Peo v. Lucero

24CA0466 Peo v Lucero 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA0466 Boulder County District Court No. 21CR1761 Honorable Dea M. Lindsey, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Demetrius Anthony Lucero, Defendant-Appellant. JUDGMENT AFFIRMED Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Andrew Sidley-MacKie, Alternate Defense Counsel, Fort Collins, Colorado, for Defendant-Appellant ¶1 Defendant, Demetrius Anthony Lucero, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault (penile penetration). We affirm. I. Background ¶2 A reasonable jury could have found the following facts based on the evidence presented at trial. ¶3 The victim, M.T., went to a karaoke bar and returned to her apartment complex with some friends around midnight. They noticed approximately fifteen younger-looking people hanging out at the pool. M.T. and her friend C.P. went to the pool at 1:21 a.m. At this point, there were ten to twelve people in the pool, including Lucero. M.T. testified that she moved to the hot tub and that Lucero attempted to drag her across the hot tub by grabbing her arms and placing her hand on his genitals over his swim trunks. M.T. said she ignored Lucero’s advances and pushed him to the side. M.T. also asked Lucero to stop touching her. Ignoring her, Lucero then touched her stomach and buttocks. When M.T. resisted, Lucero pulled her onto his lap, turned her face, and kissed her. Although M.T. tried to pull away, she eventually “gave in” to the kiss and testified that she was scared. M.T. believed that if she 1  allowed Lucero to kiss her, he would stop and go away. The kiss ended when M.T. said that she wanted to go home. ¶4 M.T. went back to her apartment to use the restroom and then returned to the pool area. While she was at the pool, Lucero followed one of her friends into her apartment. M.T. did not give Lucero permission to enter her apartment. ¶5 M.T. returned to her apartment around 3:00 a.m. C.P. and some of her other friends were there, but she did not see Lucero. When M.T. went to her bedroom, however, she noticed Lucero standing in the hallway by her bathroom. Lucero pushed M.T. against the wall and began kissing her. He then pushed M.T. into her bedroom, pushed her onto her bed, and locked the door behind him. M.T. repeatedly told Lucero no. Lucero got on top of M.T. and kissed her mouth and neck before digitally penetrating her vagina. M.T. again asked Lucero to stop. Lucero responded by asking M.T. if she wanted him to use his mouth. She told him no. Lucero performed oral sex on M.T. and then pinned M.T.’s hands above her head and penetrated her vagina with his penis. M.T. asked Lucero to stop and when he did not, she asked him to use a condom. Lucero then abruptly stopped and told M.T. that he had to leave. 2 ¶6 M.T. went to her bathroom, sat on the floor, and cried. A few minutes later, C.P. knocked on the bathroom door. After initially refusing to let her in, M.T. told her that she was scared and that someone had just taken advantage of her. M.T. then texted N.C., her boyfriend at the time. She wrote that something was wrong, she believed someone had taken advantage of her, she was sad because she did not want it, and she was not hurt. M.T. testified that her mind was blank, and she did not know what to do. ¶7 When N.C. arrived at M.T.’s apartment, he told her that she should call 911. M.T. then called 911, provided a statement to police, and went to the hospital for a sexual assault examination. M.T. later identified Lucero as the individual who assaulted her when a friend showed her his picture from social media. ¶8 The prosecution charged Lucero with three counts of sexual assault and one count each of first degree criminal trespass, unlawful sexual contact, and false imprisonment. The jury convicted Lucero of one count of sexual assault and acquitted him of the remaining counts. The trial court sentenced Lucero to an indeterminate term of ten years to life on sex offender intensive 3  supervised probation, with ninety days in jail as a condition of probation. ¶9 On appeal, Lucero contends that the trial court erred by (1) restricting his cross-examination of N.C. and not allowing him to show that N.C. and M.T. were in a monogamous relationship; (2) permitting the prosecution to introduce bad character evidence without complying with CRE 404(b); (3) ordering the defense to disclose a confidential investigative report to the prosecution; (4) allowing the prosecution to charge multiple counts of sexual assault for a single act; and (5) permitting prosecutorial misconduct. Lucero also asserts cumulative error. We affirm the judgment. II. Cross-Examination of N.C. ¶ 10 Lucero contends that the trial court violated his constitutional right to confrontation by restricting his cross-examination of N.C. and thereby preventing him from showing that N.C. and M.T. were in a monogamous relationship at the time of the incident. We disagree. 4  A. Additional Background Information ¶ 11 Before trial, Lucero moved to admit evidence of M.T.’s prior relationships with three men, including N.C., under section 18-3- 407, C.R.S. 2026, Colorado’s rape shield statute.1 He argued that evidence of M.T.’s committed, monogamous relationship with N.C. provided a motive for her to fabricate a claim of sexual assault against Lucero. He reasoned that if N.C. believed M.T.’s sexual encounter with Lucero was nonconsensual, the encounter would be less likely to jeopardize their relationship. ¶ 12 The prosecution did not object and acknowledged that M.T. was in a relationship with N.C. at the time of the incident and that the existence of that relationship was potentially relevant so long as Lucero was claiming that he had consensual sex with M.T. The prosecution argued that Lucero’s motion was sufficient “only to put the People on notice that [Lucero] intends to inquire into the existence of the relationship with [N.C.] as it relates to . . . [M.T.’s] motive to fabricate.” ______________________________________________________________________________ 1 Lucero does not challenge the trial court’s ruling regarding the evidence of M.T.’s relationship with the two other men, so we do not further discuss them. 5 ¶ 13 The trial court ruled that M.T. and N.C.’s romantic relationship at the time of the incident was relevant to the facts of the case, finding as follows: If a proper foundation is laid, not subject to sustainable objections, witnesses may be asked about whether [N.C.] and M.T. were involved in a romantic relationship at or near the time of the incident. Questions may be asked about what communication or contact M.T. had with [N.C.] shortly before, during, and shortly after the incident. Questions can be asked about what [N.C.] and M.T.[’s] actions were shortly before, during[,] and after the incident. Such information may be relevant to M.T.’s motivation for making her allegations in this case, as well as her state of mind at the time. However, detailed information of [N.C.]’s and M.T.’s past sexual relationship is not relevant to the issues that the jury needs to decide in this case and will not be admitted at trial. ¶ 14 At trial, defense counsel asked M.T. how she knew N.C. and she responded that he was her boyfriend at the time of the incident and that the two had dated for approximately six months. Later, when M.T. mentioned that she had texted N.C. after the incident, she repeated that he was her boyfriend. Counsel never asked whether they had agreed not to date other people, or whether M.T. 6  understood N.C. to believe they were only dating each other. Nor did counsel ask whether M.T. believed the relationship was monogamous. ¶ 15 During N.C.’s testimony, defense counsel asked if he believed that his relationship with M.T. was monogamous. N.C. responded, “Yes.” The prosecution objected based on relevance. Defense counsel responded that evidence of monogamy would support the theory of defense by providing M.T. with a motive to make a false allegation. ¶ 16 The trial court2 ruled as follows: Okay. So what [the previous judge] actually ordered with regard to their relationship was that it was intrinsic evidence that surrounded the time of the incident, and if they were in a relationship at the time of the incident, it was relevant if the foundation was laid, including questions with regard to communication or contact with [M.T.], and was she had with him shortly before, during, and shortly after the incident. And that those things were relevant to motivation for making allegations in the case, and her state of mind at the time. I don’t see in that ruling that [the judge] allowed for any questions with regard to ______________________________________________________________________________ 2 A different judge presided over the trial than the judge who issued the pretrial ruling. 7  whether their relationship was monogamous. So I’m going to sustain the objection. ¶ 17 The trial court instructed the jury to disregard N.C.’s answer. B. Standard of Review and Applicable Law ¶ 18 “We review a district court’s evidentiary rulings for an abuse of discretion.” People v. Feldman, 2024 COA 28, ¶ 28. “A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when the trial court misapplies or misconstrues the law.” Fisher v. People, 2020 CO 70, ¶ 13. Under this standard, “we ask not whether we would have reached a different result but, rather, whether the trial court’s decision fell within the range of reasonable options.” People v. Archer, 2022 COA 71, ¶ 23 (quoting Hall v. Moreno, 2012 CO 14, ¶ 54). ¶ 19 A defendant’s right to confront witnesses is guaranteed by both the Sixth Amendment of the United States Constitution and article II, section 16, of the Colorado Constitution. Kinney v. People, 187 P.3d 548, 558-59 (Colo. 2008). To protect this right, a defendant must be given an opportunity for effective cross- examination. Merritt v. People, 842 P.2d 162, 166 (Colo. 1992). Effective cross-examination, however, does not mean unlimited 8  cross-examination. Id. Thus, a trial court has wide latitude to place reasonable limits on cross-examination based on concerns regarding, among other things, harassment, prejudice, confusion of the issues, waste of time, and marginal relevance. Id. ¶ 20 Evidence must be relevant to be admissible. CRE 402. That means the evidence must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401. ¶ 21 Under section 18-3-407, evidence relating to an alleged rape victim’s sexual conduct or reputation for sexual conduct, or others’ opinions about the alleged victim’s sexual conduct, is generally presumed to be irrelevant. There are three exceptions to this presumption: (1) evidence of a victim’s prior or subsequent sexual conduct with the accused; (2) specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or similar evidence; and (3) evidence otherwise relevant to a material issue in the case. People v. Owens, 183 P.3d 568, 573 (Colo. App. 2007). As well, evidence relating to an alleged victim’s motive to lie may be relevant to a material issue in a sexual assault case. Id. at 9  574; see also People v. Golden, 140 P.3d 1, 5-6 (Colo. App. 2005) (concluding in a sexual assault case that the trial court erred in prohibiting the defendant from inquiring whether the victim had been in a “committed romantic relationship” with a third party because the evidence was relevant to the victim’s motive to lie about the sexual assault in order to preserve her committed relationship). C. Analysis ¶ 22 Lucero argues that the evidence of a monogamous relationship was critical to raise the inference that M.T. would be concerned about N.C. believing she had been unfaithful. In particular, he asserts that “in 2021, ‘boyfriend’ did not necessarily mean a committed, monogamous relationship.” ¶ 23 We begin by noting the theory of defense — that the sexual contact was consensual and M.T. falsely accused Lucero of assaulting her to preserve her relationship with N.C. Consistent with that theory and with the division’s analysis in Golden, we agree with the trial court’s pretrial ruling that evidence concerning the nature of the relationship between N.C. and M.T. was relevant to M.T.’s motive to lie. Which brings us to defense counsel’s question, asked after M.T. testified — whether N.C. believed he was in a 10  monogamous relationship with M.T. We discern no abuse of discretion in the court’s decision to sustain the prosecutor’s relevance objection, for three reasons. ¶ 24 First, because counsel never asked M.T. what she understood N.C. to believe about the nature of their relationship, N.C.’s understanding of the nature of his relationship with M.T., standing alone, was not relevant to M.T.’s motive. M.T.’s understanding of the nature of the relationship would have been relevant to her credibility and motivation to lie; however, defense counsel never asked M.T. if she believed that she was in a monogamous or committed romantic relationship. Thus, N.C.’s unilateral belief about the nature of their relationship did not make it more or less probable that M.T. would lie, absent some evidence of M.T.’s understanding of what N.C. believed, and the trial court’s ruling that this question, as asked, was irrelevant is correct. ¶ 25 Second, the record does not show that Lucero was prohibited from questioning M.T. about her relationship with N.C. or that his right to confront her was violated. As previously discussed, M.T. testified that N.C. was her boyfriend at the time of the incident. Her friend C.P. also testified that M.T. was dating N.C. 11 ¶ 26 Additionally, in opening statement, defense counsel said: And the evidence will show that after that, [M.T.]’s friend [C.P.] came in the bathroom, found her crying, and pressed her for information. .... [C.P.] pushed her like, you know why are you crying, what happened? At which point, [M.T.] is left with a choice. Either she can tell her friend, I tried to cheat on [my] boyfriend [N.C.], and the kid, who’s four years younger than me, supposed to not really be good enough for me, turned me down and left with his buddies, or she can say I was taken advantage of. ¶ 27 Therefore, the jury was able to consider the nature of the relationship as it concerned the defense’s theory and M.T.’s motive to fabricate the allegations against Lucero. ¶ 28 We are not persuaded that Owens requires a different result. In Owens, the defendant testified that, before engaging in any sexual activity, he and the victim had discussed a romantic relationship between her and a friend. 183 P.3d at 573. A juror inquired whether the victim had discussed with the defendant the nature of her relationship with the friend. Id. Outside the presence of the jury, the defendant answered: “Yes, sir, she did. . . . Her exact word was she called him her boyfriend. . . . [Further][,] [s]he 12  discussed all their sexual activities, how many times, how long, how often, and at one point she asked me if I thought this was wrong.” Id. A division of this court found that the trial court erred in excluding the evidence of the victim’s romantic relationship with the friend because it was relevant to her motive to lie. Id. at 575. ¶ 29 As in Owens, the jury heard testimony that M.T. and N.C. were together at the time of the incident, and the jury was free to consider this evidence in assessing M.T.’s credibility. And nothing in the trial court’s ruling precluded defense counsel from probing the level of commitment in that relationship further. Nor did the court prohibit defense counsel from relying on the “boyfriend” characterization as support for his argument that M.T. had a motive to falsely accuse Lucero. Thus, we discern no constitutional violation. ¶ 30 Third and finally, the record shows that M.T. was vigorously cross-examined and “recounted the details of the alleged assault[] at length, providing the jury with a full opportunity to judge her credibility in light of her demeanor.” People v. Eppens, 979 P.2d 14, 18 (Colo. 1999). And the jury’s split verdict, acquitting Lucero of two of the charged sexual assaults, shows that the jury carefully 13  considered and parsed all the evidence. See Washington v. People, 2024 CO 26, ¶ 35 (“While a split verdict does not conclusively decide the harmlessness question, it is ‘an indication that the jurors exercised some discretion in their deliberations’ and that the error did not cause them to ‘blindly convict the defendant.’” (quoting Martin v. People, 738 P.2d 789, 795-96 (Colo. 1987))). ¶ 31 Accordingly, we conclude that the trial court did not abuse its discretion in limiting Lucero’s cross-examination of N.C. III. CRE 404(b) Evidence ¶ 32 Lucero next contends that the trial court abused its discretion by admitting bad character evidence without complying with CRE 404(b). We agree the trial court erred in finding the evidence was intrinsic under Rojas v. People, 2022 CO 8. Nevertheless, we conclude the error was harmless. A. Additional Background Information ¶ 33 Before trial, the prosecution noticed its intent to introduce evidence of Lucero’s interactions with police when officers responded to a separate trespass call at a different location in the apartment complex shortly after the assault. The prosecution sought to admit evidence of Lucero swearing at police and being 14  verbally antagonistic when approached in relation to the trespass call. The prosecution offered the evidence to show state of mind and identity. The trial court found that the evidence was intrinsic under Rojas, was relevant, and was not offered to show that Lucero had bad character. The court also found that the relevance was not substantially outweighed by unfair prejudice and determined that the evidence was admissible so long as it was deemed relevant and reliable by the trial judge. ¶ 34 Before Detective Max Neuzil’s testimony, Lucero objected to any testimony surrounding his interaction with police as irrelevant. After referencing the pretrial order, the court found that Neuzil’s testimony was relevant because it was part of the facts that led to or surrounded the case. He instructed the prosecutor that he was not permitted to “go in depth about that.” The prosecution added that Neuzil’s testimony would “tie up with identity.” ¶ 35 Neuzil testified that around 3:12 a.m., he was dispatched to the same apartment complex where M.T. lived in response to a group of teenagers trespassing on a patio.3 When Neuzil arrived, he ______________________________________________________________________________ 3 M.T. texted N.C. at 3:17 a.m., “a couple minutes” after the assault. 15  encountered four males. He said that Lucero refused to stop and talk to him and was antagonistic. The interaction ended when the four men walked away. ¶ 36 The next morning, Neuzil received information that a sexual assault had occurred in the same apartment complex. Neuzil reviewed his body-worn camera footage and sent a picture of the four men to the investigating officers. Neuzil testified that he believed there might have been a connection because the incidents were in the same apartment building around the same period of time. The investigating officers confirmed that Lucero was the individual they were looking for. B. Standard of Review and Controlling Law ¶ 37 We review a trial court’s evidentiary rulings for an abuse of discretion. Rojas, ¶ 16. A trial court has substantial discretion in deciding whether to admit evidence of other acts. Perez v. People, 2015 CO 45, ¶ 22. “In deference to the trial court’s discretion, we must assume the maximum probative value and the minimum unfair prejudice to be given the evidence.” Yusem v. People, 210 P.3d 458, 467 (Colo. 2009). Moreover, we may affirm a court’s 16  ruling admitting evidence on any basis supported by the record. People v. Garcia-Gonzalez, 2020 COA 166, ¶ 16. ¶ 38 In Rojas, our supreme court abolished the res gestae doctrine. Rojas, ¶ 41. In its place, the court adopted an intrinsic-extrinsic framework to determine whether the admission of uncharged misconduct evidence should be analyzed under CRE 404(b). Rojas, ¶¶ 44, 52. ¶ 39 Intrinsic acts are those (1) that directly prove the charged offense or (2) that occurred contemporaneously with the charged offense and facilitated the commission of it. Id. at ¶ 52. Their admissibility is governed by the standard evidentiary principles, including whether the evidence is relevant under CRE 401 and whether it should be excluded under CRE 403. Rojas, ¶¶ 25, 52. ¶ 40 Extrinsic evidence, on the other hand, involves conduct independent of and different from the charged offense. People v. Quintana, 882 P.2d 1366, 1372 (Colo. 1994), abrogated on other grounds by Rojas, 2022 CO 8. If extrinsic evidence is potentially reflective of a defendant’s “bad character,” it may still be admissible if it meets the criteria of CRE 404(b). Rojas, ¶ 52. 17 ¶ 41 CRE 404(b) prohibits using evidence of a defendant’s prior acts to prove his character or to show that he acted in conformity with that character on a particular occasion. However, evidence of an uncharged act may be admissible for another purpose, “such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” CRE 404(b)(2). ¶ 42 To be admissible, the prosecution must establish by a preponderance of the evidence that the prior acts occurred, and the evidence must satisfy the four-prong test set out in People v. Spoto, 795 P.2d 1314 (Colo. 1990). See People v. Garner, 806 P.2d 366, 372-73 (Colo. 1991). First, the evidence must relate to a material fact. Spoto, 795 P.2d at 1318. Second, the evidence must be logically relevant to that material fact: It must tend to make the existence of the material fact more or less probable. Id. Third, the evidence’s logical relevance must be independent of the prohibited character inference. Id. Fourth, the evidence’s probative value must not be substantially outweighed by the danger of unfair prejudice. Id. 18  C. Analysis ¶ 43 We begin by disagreeing with the trial court that the evidence was intrinsic to the charges here. Moreover, we are unpersuaded by the People’s argument that evidence of Lucero’s demeanor directly after the assault was intrinsic because it tended to show that he knew the sexual assault was not consensual. We are unaware of any authority supporting this argument. ¶ 44 Applying the Rojas test, we first note that Lucero’s contact with the police occurred after the incident with M.T., in a different location within the apartment complex, and involved individuals unrelated to M.T. or her friends. Thus, we fail to see how the evidence proved any of the charged offenses. Moreover, because it occurred after the offenses charged and in a different location, we fail to see how Lucero’s demeanor facilitated the commission of the charged offenses. Accordingly, we conclude the court abused its discretion in admitting this evidence under Rojas. ¶ 45 The People alternatively argue that the evidence was admissible under CRE 404(b) and ask us to affirm on this basis. They reason that Lucero’s location in the apartment complex close in time to the incident, together with his demeanor, tended to show 19  that his sexual encounter was not consensual. We are not convinced that Lucero’s attitude and demeanor were relevant to his state of mind at the time of the assault and conclude that (1) the only relevance Lucero’s location had related to identity, which was not a contested issue at trial; and (2) Lucero’s demeanor was not relevant to any material fact. ¶ 46 Turning to CRE 404(b) and applying Spoto’s first and second factors, we note that “[t]he first prong of the Spoto test is the easiest to satisfy.” Yusem, 210 P.3d at 464. A material fact is one “that is of consequence to the determination of the action.” CRE 401. “So long as the purposes for which the prior act evidence is offered are somehow probative of an ultimate fact, the first prong is satisfied.” Yusem, 210 P.3d at 464. And to satisfy the second prong, the prosecution “need only show logical relevance — that the prior act evidence has any tendency to make the existence of the material fact more or less probable than without the evidence.” Id. at 464-65. Identity is a material fact that is of consequence to the determination of the action. Id. at 463. Therefore, we conclude that evidence of the location and timing of the officer’s contact with Lucero was relevant to identity because it tended to connect Lucero 20  to the apartment complex at the same time the incident occurred. But we cannot discern why Lucero’s state of mind at the time of the incident would be relevant under Spoto’s first and second prongs, and the People offer no authority to support such relevance. Therefore, we conclude that Spoto is not satisfied and turn to harmlessness. ¶ 47 The record shows that Lucero’s counsel minimized any prejudice by establishing on cross-examination of Neuzil that refusing to talk to the police and asking whether one is free to leave are components of knowingly invoking one’s rights: [DEFENSE COUNSEL:] And when you contacted them, you said that they were kind of noncooperative, fair? [NEUZIL:] Yes. [DEFENSE COUNSEL:] Okay. It’s not a crime to avoid talking to the police is it? [NEUZIL:] No. [DEFENSE COUNSEL:] It’s not a crime to ask if you’re being detained? [NEUZIL:] No. [DEFENSE COUNSEL:] From a know your rights perspective, it might be a good idea? [NEUZIL:] Sure. 21 ¶ 48 Additionally, one of Lucero’s friends who was with him that night testified that he asked Neuzil if they were being detained because his parents had taught him to be as careful as possible when interacting with police. ¶ 49 Accordingly, while we find error in the admission of this evidence, we conclude the error was harmless and did not affect the outcome of the trial because identity was not at issue, defense counsel minimized any prejudice through cross-examination, and the jury was not unduly influenced to convict based on bad character as reflected in its split verdict. IV. Disclosure of Defense Investigative Report ¶ 50 Lucero next contends that the trial court erred by ordering the defense to disclose a confidential investigative report to the prosecution. While we agree that an error occurred, we conclude it was harmless. A. Additional Background Information ¶ 51 During cross-examination, M.T. denied discussing the incident with Tyffany Valdes4 and did not remember telling Valdes that ______________________________________________________________________________ 4 Valdes was dating an ex-boyfriend of M.T. at the time of trial. 22  “some guy followed us home from the bar, broke in through the door [N.C.] left [….] or [N.C.] left broken, and raped me and [my friend] while we were asleep in our bed.” ¶ 52 Outside the jury’s presence, the prosecutor said, “[D]efense counsel asked about the statements that [M.T.] may have made to Tyffany Valdes,” and “it sound[ed] like there may have been an interview of Ms. Valdes.” Relying on People v. Small, 631 P.2d 148 (Colo. 1981), the prosecution requested a copy of that investigative report for review. ¶ 53 The next day, Lucero argued that Small was distinguishable because Valdes was available to testify. ¶ 54 The trial court inquired further: I just want to – so the Small decision is based on the fact that there were — there was an investigatory report, and that report was of a witness. And that became substantive evidence once that was introduced to impeach a witness. So how is that different? Just because the witness is here to testify doesn’t negate the fact that you’ve created a report of that witness outside of court and are asking questions of another witness with that report? ¶ 55 Defense counsel responded: I believe it was the Colorado Supreme Court that said it was the manner in which the 23  defense attorney conducted impeachment that constituted a waiver of the work product privilege. In this case — and the reason for that was because the prosecutor, without the report, with a witness who does not remember anything except the chosen statements the defense attorney was basically reading into the record, they couldn’t add context to it or they couldn’t discover any prior consistent statements. In this case, Ms. Valdes is a disclosed witness. The [p]rosecution has her address. They can interview her. And when — if and when she testifies, which at this point she’d have to, they can cross-examine her as well. Whereas in Small[] they could not cross-examine without a copy of that report, because the report was the only extrinsic evidence, rather than the witness. .... And so I think the important thing [….] from a report when there’s no other extrinsic evidence besides the report, and the witness has said they don’t remember, I mean, anything else . . . [and] the prosecution’s inability to elicit prior consistent statements, given that the witness didn’t remember anything and was only agreeing with the report. ¶ 56 The trial court responded: I don’t find that there’s anything in [Small] that talks about the absence of another witness having anything to do with the fact that you have used an investigatory report to elicit impeachment statements, and therefore have 24  waived the privilege of work product, made it substantive evidence, which now the [p]rosecution is entitled to have so that they can rehabilitate their witness with the proper and relevant information from that report. ¶ 57 The prosecutor added: Your Honor, I’m looking at the paragraph that [defense] counsel has cited. I have a similar read to the [c]ourt’s. I did not see anything about the unavailability of a witness and that dictating why this decision was made. Specifically I’m looking at . . . “The defense sought to impeach [the witness’s] testimony by developing evidence of inconsistencies between what he was saying at trial and what he had told various people in anticipation of the defendant’s trial.” [(Quoting Small, 631 P.2d at 159.)] That’s exactly the situation we have here. [M.T.] was asked about statements she made to Tyffany Valdes. It sounds like an interview was done with Ms. Valdes by the [d]efense prior to trial. And by bringing that up they are seeking to impeach her about statements that she made that contradict what she earlier said on the stand with me. And so given that, I would like a copy of the report to see the context in which those statements were made, potentially rehabilitate her, et cetera. ¶ 58 The trial court found that the facts were almost identical to those in Small and ordered Lucero to disclose the investigative report to the prosecution. 25 ¶ 59 Subsequently, Valdes testified that M.T. told her that “she was in bed with her friend . . . and that she got assaulted, and so did her friend at the same time in the same bed.” Defense counsel did not discuss or ask Valdes about her previous interview. On cross- examination, the prosecutor asked Valdes if, in her past interview with defense counsel, she mentioned that M.T. was in her bedroom with a friend. The following colloquy occurred: [PROSECUTOR:] At no point in time when you were interviewed by the [d]efense, did you mention that [M.T.] was in the bed with her friend . . ., and that both of them were raped at the same time? [VALDES:] No. [PROSECUTOR:] Okay. So as you sit here today, that’s the first time you’re telling us this? [VALDES:] No. The first time I told it was in — like, when I talked to the [d]efense. [PROSECUTOR:] Okay. So if I showed you a transcript of your discussion with the [d]efense, would that help you remember what you told them back on August 14th of 2023? [VALDES:] Yes. .... [PROSECUTOR:] So did you tell the [d]efense attorney’s office that [M.T.] and her friend . . . 26  were in the same bed and were raped at the same time? [VALDES:] No, just that they were in the bedroom. [PROSECUTOR:] Okay. And when you were interviewed by the [d]efense, they asked you if you had any additional details to give about what [M.T.] had told you about the rape, right? [VALDES:] Yes. [PROSECUTOR:] And you didn’t give any other details about it? [VALDES:] No. B. Standard of Review and Controlling Law ¶ 60 We review a trial court’s decision to order disclosure of an investigative report for an abuse of discretion. People v. Angel, 2012 CO 34, ¶ 27; People v. Ray, 252 P.3d 1042, 1049 (Colo. 2011). ¶ 61 Attorney work product includes those materials compiled in advance of litigation. People v. Martinez, 970 P.2d 469, 475 (Colo. 1998). The attorney work product privilege has traditionally “protected the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party as embodied in specific documents or tangible items prepared in actual anticipation of litigation or for trial.” Id. at 474. 27 ¶ 62 While opinions and mental impressions are absolutely privileged, an attorney’s collections of facts and data, such as witness statements, enjoy only a qualified immunity from disclosure. Id. at 475 (“In Colorado, we have alternatively held that witness statements are not work product, or if work product, are entitled only to a qualified privilege that can be overcome or waived.”). Thus, “[t]hey are work product only in the sense that they are compiled by the attorney; not in the sense that they contain the attorney’s mental impressions or strategies.” Id. Moreover, when defense counsel elects to question a witness about information contained in a defense investigation report, the defense waives the work product privilege with respect to the matters contained in the report. Small, 631 P.3d at 159. C. Analysis ¶ 63 We agree with Lucero that the court erred in ordering defense counsel to disclose the report during M.T.’s testimony, because the report did not document an interview of M.T., and therefore, its contents could not be used to impeach her testimony. Additionally, the record shows that defense counsel did not impeach Valdes with any of the statements she made to the defense investigator, and 28  thus, its disclosure during her testimony was equally erroneous. The People have not cited, nor are we aware of, any authority requiring the defense to disclose information it learns in its investigation by simply questioning witnesses concerning that information. See Crim. P. 16(II) (requiring the defense to disclose only medical and scientific reports, expert witnesses and their o