Peo v. Watson

23CA1968 Peo v Watson 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 23CA1968 El Paso County District Court No. 11CR2145 Honorable Monica Jo Gomez, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Dean Porter Watson, Defendant-Appellant. ORDER AFFIRMED Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Ainsley E. Baum, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Dean Porter Watson, appeals the postconviction court’s order denying his Crim. P. 35(c) motion alleging ineffective assistance of counsel. We affirm. I. Background ¶2 In 2015, a jury found Watson guilty of sexual assault on a child by one in a position of trust, sexual assault on a child, two crime of violence counts, and two lesser non-included counts of misdemeanor child abuse. ¶3 According to the prosecution’s evidence, Watson sexually assaulted the four-year-old daughter of his step-grandson, B.W., while Watson and his ex-wife, S.W., were babysitting the victim. When B.W. returned, he found Watson in the victim’s room, kneeling on the floor next to her bed. In response to B.W.’s question about what he was doing, Watson said that he was rubbing the victim’s back to help her sleep. B.W. was skeptical and later asked the victim what Watson had been doing in her room. The victim told B.W., “He was rubbing my butt and playing with my little hole.” ¶4 While being examined by a Sexual Assault Nurse Examiner (SANE), the victim told the nurse that Watson had put his finger in 1  her “little hole” and that it hurt. In addition, during a subsequent forensic interview, the victim repeated that Watson had rubbed her butt with his hand and that it hurt. ¶5 During trial, the court admitted a letter Watson had written to B.W. following his arrest in which he confessed to (1) being “guilty as accused”; (2) having engaged in light touching with his hand that lasted “about 60 to 90 seconds”; and (3) still being a pedophile. In addition, Watson testified that he wrote the letter because he intended to kill himself, didn’t want B.W. to blame himself, and “wanted to say what I did do, and that’s exactly what I put into the letter. Light touching for about 60 to 90 seconds, and that was the absolute God’s truth.” ¶6 A division of this court affirmed Watson’s convictions. See People v. Watson, (Colo. App. No. 15CA1518, Dec. 14, 2017) (not published pursuant to C.A.R. 35(e)). ¶7 Watson timely filed a pro se Crim. P. 35(c) postconviction motion. In the motion, Watson raised several claims of ineffective assistance of trial counsel, among other claims. Appointed postconviction counsel later supplemented Watson’s pro se motion. The postconviction motions asserted that trial counsel had provided 2  ineffective assistance by failing to: (1) object to the prosecution’s generic tailoring questions during Watson’s cross-examination; (2) object to a statement by the victim and a cross-examination question to Watson about Watson having spent time in jail, or request a curative instruction for the jail references; (3) object to the cumulative presentation of Watson’s confession letters; (4) obtain the SANE report reflecting a lack of Watson’s DNA; (5) effectively cross-examine S.W. as to her opportunity to witness or not witness a crime; (6) object to the prosecution’s cross-examination of Watson involving the “still a pedophile” evidence; (7) utilize the notes taken when doing the closing argument and dress professionally; (8) object to a compound question; and (9) object to B.W.’s testimony that they “finally found him,” which referenced Watson’s flight that the trial court had previously ruled was inadmissible. Watson also asserted that his appellate counsel was ineffective for failing to provide Waston with copies of the transcripts and that the cumulative effect of counsel’s errors warrants reversal of his conviction. ¶8 After receiving a response from the People, the court held a hearing on the motions at which Watson presented only one witness 3  — an expert criminal defense attorney. The expert testified that defense attorneys are required to make necessary objections during trial, there was no reasonable reason for counsel’s failure to object, and, by failing to make those objections identified in Watson’s postconviction motions, trial counsel’s advocacy did not conform to prevailing norms of defense practice. The expert also testified that there was a reasonable probability that trial counsel’s combined failures to object undermined Watson’s credibility and led to Watson’s conviction. ¶9 The postconviction court denied Watson’s motion in a written order addressing each of the claims as follows: • The postconviction court found two instances of deficient performance based on counsel’s failure to (1) object to the prosecution’s generic tailoring argument and (2) references to Watson having been in jail. However, with respect to both of those claims, the court found that, given the overwhelming evidence of guilt, there was not a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 4  • Regarding Watson’s claim concerning counsel’s failure to object to the “finally found him” statement by B.W., the court found that, contrary to Watson’s assertion, the statement was not necessarily a reference to Watson’s flight because it was subject to multiple interpretations. Therefore, the court concluded that counsel’s performance was not deficient for failing to object to the statement and, in any event, there was no prejudice. • As for the cumulative error claim, the court found that the cumulative impact of counsel’s failure to object to the generic tailoring questions and statements about Watson being in jail, when weighed against the overwhelming evidence of Watson’s guilt, did not create a reasonable probability that, but for the errors, the result of the trial would have been different. • For the remaining claims, the court found that counsel’s performance was neither deficient nor prejudicial. II. Applicable Law and Standard of Review ¶ 10 To establish an ineffective assistance of counsel claim, a defendant must show that (1) his counsel’s performance was 5  deficient — meaning certain acts or omissions of counsel were outside the wide range of professionally competent assistance, and (2) the deficient performance prejudiced his defense — meaning there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). A reasonable probability in this context is a probability sufficient to undermine confidence in the outcome of the proceeding. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). ¶ 11 Judicial review of counsel’s performance must be highly deferential, evaluate particular acts and omissions from counsel’s perspective at the time, and indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. Thus, to establish deficient performance, a defendant must overcome the presumption that, under the circumstances, the challenged action might have been sound trial strategy. Strickland, 466 U.S. at 689. ¶ 12 Courts may deny an ineffective assistance claim if the defendant fails to prove either deficient performance or prejudice. Ardolino, 69 P.3d at 77; see also People v. Garcia, 815 P.2d 937, 6  941 (Colo. 1991) (if a defendant fails to make an affirmative demonstration of prejudice, the court may resolve the ineffective assistance claim on that basis alone without addressing whether counsel’s performance was deficient). ¶ 13 Each prong of the ineffective assistance analysis presents a question of mixed law and fact. Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). We defer to the district court’s factual findings as long as the record supports them, but we review the court’s legal conclusions de novo. Id. ¶ 14 The postconviction court determines the weight and credibility to give witness testimony at a Crim. P. 35(c) hearing. People v. Hardin, 2016 COA 175, ¶ 39. Accordingly, “[w]here the evidence in the record supports the findings and holding of the postconviction court that presided over an evidentiary hearing, the judgment will not be disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27. III. Discussion ¶ 15 Watson contends that the postconviction court erred by denying (1) his ineffective assistance of counsel claims focused on his counsel’s failure to object to the prosecution’s generic tailoring questions and B.W.’s “they finally found him” statement; and (2) his 7  cumulative error claim. As discussed below, we are not persuaded that the postconviction court erred by denying those claims. ¶ 16 We deem abandoned the other claims Watson raised in his postconviction motions and which the postconviction court addressed in its order1, because he does not reassert them on appeal. See People v. Brooks, 250 P.3d 771, 772 (Colo. App. 2010) (any claim raised in a postconviction motion but not reasserted on appeal is abandoned). A. Generic Tailoring Claim ¶ 17 Watson first argues that the postconviction court erred by concluding that counsel’s failure to object to the prosecution’s generic tailoring questions during Watson’s cross-examination was not prejudicial. We are not persuaded. 1 The specific claims not re-raised on appeal include (1) trial counsel’s failure to (a) object to statements about Watson having spent time in jail or request a curative instruction for the jail references; (b) object to the cumulative presentation of the confession letters; (c) obtain the SANE report; (d) effectively cross- examine S.W.; (e) object to the “still a pedophile” questioning; (f) utilize the “notes taken” when presenting closing argument and dress professionally; and (g) object to a compound question; and (2) appellate counsel’s failure to provide him transcripts. 8  1. Additional Background ¶ 18 As relevant here, Watson argued in his direct appeal that the prosecution committed misconduct by engaging in generic tailoring while cross-examining him when it repeatedly drew the jury’s attention to his presence throughout the trial and asked him if he had an opportunity to tailor his testimony. Watson, slip op. at ¶ 28. The division agreed with Watson that the prosecution’s questions constituted impermissible generic tailoring. However, applying plain error review because defense counsel had not objected to those questions, the division concluded that reversal was not required. The division held that the error, although obvious, was not substantial because of the overwhelming evidence of Watson’s guilt. Id. at ¶¶ 40-41. 2. Analysis ¶ 19 Watson argues on appeal that the postconviction court improperly adopted the division’s plain error analysis when concluding that the prosecution’s generic tailoring did not prejudice him under the second prong of Strickland. We are not persuaded that the postconviction court erred by denying this claim. 9 ¶ 20 Initially, the People argue that we do not need to reach the prejudice prong of this ineffective assistance of counsel claim because, contrary to the court’s determination, there was no evidence to support the conclusion that counsel’s performance was deficient. Specifically, they argue that because counsel may have strategically chosen not to object to the prosecution’s cross- examination questions of Watson so as not to draw undue attention to them and Watson failed to present testimony from trial counsel at the hearing to explain why she did not object, there was insufficient evidence to conclude that counsel’s failure to object was not a strategic decision that, under Strickland, is entitled to deference. While we agree that counsel’s failure to object could have been a strategic decision, we need not address whether counsel’s performance was deficient because we conclude that the postconviction court properly determined that Watson failed to establish prejudice in any event. See Garcia, 815 P.2d at 941. ¶ 21 Watson’s assertion that the postconviction court erroneously relied on the Watson division’s plain error determination to find that he had not established prejudice for this ineffective assistance of counsel claim mischaracterizes the postconviction court’s finding. 10  Watson correctly points out that the division’s conclusion that the generic tailoring error did not constitute plain error does not control the determination of whether Watson was prejudiced by that error. See Hagos v. People, 2012 CO 63, ¶ 16 (“[A] determination that the error did not constitute plain error does not control the determination of whether a defendant can establish Strickland prejudice.”). However, here, although the postconviction court acknowledged the division’s conclusion that Watson had not established plain error, see Watson, slip op. at ¶ 41, the postconviction court did not rely on that determination to conclude there was no prejudice from counsel’s deficient performance. Rather, the postconviction court independently addressed the Strickland prejudice prong and stated that it “[did] not find, given the overwhelming evidence of Defendant’s guilt, that Defendant has demonstrated prejudice for purposes of Strickland, nor is there a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ¶ 22 We conclude that the evidence supports the postconviction court’s finding that Watson failed to establish prejudice with respect to this claim. The evidence at trial, which included a letter from 11  Watson confessing to committing the offense and referring to himself as a pedophile, Watson’s testimony admitting to touching the victim, and the victim’s multiple statements describing what Watson did to her, overwhelmingly established Watson’s guilt. Thus, we cannot say that, but for counsel’s failure to object to the generic tailoring questions, there is a reasonable probability that the result of the proceeding would have been different. See Ardolino, 69 P.3d at 76. Consequently, because Watson failed to establish prejudice, the postconviction court did not err by denying this claim. B. Evidence of Flight ¶ 23 Watson next contends that the postconviction court erred by concluding that counsel’s failure to object to B.W.’s reference to Watson having been “finally found” was not deficient performance. We disagree. 1. Additional Background ¶ 24 Here, although the initial arrest warrant for Watson was issued in June 2011, Watson resided in another state and did not appear in court on these charges until 2014. Before the trial, the court ruled that evidence of Watson’s possible flight was 12  inadmissible because it was unclear whether Watson was aware of the arrest warrant. ¶ 25 During B.W.’s trial testimony, the prosecution asked him what he told the victim about the trial. In response, B.W. said that the only thing he told her was that “they had finally found him and . . . now we were going to go to trial,” and then explained to her the trial process. ¶ 26 Watson argued in his postconviction motion that trial counsel was ineffective for failing to object to B.W.’s statement that “they had finally found him” because that phrase implied that Watson had evaded arrest and could be construed as evidence of his guilty conscience. In addressing that claim, the postconviction court found that the statement could have multiple meanings and was not necessarily evidence that Watson purposefully evaded arrest. Therefore, the court found that counsel’s failure to object to that testimony did not satisfy either the deficient performance or prejudice prongs of Strickland. 2. Analysis ¶ 27 We perceive no error in the postconviction court’s determination that Watson failed to establish either deficient 13  performance or prejudice with regard to counsel’s failure to object to the B.W.’s statement. ¶ 28 We agree with the postconviction court that the phrase “they had finally found him” is subject to multiple meanings and does not necessarily tell the jury that Watson had been evading arrest or demonstrate his consciousness of guilt. Further, the statement was mentioned only once in the context of B.W.’s testimony about how he explained the trial to the victim, and was never referenced again. Thus, counsel’s failure to object could have been a strategic decision designed not to draw the jury’s attention to that statement. And, because Watson did not present testimony from trial counsel about her reason for not objecting, Watson failed to overcome the presumption that counsel’s inaction was a strategic decision entitled to deference. See Strickland, 466 U.S. at 689. ¶ 29 Moreover, even if counsel’s failure to object to this testimony constituted deficient performance, we nevertheless conclude that, given the overwhelming evidence of guilt and the brevity of the challenged statement, there was not a reasonable probability the result of the proceeding would have been different had counsel objected to that statement. See Ardolino, 69 P.3d at 76. 14  C. Cumulative Error ¶ 30 Finally, Watson contends that the postconviction court erred by rejecting his claim that he was cumulatively prejudiced by trial counsel’s multiple instances of deficient performance. Specifically, he argues that the cumulative effect of trial counsel’s three instances of deficient performance — that is, counsel’s failure to object to generic tailoring questions, testimony that he was finally found, and statements about Watson being in jail (a claim not independently reasserted in this appeal) — so impaired his credibility that there is a reasonable probability that the result of the proceeding would have been different had counsel not committed those errors. ¶ 31 Initially, it is not clear that the cumulative error doctrine applies to ineffective assistance of counsel claims. See People v. Rivas, 77 P.3d 882, 893 (Colo. App. 2003) (“The cumulative error doctrine applies only if the trial court committed numerous errors . . . .”). But see People v. Gandiaga, 70 P.3d 523, 528-29 (Colo. App. 2002) (reviewing whether the cumulative impact of multiple attorney errors required reversal). 15 ¶ 32 Nevertheless, assuming without deciding that the cumulative error doctrine applies to ineffective assistance claims, we are not persuaded that relief is warranted here. ¶ 33 “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, 2019 CO 69, ¶ 25. In the context of an ineffective assistance claim, a cumulative error argument is more properly characterized as cumulative prejudice. See Dunlap, 173 P.3d at 1081; see also Howard-Walker, ¶ 25 (cumulative error involves cumulative prejudice). In other words, a defendant must establish that counsel’s performance fell below an objective standard of reasonableness in multiple ways and that, while none of the deficiencies were individually so prejudicial as to warrant reversal, the cumulative prejudice from those errors justifies relief. Dunlap, 173 P.3d at 1081. ¶ 34 The postconviction court found that there were three instances of deficient performance. Although, as discussed above, we’ve determined that Watson failed to establish that his trial counsel’s performance was deficient for failing to object to the “finally found 16  him” statement, even if we assume error on the part of his attorney for not objecting in each of those three situations, we conclude that the cumulative impact of those errors was neither so numerous nor so prejudicial as to have deprived Watson of a fair trial. See Gandiaga, 70 P.3d at 529. While we recognize that Watson’s credibility was important to his defense because he testified at the trial, Watson’s own confession letter, his admission on the stand, and the victim’s consistent statements outweigh the cumulative prejudice of those assumed errors such that there is not a reasonable probability the result would have been different in their absence. Accordingly, the postconviction court did not err by denying this cumulative error claim. IV. Disposition ¶ 35 The order is affirmed. JUDGE GROVE and JUDGE LUM concur. 17