People v. Melara

     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
                                                                 May 15, 2025

                                

No. 23CA1125, People v. Melara — Criminal Law — Model Jury
Instructions — Presumption of Innocence, Burden of Proof, and
Reasonable Doubt — Lack of Evidence Presented

     As a matter of first impression, a division of the court of

appeals concludes that the trial court did not err by providing the

jury with a definition of “beyond a reasonable doubt” that did not

expressly inform the jury that it could base its verdict on the “lack

of evidence” in the case. Although the trial court should have

included the “lack of evidence” language, the omission did not lower

the prosecution’s burden of proof and therefore did not error given

the facts of this case.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 23CA1125
Boulder County District Court No. 21CR21
Honorable Patrick Butler, Judge


The People of the State of Colorado,

Plaintiff-Appellee

v.

Nelson Melara,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division VI
                         Opinion by JUDGE SCHUTZ
                              Kuhn, J., concurs
                         Welling, J., specially concurs

                           Announced May 15, 2025



Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Polansky Law Firm, PLLC, Lisa A. Polansky, Boulder, Colorado, for
Defendant-Appellant
¶1    Defendant, Nelson Melara, appeals the trial court’s judgment

 of conviction entered on jury verdicts finding him guilty of two

 counts of sexual assault on a child (position of trust). We affirm the

 judgment.

                  I.   Background and Procedural History

¶2    Melara was convicted of sexually abusing his daughter and

 granddaughter. The jury heard the following evidence that

 supports the verdicts.

¶3    Melara began sexually abusing his daughter when she was

 about eleven years old and repeatedly assaulted her until she was

 approximately fourteen years old. When daughter was old enough,

 she moved out of the family home and limited contact with her

 parents.

¶4    In 2019, daughter and her two children, a son and a daughter

 (who is the victim we refer to as granddaughter), moved back in

 with her parents due to ongoing financial difficulties.

 Granddaughter was four years old when they moved in. Daughter

 routinely asked both children whether anyone had touched their

 private parts.




                                    1
¶5    In September 2020, when daughter asked granddaughter

 whether anyone had touched her vagina, granddaughter responded,

 “[N]o, but grandpa did.” Daughter followed up with granddaughter

 later that evening and asked her the same question.

 Granddaughter replied in the same way, and when asked whether

 she was hurt, granddaughter stated that “it hurt when [Melara]

 pushed up.”

¶6    In October, daughter and her children moved out of her

 parents’ home. Shortly after, daughter reported the conversation

 with granddaughter to the police. After an investigation, Melara

 was charged with two counts of sexual assault on a child (position

 of trust) — one relating to daughter and one relating to

 granddaughter — along with an aggravated sexual offense sentence

 enhancer.

¶7    The charges were joined for a single trial held in August 2022.

 Defense counsel moved to sever the separate charges arising out of

 the assaults against daughter and granddaughter. The trial court

 denied the motion and proceeded to trial on both counts. The trial




                                   2
 court declared a mistrial after lengthy deliberations resulted in a

 hung jury.1

¶8    The trial court set the matter for retrial in March 2023.

 Between January and March, defense counsel and the prosecution

 discussed a possible community-based plea but were unable to

 reach an agreement. After a five-day trial, the jury convicted Melara

 as charged. The trial court sentenced him to a combined term of

 thirty years to life in the custody of the Department of Corrections.

¶9    On appeal, Melara asserts that the trial court erred by (1)

 failing to advise the jury that it could consider the lack of evidence

 in the case when assessing whether the prosecution proved the

 charges beyond a reasonable doubt; (2) denying his motion to

 enforce a plea offer; (3) improperly limiting his expert’s testimony;

 (4) failing to sever the charges involving daughter and

 granddaughter; and (5) admitting child hearsay statements. We

 address these contentions in turn.




 1 The jurors were aligned ten to two in favor of acquittal on the

 count alleging sexual assault of daughter, and eight to four in favor
 of conviction with respect to the count alleging sexual assault of
 granddaughter.

                                    3
                 II.   The Reasonable Doubt Instruction

¶ 10   Melara contends that the trial court reversibly erred in the

  second trial by giving the 2022 version of the Colorado Model Jury

  Instruction (COLJI) defining reasonable doubt, which did not

  expressly refer to the jury’s ability to base its verdict on the lack of

  evidence in the case.

                           A.    Additional Facts

¶ 11   In 2021, when Melara’s first trial took place, the COLJI model

  instruction for reasonable doubt read as follows:

             Reasonable doubt means a doubt based upon
             reason and common sense which arises from a
             fair and rational consideration of all of the
             evidence, or the lack of evidence, in the case. It
             is a doubt which is not a vague, speculative or
             imaginary doubt, but such a doubt as would
             cause reasonable people to hesitate to act in
             matters of importance to themselves.

  COLJI-Crim. E:03 (2021) (emphasis added).

¶ 12   In 2022, after Melara’s original trial, the Model Criminal Jury

  Instructions Committee (committee) revised the model instruction

  for reasonable doubt. In addition to modifying the reasonable

  doubt instruction, the committee also combined that instruction




                                      4
  and the presumption of innocence into a single model instruction.

  See COLJI-Crim. E:03 (2022).

¶ 13   The instruction that the trial court gave at the second trial

  tracked the new model instruction, reading as follows:

            Every person charged with a crime is
            presumed innocent. This presumption of
            innocence remains with [Melara] throughout
            the trial and should be given effect by you
            unless, after considering all the evidence, you
            are convinced that [Melara] is guilty beyond a
            reasonable doubt.

            The burden of proof in this case is upon the
            prosecution. The prosecution must prove to
            the satisfaction of the jury beyond a
            reasonable doubt the existence of each and
            every element necessary to constitute the
            crime charged. This burden requires more
            than proof that something is highly probable,
            but it does not require proof with absolute
            certainty.

            Proof beyond a reasonable doubt is proof that
            leaves you firmly convinced of [Melara’s] guilt.
            If you are firmly convinced of [Melara’s] guilt,
            then the prosecution has proven the crime
            charged beyond a reasonable doubt. But if
            you think there is a real possibility that
            [Melara] is not guilty, then the prosecution has
            failed to prove the crime charged beyond a
            reasonable doubt.

            After considering all the evidence, if you decide
            the prosecution has proven each of the
            elements of a crime charged beyond a


                                    5
             reasonable doubt, you should find [Melara]
             guilty of that crime.

             After considering all the evidence, if you decide
             the prosecution has failed to prove any one or
             more of the elements of a crime charged
             beyond a reasonable doubt, you should find
             [Melara] not guilty of that crime.

  

¶ 14    In its comments to the 2022 amendment, the committee

  explained that it modified the longstanding reasonable doubt

  instruction for three reasons: (1) to eliminate negative phrasing; (2)

  to remove the “hesitate to act” language in the previous instruction

  because it was unhelpful; and (3) to provide additional context. 

  at cmt. 1. The committee did not provide any specific explanation

  for its removal of the “lack of evidence” language. See 

 at cmt. 3.

¶ 15    In 2023, the committee again revised E:03, this time by adding

  the following sentence at the end of the first paragraph: “A

  reasonable doubt can be based on the evidence presented or the

  lack of evidence presented.” COLJI-Crim. E:03 (2023). Its

  comments to that edition state simply that, “[i]n 2023, the

  [c]ommittee added the final sentence to the instruction’s first

  paragraph regarding evidence or lack of evidence.” 

 at cmt. 8.



                                     6
  The committee provided no rationale for the additional sentence.

  See 

              B.    Standard of Review and Applicable Law

¶ 16   A trial court must accurately instruct the jury concerning the

  controlling law. Riley v. People, 

 (Colo. 2011).

  We review de novo a trial court’s jury instructions, as a whole, to

  determine whether the court met this obligation. 

 If the trial

  court’s instructions accurately describe the applicable law, we

  review the court’s decision whether to give a particular jury

  instruction for an abuse of discretion. People v. Paglione, 

. A trial court abuses its discretion if its decision is

  manifestly arbitrary, unreasonable, or unfair, or if it misconstrues

  or misapplies the law. People v. Vigil, 

, ¶ 19.

¶ 17   But these general principles are nuanced in the context of

  defining the prosecution’s burden of proof on a criminal charge. A

  defendant is presumed innocent of any charges filed against him.

  “The presumption of innocence, although not articulated in the

  Constitution, is a basic component of a fair trial under our system

  of criminal justice.” Perez v. People, 

 (quoting

  Estelle v. Williams, 

 (1976)). This bedrock


                                     7
  principle of our jurisprudence is given life and vitality through the

  prosecution’s obligation to “prove every factual element necessary to

  constitute the crime charged beyond a reasonable doubt.” Johnson

  v. People, 

 (citation omitted). This requirement

  “‘dates at least from our early years as a Nation’ and is nothing

  short of ‘indispensable.’” 

 (quoting In re Winship, 

 (1970)).

¶ 18   The trial court is obligated to instruct the jury that the

  defendant’s guilt must be proved beyond a reasonable doubt. 

  However, the “Constitution does not require that any particular

  form of words be used” in advising the jury of the government’s

  burden of proof. 

 (quoting Victor v. Nebraska, 

  (1994)). These principles limit a trial court’s discretion when

  crafting a burden of proof instruction.

¶ 19   A trial court’s exercise of that discretion must be done with

  caution to ensure that the instruction does not inadvertently lower

  the prosecution’s burden. See, e.g., Tibbels v. People, 

 (reversing a defendant’s conviction because the trial court

  impermissibly lowered the burden of proof by analogizing

  reasonable doubt to the decision whether to buy a home with a


                                     8
  cracked foundation). As our appellate courts have repeatedly

  cautioned, “further attempts by courts or parties to define

  ‘reasonable doubt’ do not provide clarity.” Johnson, ¶ 13; see also

  Holland v. United States, 

 (1954) (“Attempts to

  explain the term ‘reasonable doubt’ do not usually result in making

  it any clearer to the minds of the jury.” (quoting Miles v. United

  States, 

 (1880))).

¶ 20   An instruction that lowers the prosecution’s burden below

  reasonable doubt constitutes structural error and requires reversal.

  Tibbels, ¶ 60. To assess whether the trial court lowered the

  reasonable doubt burden, we evaluate the “likelihood the jury

  applied the instructions in an unconstitutional manner.” People v.

  Garcia, 

, aff’d, 

. We look at the

  instruction holistically and “view it in the context of the record as a

  whole.” 

¶ 21   The model instructions are intended to be “helpful templates

  when drafting instructions.” COLJI-Crim. ch. A, term definitions

  (2024). But they are not definitive statements of the law or binding

  on courts. Krueger v. Ary, 

 (Colo. 2009). Thus,

  using a model instruction does not provide trial courts with “a safe


                                     9
  harbor that insulates instructional error from reversal.” Garcia v.

  People, 

.

                      C.   The Parties’ Contentions

¶ 22   Melara argues that using the 2022 COLJI reasonable doubt

  instruction violated his due process rights because the absence of

  language informing the jurors that they could consider a lack of

  evidence impermissibly lowered the prosecution’s burden of proof.

  See Johnson, ¶ 9 (“We must determine whether the trial court’s

  [extraneous] ‘hesitate to act’ instruction lowered the prosecution’s

  burden of proof in violation of due process.”). He argues that failing

  to inform the jury that reasonable doubt may arise from the lack of

  evidence in a case undermines the presumption of innocence. As

  evidence of the material impact of the omission, Melara notes that

  the jury in the first trial — which received the reasonable doubt

  instruction informing it that it could consider the lack of evidence in

  the case — did not convict him. In contrast, when this language

  was not included in the instruction given to the jury in the second

  trial, it returned guilty verdicts on the same charges. This

  inconsistency, he argues, demonstrates that the omission of the




                                    10
  “lack of evidence” language lowered the burden of proof and led to

  his conviction in violation of his due process rights.

¶ 23   The People reason that the burden of proof instruction given at

  his second trial accurately stated the law and did not lower the

  prosecution’s burden. The People also note that several

  jurisdictions across the nation have long used a burden of proof

  instruction that does not expressly state that the jury may consider

  the absence of evidence in the case, and that courts in those

  jurisdictions have repeatedly upheld such instructions. See, e.g.,

  United States v. Rogers, 

 (8th Cir. 1996) (“The

  additional language, in any event, says nothing that is not already

  obvious to people of common sense. That a lack of evidence may

  cause one to have a reasonable doubt is self-evident.”); Rault v.

  Louisiana, 

 (5th Cir. 1985) (“Nothing in the

  charge suggested that a reasonable doubt could not arise from the

  lack of evidence.”); State v. Wienke, 

 (The trial

  court did not err by rejecting a reasonable doubt instruction

  tendered by the defense that included the “lack of evidence”

  language.). Consistent with these authorities, the People argue that

  it is not necessary to instruct jurors that they are allowed to


                                    11
  consider the lack of evidence in a case because jurors will apply

  their common sense to consider a lack of evidence when

  determining whether the prosecution proved an offense beyond a

  reasonable doubt. Rogers, 

.

                            D.   Application

¶ 24   Notwithstanding the noted authorities from other jurisdictions,

  we conclude that a trial court should inform the jury, as part of the

  reasonable doubt instruction, that it may consider the lack of

  evidence in the case. But we also conclude that the omission of the

  phrase did not impermissibly lower the prosecution’s burden of

  proof in this case.

¶ 25   As a starting point, we are aware of no case from our appellate

  courts suggesting that the phrase “lack of evidence in the case” is

  confusing, inaccurate, or unhelpful to a jury. To the contrary, we

  have many appellate opinions supporting the conclusion that a jury

  may consider the lack of evidence in a case when assessing whether

  the prosecution has met its burden. See, e.g., People v. Vanrees,

  

 (Colo. 2005) (approving instruction that allowed

  the jury to consider the evidence or lack of evidence presented in

  the case); People v. Rubio, 

 (Colo. App. 2009)


                                   12
  (“The instruction that reasonable doubt can arise not just from the

  evidence but also from ‘lack of evidence’ strengthens rather than

  undercuts the presumption of innocence.”).

¶ 26   Thus, the committee’s 2022 elimination of that phrase seems

  to have been a solution in search of a problem (or an oversight), and

  it runs contrary to the supreme court’s repeated cautions against

  unnecessary modification of the reasonable doubt instruction. See

  Johnson, ¶ 13; Tibbels, ¶ 25.

¶ 27   Moreover, the committee did not provide any explanation or

  rationale for its removal of the “lack of evidence” phrase from the

  2022 model instruction. Likewise, the committee did not provide

  any rationale for its decision to add that language back into the

  2023 model instruction. In the absence of a contrary explanation,

  it seems the added sentence is at least an implicit acknowledgment

  that there was no need to remove the phrase from the 2022 model

  instruction or benefit associated with the removal.

¶ 28   In any event, the model instruction now includes both “the

  evidence presented” and “the lack of evidence” within the

  reasonable doubt instruction. COLJI-Crim. E:03 (2024). As

  previously noted, substantially similar language had been included


                                    13
  in the pre-2022 definition of reasonable doubt for decades,

  without — to our knowledge — criticism from our appellate courts

  or legal scholars. Moreover, this language reflects an objective and

  balanced explanation that the jury may consider both the evidence

  presented and the lack of evidence when assessing whether a

  reasonable doubt exists. It also provides a defendant with an

  express legal foundation to encourage the jury to look at the

  absence of evidence in considering whether reasonable doubt exists.

  Thus, going forward (and absent contrary direction from the

  supreme court), we conclude that trial courts should include a

  statement within the reasonable doubt instruction that the jury

  may consider the lack of evidence in a case when determining

  whether the prosecution has met its burden. So while

  acknowledging that the trial court did not have the benefit of case

  law directly on point, we conclude that the court should have

  included the “lack of evidence” language in its reasonable doubt

  instruction.

¶ 29   But that does not answer the ultimate question before us: Was

  the trial court’s omission of this language structural error? To

  answer this question, we must determine whether the omission


                                   14
  lowered the prosecution’s burden of proof when viewing the court’s

  instructions as a whole along with the trial court record:

            [I]n considering whether a court’s statements
            to a jury regarding the meaning of “reasonable
            doubt” (whether in formal instructions or not)
            unconstitutionally lowered the prosecution’s
            burden of proof, an appellate court must ask
            whether there is a reasonable likelihood that
            the jury understood the court’s statements, in
            the context of the instructions as a whole and
            the trial record, to allow a conviction based on
            a standard lower than beyond a reasonable
            doubt.

  Tibbels, ¶ 43.

¶ 30   The 2022 model instruction did not expressly tell jurors how

  to evaluate the evidence or lack thereof. Rather, it required them to

  ensure that there is not “a real possibility that the defendant is not

  guilty” of “the crime beyond a reasonable doubt.” COLJI-Crim. E:03

  (2022). That is an accurate statement of the law. Moreover, the

  instruction emphasized that, to find Melara guilty beyond a

  reasonable doubt, the jury must be “firmly convinced of [Melara’s]

  guilt,” and that even proof that something is “highly probable” is not

  sufficient to satisfy the reasonable doubt burden. 

¶ 31   Furthermore, we agree with the People that the instruction did

  not forbid or even dissuade the jurors from applying their common


                                    15
  sense when considering the evidence in this case, including issues

  or requirements that the evidence failed to address.

¶ 32   Because we have no basis to believe that the jury acted in an

  unconstitutional way, and because we conclude that the absence of

  an express instruction to consider the lack of evidence is not

  tantamount to a prohibition on doing so, we reject Melara’s claim

  that the trial court denied his due process rights or otherwise

  reversibly erred by failing to include the “lack of evidence” language

  in its reasonable doubt instruction.

                      III.    Withdrawal of Plea Offer

¶ 33   Melara next contends that the trial court erred by denying his

  motion to compel the prosecution to leave open for acceptance a

  plea offer predicated on a community-based sentence after he made

  a counteroffer. We disagree.

                             A.   Additional Facts

¶ 34   In January 2023, three months before the second trial was set

  to begin, the prosecutor, a deputy district attorney, emailed

  Melara’s counsel to see if Melara was open to accepting a guilty

  plea. In early February, defense counsel informed the deputy

  district attorney that she had spoken with Melara “and he does not


                                      16
  want to plead. So we are proceeding to trial.” The deputy

  responded, “To be clear, he is not willing to take anything even if it

  involved a community-based sentence?” Melara’s counsel replied, “I

  did not pose a probation only sentence to him as an option because

  you said you would not stip[ulate] to that. But if there’s a probation

  stip[ulation] that would be a pretty different conversation.”

¶ 35   The same day, the deputy indicated that they were still having

  internal conversations but asked defense counsel to “let us know if

  he will consider a community-based sentence.” A week later,

  Melara’s counsel responded,

             Can you offer [class 5 felony] attempt[ed]
             [Sexual Assault of a Child] with a stip[ulation]
             to probation? As you recall the split was
             heavily in our favor last time. Mr. Melara is
             older and I think if prison is on the table
             there’s no way he’ll take a deal and would
             rather push this to trial. But if we can make
             an agreement to probation there’s a chance at
             closing this out.

¶ 36   The prosecution responded with a formal offer on February 15:

             We are willing to extend the following
             community-based offer:

             1. Plea to [class 3 felony] Sexual Exploitation

             2. Plea to [class 4 felony] 2nd Degree Assault
             (non-sex) naming both victims


                                    17
            3. Stipulation to 10-years of [Sex Offender
            Intensive Supervision Probation (SOISP)] for
            the [class 3 felony] Sexual Exploitation [with]
            the additional special probation conditions

            4. Concurrent probation for the [class 4 felony]
            2nd Degree Assault

            5. [Sex Offender] Registration, MROG
            [Mandatory Restraining Order Granted], no
            contact with anyone under 18. . . .

  Defense counsel responded, “Received, but I can all but guarantee

  he’s not going to take this.” In response to the prosecutor’s request

  for an explanation, Melara’s counsel responded,

            It is community based, but it’s also a[] [class 3
            felony] and [a class 4 felony]. I just think
            based on prior conversations he’s unlikely to
            take it based on the level of offenses, plus 10
            year SOISP. He is super reticent to accept any
            plea that is a sex offense plea, and I think all
            of that will play into his decision. I will
            convey.

¶ 37   In a series of subsequent emails, counsel engaged in the

  following exchange:

            [Prosecutor]: To be clear, are you saying that
            he will accept 5-years of SOISP with pleas to
            the [class 3 felony] and [class 4 felony]?

            [Defense Counsel]: Well, I guess I can’t say for
            sure at this point. He maintains his
            innocence, so anything that can be done to
            sweeten the deal makes it more likely.


                                   18
             He does not like the sexual exploitation charge
             at all. I would counter with [a class 4 felony]
             contributing to the delinquency of a minor – as
             a sex offense and 2nd degree assault/
             stip[ulation] 5 years SOISP.

             [Prosecutor]: If that is a firm counte[r]-offer
             that he will accept, we will discuss it with the
             victims.

             [Defense Counsel]: Ok, I can let you know
             Monday if it’s something he will definitely take.

¶ 38   Four days later, Melara’s counsel replied, “This is something

  [Melara] will take. So if you’re able to offer contributing to the

  delinquency of a minor (sexual factual basis) [and] 2nd degree

  assault [and] stip[ulate to] 5 years SOISP, then he’ll take it.” Two

  days later, the prosecutor responded, “We are not willing to accept

  this counteroffer. We plan to proceed to trial on March 13th.”

¶ 39   In subsequent emails to the deputy district attorney and her

  supervisors, Melara’s counsel expressed frustration that the

  prosecution withdrew the February 15 offer. She argued that

  Melara was proceeding on the assumption that the negotiations

  were ongoing and that the February 15 offer had never been

  formally withdrawn and therefore the prosecution had an obligation

  to leave the offer open while the negotiations continued.



                                     19
¶ 40   Despite these concerns, before the second trial began, Melara’s

  counsel did not request entry of an order specifically enforcing the

  February 15 offer or otherwise addressing the plea negotiations.

  Only after the trial was completed, guilty verdicts were returned,

  and a sentencing hearing was set did Melara’s counsel file a motion

  to specifically enforce the February 15 offer. The trial court

  summarily denied the motion.

              B.   Standard of Review and Applicable Law

¶ 41   We draw on contract principles to determine whether a plea

  offer is enforceable through the remedy of specific performance.

  Keller v. People, 

 (Colo. 2000) (“[P]lea agreements

  are contractual in nature and should be interpreted in accordance

  with contract principles.”). Like a contract, the terms of a plea

  agreement are “interpreted in light of the reasonable expectations of

  the parties. In making such a determination, the court may

  consider the form and content of any written agreement containing

  the government’s promise . . . .” People v. Mershon, 

 (Colo. App. 1992), aff’d in part and rev’d in part on other

  grounds, 

 (Colo. 1994), abrogated on other grounds by

  Melton v. People, 

.


                                    20
¶ 42   “A defendant is entitled to specific performance of a plea

  agreement when ‘no other remedy is appropriate to effectuate the

  accused’s legitimate expectation engendered by the governmental

  promise.’” People v. Macrander, 

 (Colo. 1988)

  (quoting People v. Fisher, 

 (Colo. 1983)). In

  assessing the terms of a plea offer, our task is to construe the offer

  consistently with the parties’ intent and a defendant’s right to be

  treated fairly by the government. Mershon, 

 (“A

  promise by the government cannot be withdrawn if the defendant

  has reasonably and detrimentally relied thereon.”).

¶ 43   Like any contract, a plea offer must be accepted within a

  reasonable time, unless a specific time for acceptance is delineated

  in the offer. See Scoular Co. v. Denney, 

 (Colo.

  App. 2006). But if a defendant rejects an offer, he has no right to

  insist on its performance. Likewise, if a defendant makes a

  counteroffer, the prior offer is typically deemed rejected as a matter

  of law. See Baldwin v. Peters, Writer & Christensen, 

 (Colo. 1960) (“[A] counteroffer . . . operate[s] as a rejection of

  the original offer.”) (citation omitted).




                                      21
                             C.    Application

¶ 44   For several reasons, we reject Melara’s contention that the

  trial court erred by denying his motion to specifically enforce the

  alleged contract.

¶ 45   First, Melara rejected the February 15 offer. The email

  communications between counsel indicate that Melara was

  unwilling to accept the People’s offer to plead guilty to a class 3

  felony and a class 4 felony in exchange for a community-based

  sentence. In immediate response to that offer, Melara’s counsel

  indicated that “I can all but guarantee he’s not going to take this.”

  She later followed up with the prosecutor, stating, “He does not like

  the sexual exploitation charge at all. I would counter with [class 4

  felony] contributing to the delinquency of a minor — as a sex

  offense and 2nd degree assault/ stip[ulation to] 5 years SOISP.”

¶ 46   The first sentence of this email, coupled with the preceding

  communications from Melara’s counsel, confirmed Melara’s

  rejection of the prosecutor’s offer. The second sentence drove the

  point home by offering to plead to one class 4 felony and a

  misdemeanor (rather than to separate class 3 and class 4 felonies)

  with a stipulated sentence of five years SOISP (as opposed to ten


                                     22
  years SOISP). Both as a matter of law and as an interpretation of

  the parties’ expressed intent, we conclude that the submission of

  this counteroffer — which decreased the high level of offense and

  materially varied the proposed sentence term — amounted to a

  rejection of the February 15 offer.

¶ 47   We also disagree with Melara’s contention that it would be

  fundamentally unfair to treat the February 15 offer as rejected

  because it is allegedly common practice for defendants to attempt to

  negotiate a better deal without rejecting an existing offer. To begin,

  this contention is without record support, and beyond that, Melara

  points to no legal authority that reflects such a rule. Moreover,

  Melara’s reasoning would be fundamentally unfair to the

  prosecution. In effect, the prosecution would be forced to negotiate

  against itself if a defendant were allowed to make counteroffers

  while still being able to fall back on accepting the previous

  unaccepted offer if the prosecution rejected the counteroffer.

¶ 48   The faults in Melara’s argument are illustrated by the facts of

  this case. Not only did Melara fail to accept the February 15 offer,

  but he also failed to ask the court to specifically enforce it. He then

  proceeded to trial. Only after he was convicted did he request


                                    23
  specific performance from the court. One can imagine that Melara

  would not have insisted on specific performance if he had prevailed

  at trial, or that he would have acquiesced in the enforcement of the

  February 15 offer had the jury returned not guilty verdicts. In

  effect, Melara demands a unilateral right to enforce the February 15

  offer after the results of the trial became known. It strains credulity

  to suggest that the court should afford a defendant the right to

  submit a counteroffer rejecting the prosecution’s offer, proceed to

  trial, and then enforce the prosecution’s last offer after the jury

  returns guilty verdicts.

¶ 49   For these reasons, we conclude that the trial court did not err

  by denying Melara’s motion for specific performance of the

  February 15 offer.

                          IV.   Expert Testimony

¶ 50   Melara argues that the trial court erred by limiting the scope

  of his expert witness’s testimony in a manner that excluded some

  opinions that the same expert was allowed to offer in connection

  with the first trial. The People counter that the trial court properly

  limited the expert’s testimony to align with the scope of the

  endorsement at the second trial, which was more restricted than


                                     24
  the endorsement made in advance of the first trial, and correctly

  excluded improper opinion testimony at the second trial.

                          A.   Additional Facts

¶ 51   In both the first and second trials, the defense endorsed

  Dr. William O’Donohue to testify. In advance of the first trial, a

  motions hearing was held, at which O’Donohue was offered and

  qualified as an expert in “child abuse, child sexual assault, forensic

  interviewing, evaluation of forensic interviews, and areas of

  competency as it relates to child competency.” In advance of the

  second trial, Melara endorsed O’Donohue as an expert in child

  psychology, forensic interviewing, and child competency.

¶ 52   At the second trial, the defense offered O’Donohue as an

  expert in child sexual abuse generally, and more specifically, “how

  children remember abuse, common psychological reactions to

  abuse, behavior of child sexual abusers, and forensic interviewing

  with children who may have been sexually abused.” The prosecutor

  objected on the grounds that the proffer was beyond the endorsed

  areas of expertise in Melara’s disclosure.

¶ 53   The court sustained the objection and accepted O’Donohue as

  an expert only in the areas of child psychology and forensic


                                    25
  interviewing. Subsequently, Melara’s counsel asked O’Donohue

  about pathways to false disclosure by children. The prosecutor

  objected and the court sustained the objection as beyond the scope

  of expertise for which O’Donohue had been accepted as an expert,

  and on the grounds that the testimony was unduly prejudicial, and

  that such prejudice substantially outweighed the probative value of

  the testimony.

¶ 54   The court allowed O’Donohue to testify concerning appropriate

  forensic interview practices and child sexual assault disclosures.

  He also testified specifically about the quality of the interviews

  investigators conducted with granddaughter, including how to judge

  the credibility of a child’s disclosures. But the court did not permit

  O’Donohue to testify concerning potential pathways to false

  disclosures by children, such as tensions in the family. The court

  also precluded O’Donohue from testifying about the possibility of

  gradual disclosures by children who may be coached and typical

  child victim behavior after abuse.

¶ 55   On appeal, Melara argues that the trial court unduly focused

  on the specific content of the Crim. P. 16 disclosure and improperly

  limited O’Donohue’s testimony that was arguably outside such


                                     26
  disclosure. Melara also contends that the court erroneously

  prevented O’Donohue from testifying about “factors that can lead to

  false reports, child disclosures of sexual abuse, and common

  presentations of victims after sexual abuse.”

¶ 56   The People respond by arguing that the trial court properly

  executed its role as a gatekeeper for the expert testimony by

  preventing O’Donohue from improperly undermining

  granddaughter’s testimony and addressing irrelevant matters.

              B.   Standard of Review and Applicable Law

¶ 57   We review a trial court’s rulings on the admissibility of expert

  testimony for an abuse of discretion. People v. Collins, 

.

¶ 58   The parties disagree on the appropriate standard of reversal.

  Melara argues that his presentation of O’Donohue’s testimony was

  so restricted that he was deprived of his constitutional right to

  defend against the charges. See, e.g., People v. Pronovost, 

 (Colo. 1989). Thus, he argues, we should apply a

  constitutional harmless error standard. See Golob v. People, 

 (Colo. 2008) (“Because a criminal defendant has

  the right to call witnesses in his defense, abridgment of that right is


                                    27
  subject to a constitutional harmless error analysis.”). Under this

  standard, “we reverse if ‘there is a reasonable possibility that the

  [error] might have contributed to the conviction.’” Hagos v. People,

  

 (quoting Chapman v. California, 

  (1967)).

¶ 59   The People counter that the court’s rulings did not give rise to

  a constitutional violation, and therefore we should apply

  nonconstitutional harmless error. We reverse for nonconstitutional

  harmless error only “if the error ‘substantially influenced the verdict

  or affected the fairness of the trial proceedings.’” 

 at ¶ 12

  (quoting Tevlin v. People, 

 (Colo. 1986)).

                             C.    Application

¶ 60   Initially, we reject Melara’s argument that the trial court’s

  rulings concerning the scope of O’Donohue’s permitted testimony at

  the first trial (or the preceding motions hearing) became the law of

  the case that was binding at the subsequent trial. Melara points to

  no legal authority supporting that argument, and we are aware of

  none. Indeed, the law of the case doctrine, as applied by a trial

  court to its own prior rulings, is discretionary. See People v.

  Vialpando, 

 (Colo. App. 1997) (“Law of the case,


                                     28
  when applied to a court’s power to reconsider its own prior rulings,

  is a discretionary rule of practice because it merely expresses the

  practice of courts generally to refuse to reopen what has been

  decided.” (citing People ex rel. Gallagher v. Dist. Ct., 

 (Colo. 1983))).

¶ 61   Second, we note that there are significant distinctions between

  the facts in the cases cited by Melara and the facts of this case. For

  example, Melara relies heavily on the supreme court’s decision in

  Pronovost, 

. But Pronovost is factually and legally

  distinguishable because the trial court there made a pretrial ruling

  completely prohibiting the defendant from calling an expert who

  was not endorsed until the Friday before a Monday trial. 

 at 556-

  57. Similarly, in People v. Melendez, 

 (Colo.

  2004), the supreme court reversed a trial court order that precluded

  the defendant from calling a fact witness who violated a

  sequestration order.

¶ 62   Here, in contrast, the trial court did not wholly preclude

  O’Donohue’s testimony. Rather, the court limited or precluded

  certain lines of questioning. Even then, O’Donohue was provided

  the opportunity to opine on the characteristics of an appropriate


                                     29
  versus a coached or suggestive interview, which allowed the jurors

  the benefit of his expertise in evaluating the trustworthiness of

  granddaughter’s disclosures to a forensic interviewer. We now turn

  to Melara’s remaining arguments regarding O’Donohue.

                           1.   Scope of Disclosures

¶ 63   We agree with Melara that the trial court erred by resting its

  analysis on the incomplete nature of O’Donohue’s endorsement.

  Crim. P. 16(II)(b)(1) provides that, “[s]ubject to constitutional

  limitations, the trial court may require that the prosecuting

  attorney be informed of and permitted to inspect and copy or

  photograph any reports or statements of experts.” The rule goes on

  to provide as follows:

             Subject to constitutional limitations, and
             where the interests of justice would be served,
             the court may order the defense to disclose the
             underlying facts or data supporting the
             opinion in that particular case of an expert
             endorsed as a witness. If a report has not
             been prepared by that expert to aid in
             compliance with other discovery obligations of
             this rule, the court may order the party calling
             that expert to provide a written summary of
             the testimony describing the witness’s
             opinions and the bases and reasons
             therefor . . . . The intent of this section is to
             allow the prosecution sufficient meaningful



                                      30
              information to conduct effective cross-
              examination . . . .

  Crim. P. 16(II)(b)(2).

¶ 64   During the first trial, the prosecutor heard many of the

  opinions that O’Donohue was not allowed to provide at the second

  trial. Moreover, Melara provided the prosecution with a lengthy

  report that set forth at least some of O’Donohue’s anticipated

  opinions.

¶ 65   Under these circumstances, we conclude that the trial court

  erred by limiting O’Donohue’s testimony to “child psychology and

  forensic interviewing” without first conducting a prejudice analysis.

  Cf. Pronovost, 

 (trial court erred by excluding,

  without first conducting a balancing test, testimony from

  defendant’s expert based on the failure to timely endorse the

  expert).

¶ 66   But the perceived Rule 16 violation was not the only basis of

  the trial court’s rulings. Rather, the trial court also determined that

  the excluded lines of questioning were improper and the associated

  prejudice outweighed the probative value of the testimony. That




                                    31
  renders harmless any error in relying on the incomplete

  endorsement to limit the testimony. See Hagos, ¶ 12.

                     2.   Pathways to False Reports

¶ 67   Melara argues that “[t]he most important area about which

  O’Donohue was prohibited from testifying was regarding pathways

  and factors that can lead to false reports.” But during his direct

  examination by Melara’s counsel, O’Donohue opined, “Most

  allegations of sexual abuse are true, but not all, and it’s important

  to keep an open mind to see if any of those pathways to a false

  accusation are operative, such as the child had a prior suggestive

  interview contact, and this is a false memory due to that.” The

  subsequent exchange that triggered the objection follows:

            [Defense Counsel]: Dr. O’Donohue, you had
            mentioned pathways to false disclosure. Can
            you talk to me a little bit about what that
            means?

            [O’Donohue]: Yes. It means what sort of
            variables can cause a child to make a false
            report.

            [Defense Counsel]: And what types of variables
            do you see?

¶ 68   At this point the prosecutor objected and the court held a

  bench conference. After hearing from both sides, the court ruled


                                    32
  that the testimony was veering into specific circumstances that

  could be construed as commenting on granddaughter’s credibility.

  See Venalonzo v. People, 

 (“[The defendant] argues

  that the trial court erred in permitting the investigating police

  officer to testify that, in his experience as a school teacher, children

  only make up trivial stories, not serious accusations. Normally,

  this statement would constitute improper testimony that the

  children were telling the truth.”) (footnote omitted).

¶ 69   The trial court noted that it was proper for an expert to opine

  generally on the possibility that children sometimes fabricate

  reports of abuse. But the court also noted that both O’Donohue

  and the People’s expert had already opined that children sometimes

  falsely report abuse allegations. Getting into the specific

  circumstances that lead to such false reports, the court reasoned,

  was improper and prejudicial to the People. See CRE 403

  (“Although relevant, evidence may be excluded if its probative value

  is substantially outweighed by the danger of unfair prejudice,

  confusion of the issues, or misleading the jury, or by considerations

  of undue delay, waste of time, or needless presentation of

  cumulative evidence.”).


                                     33
¶ 70   We acknowledge that the boundaries between general

  testimony about false reports and improper undermining by

  drawing direct lines between specific circumstances and false

  reports can sometimes be difficult. That boundary blurs when an

  expert purports to act as both a general expert addressing broad

  principles and also as a case-specific expert opining on the

  application of those general principles to the specific facts of a case.

  That is the dual role O’Donohue played in this case, which created

  the concerns noted by the division in People v. Battigalli-Ansell,

  

.

             The line between opinion testimony that
             improperly bolsters a witness’s credibility and
             admissible testimony that may only collaterally
             enhance the witness’s credibility is sometimes
             a difficult one to draw. See People v. Fortson,
             

, ¶¶ 105, 107, 114, 116, 

 (Berger, J., specially
             concurring). But when an “expert assumes the
             role of not only educating the jury on general
             [witness] characteristics but also opines that
             the particular [witness’s] conduct is in
             conformity with those characteristics, the
             expert probably crosses the line.” Id. at ¶ 114,
             

.

  Id. at ¶ 50.




                                     34
¶ 71   We agree that reasonable judges can differ on whether expert

  testimony has crossed that line. But that is why we entrust these

  judgment calls to the trial court’s sound discretion; that court is

  optimally positioned to make those decisions based on its personal

  observations of the evidence in the case. Given this deference, we

  cannot say the trial court erred by excluding this evidence under

  CRE 403.

                        3.   Stages of Disclosure

¶ 72   Next, Melara objects to the trial court’s exclusion of

  O’Donohue’s anticipated testimony about “stages of disclosure.”

  But the trial court did not prevent O’Donohue from offering all

  opinions on this topic. In fact, on cross-examination the prosecutor

  examined O’Donohue on stages of disclosure. During his redirect

  examination, Melara’s counsel thoroughly examined O’Donohue on

  his views of stages of disclosure, including the following testimony:

             [O’Donohue]: [A] forensic interview, all the
             protocols that I know, are designed to be a
             single interview, not multiple interviews, to
             track some alleged process of disclosure —
             stage of disclosures. So all the protocols are —
             are designed to be a single interview which
             captures the child’s complete statement. And
             the reason why they design it to be one
             interview, not four interviews, is because


                                    35
               experience in the field generally is they can get
               a full statement in the first interview.

               [Defense Counsel]: And so if there’s new or
               additional disclosures later down the line, can
               that be in part because there wasn’t a
               complete forensic interview?

               [O’Donohue]: Yes.

¶ 73   The prosecutor objected after Melara’s counsel next asked,

  “Are those new or additional disclosures at greater risk for outside

  contamination?” The court sustained the objection “based on the

  facts presented in this case.” Melara’s counsel did not make a

  further record or ask for an explanation of the court’s ruling.

¶ 74   Melara’s argument is based only on the contention that his

  attorney was not allowed to question about “outside

  contamination.” But during his direct examination, O’Donohue

  spoke extensively about outside contamination, including the

  following:

               [O]utside contamination is the idea that prior
               to the forensic interview, the child has spoken
               to other adults about these alleged events.
               And it is possible that in those conversations,
               leading questions, suggestive questioning
               could have occurred that led to false
               memories.




                                      36
¶ 75   Moreover, Melara does not further develop his claim about

  how the risk of contamination with additional disclosures related to

  the facts of this case, other than a conclusory suggestion that

  daughter coached or otherwise colored granddaughter’s testimony.

¶ 76   Expert testimony was not necessary to enable the jury to

  consider the possibility that daughter — who also accused Melara of

  sexual assault — could have influenced granddaughter’s testimony.

  See People v. Cooper, 

 (The relevance of expert

  testimony depends on “a common sense inquiry: whether an

  untrained lay person would be qualified to determine a particular

  issue ‘intelligently and to the best possible degree without

  enlightenment from those having a specialized understanding of the

  subject involved in the dispute.’” (quoting Lanari v. People, 

 (Colo. 1992))); accord CRE 702. In fact, during opening

  statements and closing argument, defense counsel argued that

  daughter suggested or otherwise unduly influenced

  granddaughter’s accusations against Melara. Moreover, in closing,

  defense counsel argued that he was able to obtain testimony from

  the People’s expert witness that “repeated questioning by an

  untrained person can be problematic.”


                                    37
                         4.    Victim’s Behavior

¶ 77   Lastly, Melara challenges the trial court’s exclusion of

  O’Donohue’s anticipated testimony about how children who are

  victims of sexual assault often behave. Defense counsel sought to

  elicit this testimony during the following exchange:

            [Defense Counsel]: Psychologically, how would
            you expect the child to respond to the pain of
            sexual penetration or sexual intrusion?

            [O’Donohue]: They’re very disturbed by it, that
            they don’t like it, that they want it to stop, that
            they don’t want it to occur again, that it’s
            scary to them . . . . So it’s quite disturbing to
            a child.

            [Defense Counsel]: Is that something that even
            a child at around the age of four or five can
            describe?

            [O’Donohue]: In my experience, yes.

            [Defense Counsel]: Do you see that pain
            affect[s] how they behave with other people as
            well?

            [Prosecutor]: Objection. Relevance.

            [The Court]: Sustained.

            ....

            [Defense Counsel]: In your experience, does
            the child typically fear the person who causes
            them pain?



                                    38
             [Prosecutor]: Objection. Relevance.

             [The Court]: Overruled. You may answer that
             question.

             [O’Donohue]: Yes.

             [Defense Counsel]: How does the fear of that
             person affect the child’s behavior?

             [O’Donohue]: They want to avoid the person.
             They want to not get into a situation where
             this pain could occur again. They’ll have
             different views of the person. They’ll trust the
             person less. They’ll want to be with them less.
             They’ll be confused about why this person
             caused them pain. They’ll be upset with the
             person.

             [Defense Counsel]: Will that also affect how the
             child might interact with other people?

             [Prosecutor]: Objection. Relevance.

             [The Court]: Sustained. Again, we’re back to
             the forensic interviewing and/or child
             psychology only. And without a specific piece
             of information, it would be not relevant to the
             facts of this case.

¶ 78   Given the extensive testimony preceding this question, we do

  not perceive any abuse of discretion in the trial court’s ruling to

  limit speculative testimony about how this experience may have

  impacted granddaughter’s interactions with people other than

  Melara.



                                    39
¶ 79   Therefore, we conclude that the trial court did not reversibly

  err by limiting O’Donohue’s testimony.

                           V.    Trial Severance

¶ 80   As discussed above, at the first trial, Melara’s counsel moved

  to sever the charges involving daughter from the charges involving

  granddaughter. The court denied that motion and the charges were

  tried together. Melara concedes that his attorney did not file a

  motion to sever after the first trial ended in a mistrial.

¶ 81   On appeal, Melara contends that at the second trial — which

  was presided over by a different judge than the first — the court

  erred by not severing the charges involving the different victims.

  The People argue that because the motion to sever was not renewed

  before the second trial, the issue was either waived or forfeited.

  Given the procedural context of this case, we conclude that, even if

  Melara did not waive review of the severance issue at the second

  trial, the trial court did not err by failing to sua sponte sever the

  charges.

¶ 82   Waiver is “the intentional relinquishment of a known right or

  privilege.” People v. Rediger, 

 (quoting Dep’t of

  Health v. Donahue, 

 (Colo. 1984)). In contrast,


                                     40
  forfeiture is the failure to timely assert a right. Forgette v. People,

  

. “The distinction between a waiver and a forfeiture

  is significant because ‘a waiver extinguishes error, and therefore

  appellate review, but a forfeiture does not.’” 

 at ¶ 30 (quoting

  Rediger, ¶ 40).

¶ 83   Generally, objections made during a case that resulted in a

  mistrial do not preserve objections at a subsequent retrial. See,

  e.g., United States v. Palmer, 

 (5th Cir. 1997)

  (denying a motion to sever as unpreserved when the motion was

  made before the first trial, but not renewed prior to the second trial,

  because “objections made at [an] aborted trial have no bearing on

  the retrial, as the two are entirely separate affairs”). This general

  rule is particularly apt when, as here, the second trial is held before

  a different judge than the one who presided at the first trial. See

  United States v. Mann, 

 (1st Cir. 1978) (“[A] rule

  that one objection preserves an issue during any retrials would

  make the domain of a trial judge more of a mine field than ever.”).

¶ 84   Moreover, the absence of a renewed objection is particularly

  problematic in this case, given that obvious strategic factors could

  have impacted the decision whether to ask for a severance before


                                     41
  the second trial. At the first trial, Melara avoided a conviction.

  Indeed, on one charge the jury was deadlocked ten to two in favor of

  acquittal but deadlocked eight to four in favor of conviction on the

  other charge. Viewing this outcome, Melara may well have made a

  strategic decision that he would benefit from trying the charges

  together so that the weakness of the evidence supporting one

  charge would adversely affect the jury’s perception of the other.

¶ 85   On the other hand, the supreme court has made clear that a

  defendant who files a pretrial motion to sever charges need not

  renew that motion at trial to preserve the severance issue for

  appeal. See Bondsteel v. People, 

. There is,

  however, a significant distinction between the procedural setting of

  Melara’s case and the setting of the Bondsteel case. Bondsteel

  involved a single trial. But Melara’s conviction arose out of two

  separate trials, with the first ending in a hung jury and resulting

  mistrial. Melara moved to sever before the first case but not before

  the second case. Thus, Bondsteel is not directly on point.

¶ 86   Given the dynamics of the hung jury in the first case, there is

  certainly a reasonable inference that Melara made a strategic

  decision not to renew a motion to sever. Such strategic decisions


                                    42
  may, in appropriate circumstances, give rise to a conclusion that

  the claimed error is waived. See Richardson v. People, 

,

  ¶ 26 n.2 (finding waiver based, in part, on fact that “counsel could

  have had sound strategic reasons” for decision not to exercise a

  peremptory challenge against a juror). But the supreme court has

  also counseled that we must indulge every reasonable presumption

  against waiver. Rediger, ¶ 39.

¶ 87   Balancing these considerations, we conclude that Melara

  forfeited, rather than waived, his argument that the trial court erred

  by not severing the charges involving the two victims at the second

  trial. See id. at ¶ 40 (forfeiture is the failure to timely assert a

  known right). But because severance was not mandated, and there

  were rational explanations why Melara may not have wanted the

  charges at the second trial severed, we perceive no error, much less

  plain error, associated with the trial court’s decision not to sua

  sponte order severance of the charges at the second trial. See

  Hagos, ¶ 14 (an error is plain only if it is obvious and substantial);

  Vialpando, 

 (The trial court did not err by declining

  to order severance of charges in a second trial because “the original

  reason for severing the charges was no longer present, and


                                      43
  defendant ha[d] not demonstrated prejudice as a result of the trial

  court’s refusal to sever the escape charge at his second trial.”).

                            VI.    Child Hearsay

¶ 88    Melara raises two claims of error related to the admission of

  multiple instances of child hearsay during the trial. First, he

  argues that the trial court reversibly erred by admitting

  granddaughter’s initial disclosure and subsequent conversations

  with daughter in the fall of 2020, as well as the November 2020

  video of granddaughter’s forensic interview. Second, Melara

  contends that the court reversibly erred by departing from the

  COLJI child hearsay instruction. We address each contention

  below.

       A.   Admission of Granddaughter’s Out-of-Court Statements

                           1.     Additional Facts

¶ 89    Before the second trial, the prosecution filed a notice of its

  intent to introduce child hearsay statements. Shortly thereafter,

  Melara’s attorney filed a motion challenging granddaughter’s

  competency to testify under section 13-25-129, C.R.S. 2024. But

  that motion also acknowledged section 13-90-106, C.R.S. 2024,

  which allows a child sexual assault victim under age ten to testify


                                      44
  “when the child is able to describe or relate in language appropriate

  for a child of that age the events or facts respecting which the child

  is examined.” § 13-90-106(1)(b)(II). Granddaughter was between

  four and five years old in 2020, when she made the disputed

  statements, and about seven years old when Melara’s counsel filed

  the competency motion.

¶ 90   The trial court set the prosecution’s notice for a pretrial

  hearing to consider whether granddaughter would be permitted to

  testify in accordance with the requirements of section 13-90-

  106(1)(b)(II). The court stated that at the same hearing it would

  also “determine whether [granddaughter]’s out-of-court statements

  bear a sufficient indicia of reliability, per . . . [section] 13-25-129.”

  Thus, the court denied Melara’s request for a separate competency

  hearing because it would be unnecessarily burdensome on

  granddaughter to endure a separate hearing.

¶ 91   The court heard testimony at the hearing from daughter,

  granddaughter, the forensic interviewer, and O’Donohue. The trial

  court found that granddaughter “described in age-appropriate

  terms what it means to tell the truth and lie and that she

  understood the consequences of lying.” The court also noted that


                                      45
  she described Melara’s house in a reasonable way for a seven-year-

  old and that despite being “a little bit squirmy,” she was reasonably

  focused.

¶ 92     Applying the factors articulated in People v. District Court, 

 (Colo. 1989), the court concluded that

  granddaughter’s hearsay statements to daughter and the forensic

  interviewer were sufficiently reliable to be admissible. The court

  based its ruling on the following findings:

       • daughter testified credibly about granddaughter’s September

         2020 statements;

       • even though granddaughter’s statements about the abuse

         were not spontaneous and were prompted by daughter, the

         questions were not suggestive because daughter routinely

         asked the children whether they had been inappropriately

         touched;

       • daughter was not trying to elicit a specific response from

         granddaughter when granddaughter made the statements;

       • granddaughter did not make the statements when she was in

         pain, and she used language that would have been used by a

         child around her age;

                                      46
       • the allegation against Melara was not made in response to a

         leading question; and

       • granddaughter had no bias against Melara or motive to lie.

¶ 93     With respect to granddaughter’s November 2020 statements

  during the forensic interview, the trial court made similar findings

  about the content of granddaughter’s statements and her demeanor

  during the interview.

                2.   Standard of Review and Applicable Law

¶ 94     A trial court’s decision to admit a child’s hearsay statements is

  reviewed for an abuse of discretion. People v. Rojas, 

 (Colo. App. 2008).

¶ 95     Hearsay statements are out-of-court statements, offered at

  trial, to prove the truth of the matter asserted. CRE 801(c); People

  v. Phillips, 

. Such statements are inadmissible

  in a criminal prosecution unless an exception applies. CRE 802.

¶ 96     The admissibility of child hearsay depends on the assessment

  of the statement’s reliability made after a pretrial hearing. § 13-25-

  129(1), (5). The prosecution must prove by a preponderance of the

  evidence that the statement is admissible. People v. Bowers, 

 (Colo. 1990).


                                     47
¶ 97   In District Court, 

, the supreme court

  articulated eight factors that courts may consider in evaluating the

  reliability of a child’s hearsay statements:

       (1)   whether the statement was made spontaneously;

       (2)   whether the statement was made while the child was still

             upset or in pain from the alleged abuse;

       (3)   whether the language of the statement was likely to have

             been used by a child the age of the declarant;

       (4)   whether the allegation was made in response to a leading

             question;

       (5)   whether either the child or the hearsay witness had any

             bias against the defendant or any motive for lying;

       (6)   whether any other event occurred between the time of the

             abuse and the time of the statement that could account

             for the contents of the statement;

       (7)   whether more than one person heard the statement; and

       (8)   the general character of the child.

                             3.   Application

¶ 98   Melara argues that he was severely prejudiced by the

  admission of daughter’s hearsay, particularly given the limitations


                                     48
  the trial court placed on the cross-examination of O’Donohue about

  pathways and factors that can lead to false reporting.

¶ 99    The People respond that the court made proper findings

  regarding granddaughter’s competence and the reliability of the

  statements, and therefore the court properly exercised its discretion

  by admitting the statements. We agree with the People.

¶ 100   The record supports the trial court’s finding that the hearsay

  statements were sufficiently reliable to be admitted. § 13-25-129(5).

  The court applied the correct legal standards and made detailed

  factual findings when applying those factors and arriving at its

  ruling. See Dist. Ct., 

.

¶ 101   The court also appropriately considered whether

  granddaughter understood the difference between the truth and a

  lie. When asked, granddaughter was forthcoming when she did not

  understand a question. She was candid about not remembering

  specific details about Melara’s house or the 2020 interview.

  Granddaughter also admitted to lying in the past, and that she

  understood the importance of telling the truth in court.

¶ 102   Furthermore, because granddaughter and daughter were

  available to testify and were cross-examined, Melara’s counsel could


                                    49
  — and did — raise at trial these concerns about the credibility of

  the hearsay statements.

¶ 103   Despite the trial court’s detailed findings, Melara argues that

  the court did not adequately defer to O’Donohue’s expert opinions

  concerning the alleged defects in the methodology used by the

  interviewer. Specifically, O’Donohue testified that the interviewer

  engaged in repetitive and leading questions and did not eliminate

  the possibility that threats or bribes may have colored

  granddaughter’s testimony. It is true that the interviewer asked

  targeted and focused questions, but the questions were not leading

  because they did not suggest a particular answer. And the

  interviewer allowed granddaughter to fully answer, asked her

  clarifying questions, and did not coerce her into providing a

  particular response.

¶ 104   The trial court was free to give O’Donohue’s opinions the

  weight it deemed appropriate in light of all the evidence. See People

  v. Rivera, 

 (Colo. App. 2002) (The fact finder

  “retains its authority to determine the facts from the evidence and

  accept or reject” expert opinion testimony.). After considering

  O’Donohue’s testimony, the trial court found that the content and


                                    50
  circumstances of granddaughter’s statements to the interviewer

  provided “sufficient safeguards of reliability” and that the

  interviewer did not engage in “leading, suggestive or otherwise

  inappropriate questioning.”

¶ 105   These findings are supported by the record. We therefore

  reject Melara’s argument that the trial court abused its discretion

  by admitting granddaughter’s out-of-court statements.

                        B.   The Jury Instruction

¶ 106   Section 13-25-129(6) provides that, when child hearsay is

  admitted, the court shall instruct the jury that

             during the proceeding the jury heard evidence
             repeating a child’s out-of-court statement and
             that it is for the jury to determine the weight
             and credit to be given the statement and that,
             in making the determination, the jury shall
             consider the age and maturity of the child, the
             nature of the statement, the circumstances
             under which the statement was made, and any
             other relevant factor.

  (Emphasis added.)

¶ 107   The court instructed the jury as follows:

             In this case you heard evidence of out of court
             statements made by granddaughter. . . . [I]t is
             for you to determine the weight and credit to
             be given any such statements. In making this
             determination you should consider the age and


                                    51
             maturity of the child, the nature of the
             statements, the circumstances under which
             the statements were made, and any other
             evidence that has been admitted that you
             choose to consider for this purpose.

¶ 108   Melara contends that the instruction contained three errors

  because it (1) omitted the word “repeating”; (2) omitted the word

  “allegedly”; and (3) allowed the jury to consider “any other evidence

  that has been admitted” rather than “any other relevant factor.”

                         1.    Standard of Review

¶ 109   As discussed, supra Part II.B, we review de novo a trial court’s

  jury instructions, as a whole, to determine whether they properly

  instructed the jury on the controlling law. Riley, 

.

  If the trial court’s instructions accurately described the applicable

  law, we generally review its decision to give a particular instruction

  for an abuse of discretion. Paglione, ¶ 45.

                              2.   Application

¶ 110   Melara’s first contends that the instruction did not follow

  section 13-26-129(6) because the instruction did not expressly tell

  the jury that it heard “evidence repeating a child’s out-of-court

  statement.” As a result, Melara argues, the court implicitly

  instructed the jury “that the statements speak for themselves.”


                                    52
  Melara does not develop the argument further, and we are

  unpersuaded by this conclusory assertion of error.

¶ 111   As best we understand Melara’s second contention, he argues

  that the word “allegedly” should have been included in the

  instruction, as suggested by the COLJI instruction when the

  hearsay statement has not been otherwise admitted via video

  recording. COLJI-Crim. D:12 cmt. 4 (2022). But the jury viewed

  the video recording of granddaughter’s interview. We acknowledge

  that the jury also received evidence of granddaughter’s parallel

  hearsay statements to daughter, but Melara does not explain, and

  we do not perceive, how he was prejudiced by the omission of the

  word “allegedly” with respect to the similar statements made to

  daughter.

¶ 112   Finally, Melara argues that the court erred by instructing the

  jury that it may consider “any other evidence that has been

  admitted” rather than “any other relevant factor.” He argues this

  allowed the jury to consider irrelevant factors about

  granddaughter’s credibility, such as Melara’s alleged conduct

  toward daughter. But, as Melara recognizes, the jury was

  instructed to consider the charges against each victim separately,


                                    53
  uninfluenced by its verdict on other charges. We presume the jury

  followed that instruction. People v. Snelling, 

, ¶ 42

  (“We presume that juries follow a court’s instructions absent

  evidence to the contrary.”). Moreover, presumably the evidence

  admitted by the trial court was relevant to the issues presented in

  this case. Therefore, by limiting the jury’s consideration to other

  admissible evidence, the court limited the jury’s consideration to

  relevant evidence.

¶ 113   The trial court did not abuse its discretion by giving the child

  hearsay instruction.

                          VII. Cumulative Error

¶ 114   Finally, Melara contends that the cumulative effect of the

  asserted errors warrants reversal. “For reversal to occur based on

  cumulative error, a reviewing court must identify multiple errors

  that collectively prejudice the substantial rights of the defendant,

  even if any single error does not.” Howard-Walker v. People, 

. Even though we have concluded that the trial court

  should have included the “lack of evidence” language in the

  reasonable doubt instruction and erred by relying on the incomplete

  nature of O’Donohue’s endorsement to limit the scope of his


                                     54
  testimony, the omission and error did not have a synergistic or

  compounding effect and did not substantially prejudice Melara. See

  People v. Serna-Lopez, 

, ¶ 47 (“The doctrine of

  cumulative error is based on the notion that multiple errors, in

  isolation, may be viewed as harmless, but the synergistic effect of

  the multiple errors may be so prejudicial that they deprive a

  defendant of a fair trial.”). Thus, we reject his cumulative error

  claim.

                             VIII. Disposition

¶ 115   The judgment of conviction is affirmed.

        JUDGE KUHN concurs.

        JUDGE WELLING specially concurs.




                                    55
        JUDGE WELLING, specially concurring.

¶ 116   I am fully on board with the disposition and rationale of the

  majority. I write separately because I would go one small step

  further with respect to the reasonable doubt instruction: I would

  conclude that the denial of Melara’s request to include the “or lack

  of evidence” language in the reasonable doubt instruction was error,

  albeit harmless error.

¶ 117   I agree with the principles guiding our review as set forth by

  the majority. That is, “[w]e review jury instructions de novo to

  determine whether they accurately inform the jury of the governing

  law,” Hoggard v. People, 

, and “[a]s long as the

  instruction properly informs the jury of the law, a trial court has

  broad discretion to determine the form and style of jury

  instructions,” McDonald v. People, 

, ¶ 54 (quoting Day v.

  Johnson, 

 (Colo. 2011)). Accordingly, we

  review a trial court’s decision to give or not give a particular

  instruction for an abuse of discretion. 

¶ 118   To be sure, abuse of discretion is a highly deferential

  standard. 

 (“A trial court’s ruling on jury instructions is an



                                     56
  abuse of discretion only when the ruling is manifestly arbitrary,

  unreasonable, or unfair.” (quoting Day, 

)). The

  touchstone of the abuse of discretion standard is “whether the trial

  court’s decision fell within a range of reasonable options.” People v.

  Salazar, 

 (Bender, C.J., dissenting) (quoting E-470

  Pub. Highway Auth. v. Revenig, 

 (Colo. App.

  2006)). Accordingly, our inquiry isn’t whether we agree with the

  trial court’s decision, 

 (citing Streu v. City of Colorado Springs,

  

 (Colo. 2010)); instead, “our role is simply to

  review the trial court’s decision to ensure that it did not ‘exceed[]

  the bounds of the rationally available choices,’” 

 (quoting Streu,

  

).

¶ 119   Here, I would conclude that the trial court’s denial of Melara’s

  request to include the “or lack of evidence” language, though

  understandable based on the then-recent change to the model

  instruction, nevertheless lacked a rational basis. I reach this

  conclusion because I can’t find a rationale for refusing defense

  counsel’s request that survives scrutiny. As the majority points

  out, there are a host of solid reasons for including the requested

  language: it’s an accurate statement of the law, supra ¶ 25; it


                                      57
  clarifies a principle that, at times, is difficult for jurors to grasp,

  supra ¶ 28; People v. Young, 

, 825 & n.3 (Colo. 2001)

  (“It is not unusual for a juror to be confused or uncertain about the

  presumption of innocence because it is a difficult legal concept.”); it

  has been included in the model reasonable doubt instruction in

  Colorado for decades, supra ¶ 28; and there is no indication that

  the requested language has been confusing, misleading, or

  otherwise unhelpful to jurors, supra ¶¶ 25, 28.

¶ 120   On the other side of the balance, as best I can divine, there are

  two potential rationales for declining to include the requested

  language: (1) it had been omitted from the then-recently modified

  model instruction, and (2) the principle was already adequately

  covered by other instructions. I am not persuaded that either

  rationale provides a valid reason for denying the request.

¶ 121   With respect to the first reason, it’s certainly understandable

  why the court was inclined to faithfully cleave to the language in the

  model instruction. See Galvan v. People, 

 (“The

  model instructions . . . have been approved in principle by [the

  supreme] court and serve as beacon lights to guide trial courts.”).

  But following the model instructions doesn’t insulate a trial court’s


                                      58
decision from appellate scrutiny. See, e.g., Garcia v. People, 

 (following the model instruction doesn’t provide trial

courts with “a safe harbor that insulates instructional error from

reversal”). This, in my view, is one of those exceptionally rare

circumstances where tracking the model instruction alone isn’t

enough to save the court’s decision even under an abuse of

discretion standard. Cf. id. at ¶ 23 (holding that tracking model

instruction isn’t always enough to avoid even plain error); Auman v.

People, 

 (Colo. 2005) (concluding that the

felony-murder instruction that the court gave was erroneous

notwithstanding the fact that it tracked the model instruction in

effect at the time). This is particularly so where the change had yet

to be tested on appellate review and the omission of the requested

language lacked any clear rationale. Indeed, as observed by the

majority, although other changes in the reasonable doubt

instruction were explained in the comment, there is no explanation

for the omission of the requested language. Supra ¶¶ 25-27. Thus,

as a standalone rationale, I would conclude that relying on the

requested language’s omission from the model instruction doesn’t

survive scrutiny.


                                  59
¶ 122   An alternative rationale for declining to include the requested

  language is that it’s duplicative of other concepts already

  adequately covered in the instructions that the court gave. This is a

  closer call. After all, a trial court “need not give a supplemental

  instruction if it is already encompassed in another instruction.”

  People v. Oram, 

 (Colo. App. 2009), aff’d, 

 (Colo. 2011). But nowhere in the instructions is the

  importance of “lack of evidence” as clearly stated as it would have

  been with the inclusion of the requested language. So I would

  conclude that this doesn’t provide a basis for declining to include

  the language upon a party’s request.

¶ 123   I know this conclusion is in tension with the rationale

  undergirding the conclusion that the omission of the language

  doesn’t constitute structural error. To put a sharper point on it,

  one might say the requested language is either adequately covered

  by another instruction so it’s not an abuse of discretion to omit it or

  it’s not adequately covered so its omission is structural error. I’m

  not persuaded that this is a binary choice. I think the concept is

  sufficiently covered by the instructions as a whole that the omission

  of the language doesn’t lower the burden of proof, but I still


                                    60
  conclude that there is no rational basis to declining a request to

  include it. I’d walk that tightrope.

¶ 124   For all of these reasons, I would conclude that the trial court’s

  refusal to include “or lack of evidence” language upon request was

  an abuse of discretion and, therefore, erroneous. This conclusion

  means that I would also have to consider whether this error was

  harmless. See McDonald, ¶ 55 (“Where an error exists and ‘a

  defendant . . . object[s] to an instruction, a harmless error standard

  applies.’” (quoting People v. Garcia, 

 (Colo. 2001))).

  That is where I turn next.

¶ 125   “Under a harmless error standard, reversal is required unless

  the error does not affect substantial rights of the defendant.” 

  (quoting Garcia, 

). The substantial right implicated

  by the refusal to include this language upon request is that its

  omission would lower the prosecution’s burden of proof. But as

  noted at the outset of this special concurrence, I agree with the

  entirety of the majority’s rationale, including that the omission of

  the requested language doesn’t constitute structural error. See

  supra ¶¶ 24-32. For the same reason the majority here and the

  division in People v. Schlehuber, 

, 21-


                                     61
  25,conclude that the omission of the language didn’t lower the

  prosecution’s burden of proof, I would conclude that the erroneous

  omission of the requested language was harmless.

¶ 126   Finally, I would note that, as a practical matter, I don’t think

  my preferred resolution of the question before us encourages trial

  courts to do anything different than what the majority and the

  division in Schlehuber suggest. As I read the opinions, all five of the

  judges who have signed on to those opinions are sending the same,

  strong message: It’s better practice for trial courts to include the “or

  lack of evidence” language in the reasonable doubt instruction. See

  supra ¶¶ 24, 28; Schlehuber, ¶¶ 20, 25. And just a few months

  after the trial in this case, the Model Criminal Jury Instructions

  Committee sent the same message when it further amended the

  reasonable doubt instruction to again include the previously

  omitted language. I would send the same message, just on the

  added basis that failure to include this language upon a party’s

  request is error.




                                     62