vialpando, 2022 CO 28, ¶ 33 (quoting Howard-Walker v. People,

2019 CO 69, ¶ 24). To reverse under this doctrine, we must

conclude that “the cumulative effect of [multiple] errors and defects

substantially affected the fairness of the trial proceedings and the

22
integrity of the fact-finding process.” Howard-Walker, ¶ 24 (citation

omitted).

¶ 49 Because we have rejected most of Flores’s assertions of error,

and because the other alleged errors were not substantial, we

conclude that, even in the aggregate, the asserted errors do not

show the absence of a fair trial. See, e.g., People v. Wise, 2014 COA

83, ¶ 31 (“As is often said, a defendant is entitled to a fair trial, not

a perfect one.”).

V. Conclusion

¶ 50 The judgment is affirmed.

JUDGE DUNN and JUDGE GOMEZ concur.

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