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COLORADO COURT OF APPEALS 2012 COA 89
Court of Appeals No. 08CA1374
El Paso County District Court No. 03CR3375
Honorable Richard Hall, Judge
Honorable Larry E. Schwartz, Judge
______________________________________________________________________________ The People of the State of Colorado, Plaintiff-Appellee, v. Robert Herdman, Defendant-Appellant. ______________________________________________________________________________
______________________________________________________________________________ John W. Suthers, Attorney General, John D. Seidel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Defendant, Robert Herdman, appeals his judgment of
conviction for sexual assault, second degree kidnapping, and a
crime of violence sentence enhancer. We conclude that (1) the trial
court did not reversibly err in admitting the evidence obtained from
Herdman’s court-ordered mental health examinations, nor did the
admission of such evidence violate Herdman’s privilege against self-
incrimination; (2) an Army sergeant’s testimony did not prejudicially
violate evidentiary and discovery rules so as to warrant reversal of
Herdman’s convictions; (3) there was no cumulative error; (4) there
was sufficient evidence to support Herdman’s sex assault and crime
of violence convictions; and (5) Herdman’s convictions for sex
assault and kidnapping did not violate double jeopardy. We further
conclude, however, that a remand is necessary (1) to correct the
mittimus to reflect the actual sentence on Herdman’s kidnapping
conviction and to clarify the manner in which parole is to be
determined, and (2) to allow the trial court the opportunity to
determine the amount of presentence confinement credit to which
In January 2003, Herdman, a private in the United States
Army stationed at Fort Carson, began taking an anti-malarial drug
called Lariam, in preparation for his deployment to Iraq. At the
time, the Army was unaware that Lariam could cause psychological
In April 2003, Herdman was deployed to the Middle East.
Shortly thereafter, however, he developed appendicitis, and, after
undergoing an emergency appendectomy, he was sent back to Fort
Subsequently, Herdman missed physical training and work
details. He also used crack cocaine. A military psychologist
diagnosed him with post-traumatic stress disorder (PTSD) from his
service in Iraq and recommended that his duties be changed and
that he be placed on a medical hold. His superiors refused,
however, believing that he was malingering.
On July 31, 2003, the victim was driving to the gym from her
apartment when Herdman waved her down. She stopped and let
him into the car after he claimed that he needed a ride to get to his
girlfriend, who was in trouble. He then pulled out a knife and said,
“Do what I want or I’m going to cut you.” The victim looked over
and saw the knife in Herdman’s lap. He then directed the victim to
drive back to the apartment complex. When they arrived, he pulled
her out of the car and into an apartment. Once they were in the
apartment, he smoked or snorted some white powder, ordered the
victim into the bedroom, and then sexually assaulted her. During
the assault, the knife was on the bed stand, where the victim could
Herdman was subsequently charged with sexual assault,
second degree kidnapping, and a crime of violence sentence
enhancer. As pertinent here, he ultimately underwent the following
court-ordered mental health examinations:
• After Herdman filed a notice, pursuant to section 16-8-
107(3)(b), C.R.S. 2011, of his intent to introduce evidence
concerning his mental condition, he was examined by the first
doctor. This doctor did not ultimately testify at trial.
Herdman was found incompetent to stand trial and was
• Thereafter, Herdman sought to be released on bond and was
evaluated by a second doctor (the bond examiner), who was
appointed by the court to assess Herdman’s risk to society and
flight risk if he were released on bond. This examiner
concluded that Herdman’s restoration to competency would be
more safely and effectively done as an inpatient in an
institution, and the court entered an order committing
• While institutionalized, Herdman continued undergoing
treatment, during which a third doctor (the competency
examiner) performed ongoing competency evaluations.
Herdman was ultimately restored to competency.
• Thereafter, Herdman changed his plea to not guilty by reason
of insanity, which resulted in his being examined by a fourth
doctor (the sanity examiner), pursuant to section 16-8-
103.7(2), C.R.S. 2011. This examiner concluded that
Herdman was not legally insane at the time of the offense.
Subsequently, Herdman withdrew his insanity plea, entered a
not guilty plea, and provided notice of his intent to raise the
affirmative defense of involuntary intoxication, based on the
psychological effects of Lariam. He then designated experts to
opine, among other things, that Lariam had caused him to become
psychotic and that he had committed the assault while he was
unable to conform his conduct to the requirements of the law.
Thereafter, the court conducted a hearing at which Herdman
expressed concern that the prosecution had not identified the
experts whom it intended to call to rebut the opinions of his
designated experts. The prosecution responded that, at trial, it
intended to rebut Herdman’s defense of involuntary intoxication
with the previously provided opinions of, among others, the bond
examiner, the competency examiner, and the sanity examiner, all of
whom the prosecutor identified by name. Herdman moved to
suppress these experts’ opinions, arguing that the admission of this
evidence would violate section 16-8-107, C.R.S. 2011, but the trial
The case proceeded to trial, and, as pertinent here, the bond
examiner, the competency examiner, and the sanity examiner
collectively testified, in substance, that Herdman’s psychological
problems were not caused by PTSD or Lariam use, but rather
resulted from his cocaine use, psychopathy, narcissism, and
malingering, among other things. The experts further testified that
Herdman showed no empathy or remorse for the victim. Herdman
objected to some, but not all, of this testimony.
In addition, one of Herdman’s superiors, Sergeant Gallegos,
testified, among other things, that Herdman never served in Iraq,
did not have PTSD but rather was trying to “play the system” to
avoid going back to Iraq, and was “going through a trend of being
rebellious.” Again, Herdman objected to some, but not all, of this
The jury convicted Herdman as charged, and he now appeals,
raising various statutory, evidentiary, and constitutional issues.
Statutory interpretation is a question of law that we review de
novo. People v. Daniels
, 240 P.3d 409, 411 (Colo. App. 2009). Our
primary purpose in statutory interpretation is to ascertain and give
effect to the intent of the General Assembly. Id.
We first look to the
language of the statute, giving words and phrases their plain and
ordinary meaning. Id.
We read words and phrases in context and
construe them according to their common usage. Id.
In addition, we must interpret a statute in a way that best
effectuates the purpose of the legislative scheme. Id.
When a court
construes a statute, it should read and consider the statute as a
whole and interpret it in a manner giving consistent, harmonious,
and sensible effect to all of its parts. Id.
In doing so, a court should
not interpret the statute so as to render any part of it either
meaningless or absurd. Id.
If the statute is unambiguous, we look
We also review de novo the question of whether a statute is
constitutional, either on its face or as applied. People v. Bondurant
2012 COA 50, ¶ 11. A party challenging the constitutionality of a
statute bears a heavy burden to demonstrate its unconstitutionality
beyond a reasonable doubt. Id.
at ¶ 12. Generally, a statute is
unconstitutional on its face only if the complaining party can show
that the law is unconstitutional in all of its applications. Id.
¶ 14. In addition, a facially constitutional statute may be
unconstitutional as applied to an individual under the
circumstances in which he or she had acted or proposed to act. Id.
With respect to Herdman’s contentions regarding the evidence
that was presented at trial, an objection is sufficient to preserve an
evidentiary issue for appeal if the objecting party presents
arguments or uses language that alerts the trial court to the
impending error. Am. Fam. Mut. Ins. Co. v. DeWitt
, 218 P.3d 318,
325 (Colo. 2009). Thus, an objection on relevance grounds is not
necessarily sufficient to preserve an appellate argument that the
evidence was unfairly prejudicial. See id.
at 325-26 (concluding
that a relevance objection was insufficient to preserve an unfair
prejudice objection where the relevance objection contained no
phrases or arguments that could reasonably have been expected to
focus the court’s attention on concerns about unfair prejudice).
When a defendant has contemporaneously objected to the
admission of evidence at trial, we review the contention for
harmless error. People v. Vecellio
, 2012 COA 40, ¶ 53. Under this
standard, when the error is not of constitutional dimension, we will
disregard it as harmless if there is no reasonable probability that it
contributed to the defendant’s conviction. Id.
When, however, a
defendant has not objected to the admission of evidence at trial, or
when he or she objected on grounds different from those asserted
on appeal, we review for plain error. Id.
¶ 54. Plain error
addresses error that is obvious and substantial and that so
undermines the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.
People v. Miller
, 113 P.3d 743, 750 (Colo. 2005).
With respect to Herdman’s contentions regarding the discovery
rules, a conviction will not be reversed for failure to comply with
such rules absent a demonstration of prejudice. People v. Brown
___ P.3d ___, ___ (Colo. App. No. 08CA1275, Aug. 4, 2011).
III. Admissibility of the Prosecution Experts’ Testimony
Herdman principally contends that the trial court reversibly
erred in admitting testimony of the prosecution’s above-described
experts because such testimony (1) was inconsistent with the
statutory scheme concerning the admissibility of such evidence;
(2) violated his privilege against self-incrimination; and (3) was
irrelevant and otherwise inadmissible under CRE 401 to 404. We
A. Admissibility Under the Applicable Statutes
Section 16-8-107(1)(a), C.R.S. 2011, provides, in pertinent
Except as provided in this subsection (1), no evidence acquired directly or indirectly for the first time from a communication derived from
the defendant’s mental processes during the course of a court-ordered examination under section 16-8-106[, C.R.S. 2011,] or acquired pursuant to section 16-8-103.6[, C.R.S. 2011,]
is admissible against the defendant on the issues raised by a plea of not guilty, if the defendant is put to trial on those issues, except to rebut evidence of his or her mental condition introduced by the defendant to show incapacity to form a culpable mental state
. . . .
This provision allows the prosecution to introduce evidence
developed in the course of, among other things, a court-ordered
examination to rebut mental condition evidence introduced by the
defendant to show incapacity to form a culpable mental state. For
purposes of this provision, the phrase “evidence of his or her mental
condition introduced by the defendant to show incapacity to form a
culpable mental state” refers to that portion of the current definition
of “insanity” that formerly constituted the affirmative defense of
impaired mental condition. See
§§ 16-8-101.3, 16-8-101.5(1)(b),
C.R.S. 2011; see also People v. Flippo
, 159 P.3d 100, 105 (Colo.
2007) (describing section 16-8-107(1)(a) as “addressing a court-
ordered psychiatric examination to determine a defendant’s mental
condition of insanity”). Thus, section 16-8-107(1)(a) allows the
prosecution to introduce evidence acquired in a court-ordered
examination to rebut a defendant’s evidence of his or her impaired
Section 16-8-107(1.5)(a), C.R.S. 2011, provides, in pertinent
Except as otherwise provided in this subsection (1.5), evidence acquired directly or indirectly for the first time from a communication derived from the defendant’s mental processes during the course of a court-ordered examination pursuant to section 16-8-106 or acquired pursuant to section 16-8-103.6 is admissible only as to the issues raised
by the defendant’s plea of not guilty by reason of insanity
, and the jury, at the request of
either party, shall be so instructed; except that . . . such evidence shall also be admissible
as to the defendant’s mental condition if the defendant undergoes the examination because the defendant has given notice pursuant to
subsection (3) of this section that he or she intends to introduce expert opinion evidence concerning his or her mental condition
Section 16-8-107(3)(b), in turn, provides, in pertinent part:
Regardless of whether a defendant enters a plea of not guilty by reason of insanity pursuant to section 16-8-103, [C.R.S. 2011,]
the defendant shall not be permitted to introduce evidence in the nature of expert opinion concerning his or her mental condition without having first given notice to the court and the prosecution of his or her intent to introduce such evidence and without having
undergone a court-ordered examination pursuant to section 16-8-106.
Thus, section 16-8-107(1.5)(a) allows the prosecution to
introduce evidence developed in the course of, among other things,
a court-ordered examination when such evidence pertains to (1) the
issues raised by a defendant’s plea of not guilty by reason of
insanity, or (2) a defendant’s mental condition, if he or she
undergoes an examination after giving notice pursuant to section
16-8-107(3), C.R.S. 2011, that he or she intends to introduce expert
opinion evidence concerning his or her mental condition.
Accordingly, although Herdman is correct that section 16-8-107(3)
principally concerns defense experts, he ignores the facts that this
provision triggers a compulsory examination and that the second
exception contained in section 16-8-107(1.5)(a) allows for the
admissibility of certain information derived from that examination.
As to this second exception, the People suggest, and we agree,
that the plain language of section 16-8-107(1.5)(a) allows for the
admission of evidence acquired for the first time from a
communication derived from a defendant’s mental processes only
when such evidence was acquired during the course of a court-
ordered examination conducted as a result of the defendant’s
having given notice pursuant to section 16-8-107(3)(b).
Moreover, contrary to Herdman’s argument that the term
“mental condition,” as used in section 16-8-107(1.5)(a) and (3)(b),
refers solely to insanity, our supreme court and divisions of this
court have construed that term more broadly. See
, People v.
, 2012 CO 21, ¶¶ 28-29, 272 P.3d 1078, 1083-84
(concluding that a defendant’s learning disability, which did not rise
to the statutory level of a mental disease or defect that required an
insanity plea, constituted a “mental condition” for purposes of
triggering the requirements of section 16-8-107(3)(b)); Flippo
159 P.3d at 104-05 (concluding that “mental condition,” as used in
section 16-8-107(3)(b), unambiguously includes a defendant’s
intellectual disability, even though such disability did not rise to the
level of insanity); Bondurant
, ¶ 37 (in rejecting the defendant’s
contention that section 16-8-107(3)(b) was unconstitutionally
vague, the division concluded that the statutory scheme was
sufficient to put the defendant on notice that evidence of his clinical
depression, anxiety disorder, and multiple personality disorder was
“mental condition” evidence that exposed him to compulsory
examination and cooperation requirements).
Accordingly, we view the evidence that Herdman introduced in
support of his involuntary intoxication defense, which included
opinions that Herdman “was losing it” and “[didn’t] control his
thoughts,” and that “drug-induced toxicity” can escalate to a
psychotic episode in which a person does not do things knowingly,
Here, as noted above, Herdman withdrew his plea of not guilty
by reason of insanity. Accordingly, section 16-8-107(1)(a) and the
first exception to the inadmissibility rule set forth in section 16-8-
107(1.5)(a), both of which are triggered by claims of insanity, as
Thus, the question becomes whether the testimony of the
sanity expert, the competency expert, and the bond expert was
admissible under that portion of section 16-8-107(1.5)(a) allowing
for the admission of evidence acquired during the course of a court-
ordered mental health examination conducted as a result of the
defendant’s having given notice pursuant to section 16-8-107(3)(b).
(Although the People also suggest that the testimony at issue was
admissible under section 16-8.5-108, C.R.S. 2011, that section is
inapplicable because it did not become effective until after
Herdman’s trial.) We conclude that the evidence was admissible
As noted above, neither the sanity examiner, the competency
examiner, nor the bond examiner conducted his or her examination
as a result of Herdman’s notice that he intended to introduce expert
opinion evidence concerning his mental condition. At a hearing in
which Herdman pressed the prosecutor to disclose the experts
whom she intended to call in response to Herdman’s notice,
however, the prosecutor expressly stated that she would call the
three experts at issue, all of whom would testify in accordance with
their previously produced reports, to rebut the testimony identified
In our view, the prosecutor’s representation was sufficient to
satisfy the substantive requirements of section 16-8-107(1.5)(a), the
obvious purpose of which is to ensure that the prosecution is given
a fair opportunity to rebut mental condition evidence to be
presented by a defendant. See Gray v. Dist. Court
, 884 P.2d 286,
291 (Colo. 1994) (noting that the General Assembly’s purpose in
requiring court-ordered psychiatric examinations when a defendant
puts his or her mental condition in issue was both to prevent
defendants from manipulating the system and to find the truth);
, ¶ 22 (noting that the rationale of full disclosure
described in Gray
applies when defendants raise other mental
conditions to aid in their defense). Moreover, in the particular
circumstances of this case, we agree with the People that it would
elevate form over substance to hold that the experts at issue were
required to conduct additional examinations for the sole purpose of
reissuing their prior reports. Indeed, Herdman does not appear to
In addition, contrary to Herdman’s assertions in his briefs and
at oral argument, we do not perceive the prosecution experts’
testimony to have amounted to improper opinions that Herdman
possessed the requisite mens rea for the crimes charged at the time
of the offense. To the contrary, as noted above, Herdman
introduced expert testimony that because of his involuntary
intoxication, he “was losing it,” “[did not] control his thoughts,” and
suffered from drug-induced toxicity that could escalate to a
psychotic episode in which a person would not do things knowingly.
The prosecution experts merely responded to such testimony,
contending, among other things, that Herdman lacked the typical
symptoms of Lariam-induced toxicity, instead exhibited symptoms
of cocaine-induced intoxication, and, as his conduct at the time
showed, was not unable to control his thoughts or act knowingly.
For these reasons, we conclude that the testimony of the
sanity examiner, the competency examiner, and the bond examiner
satisfied the requirements of section 16-8-107(1.5)(a).
People v. Garcia
, 113 P.3d 775 (Colo. 2005), on which
Herdman relies, is not to the contrary. Although Garcia
that “[d]ue to the temporary nature of intoxication, no psychiatric
examination of the defendant is statutorily mandated,” id.
here, Herdman chose to designate an expert pursuant to section
16-8-107(3)(b) to support his involuntary intoxication defense. For
the reasons set forth above, this disclosure triggered the
requirements of section 16-8-107(1.5)(a) and the prosecution’s right
Herdman next contends that the admission of the prosecution
experts’ testimony violated his privilege against self-incrimination.
As an initial matter, we acknowledge the People’s contention
that Herdman failed to preserve this argument in the trial court.
Prior to trial, however, Herdman filed several motions to preserve
his constitutional rights, arguing that if he were to present expert
testimony on his mental state without pleading not guilty by reason
of insanity, then the prosecution would be barred by the privilege
against self-incrimination, among other things, from presenting
evidence obtained from the court-ordered examinations. Although
this assertion did not specifically address the defense of involuntary
intoxication and was couched in terms of seeking guidance from the
court with respect to the court’s interpretation of sections 16-8-
103.6, 16-8-106, and 16-8-107, the argument that Herdman made
is substantively the same as the argument that he is now making
on appeal. Accordingly, we conclude that Herdman sufficiently
preserved this issue and thus turn to the merits of his contention.
As a division of this court has held, “the privilege against self-
incrimination is not implicated by a court-ordered mental
examination when the information obtained therefrom is admitted
only on the issue of mental condition.” People v. Herrera
, 87 P.3d
240, 245 (Colo. App. 2003). Although the Herrera
limited its analysis to the situation in which the defendant raised
an insanity defense by virtue of his incapacity to form the requisite
mental state, id.
another division recently applied the Herrera
analysis to circumstances like those present here, in which a
defendant raised the issue of his or her mental condition without
pleading insanity. Bondurant
, ¶¶ 44-46. In those circumstances,
division reasoned, section 16-8-107(1) and (1.5)
preserve defendants’ privileges against self-incrimination by limiting
the admission of information obtained in court-ordered
examinations to those issues of mental condition and insanity that
defendants themselves have raised. Id.
at ¶ 46.
This reasoning is similar to that which applies under the
analogous framework governing mental condition evidence in
federal court. Specifically, in federal court, if a defendant presents
expert evidence of his mental condition, then the prosecution may
respond by presenting evidence obtained from the defendant’s
court-ordered mental health examinations. See
Fed. R. Crim. P.
12.2(b), (c)(4). This procedure was designed to protect a defendant’s
privilege against self-incrimination. See
1A Charles Alan Wright &
Andrew D. Leipold, Federal Practice & Procedure: Criminal
§ 207, at
500-01 (4th ed. 2008) (“As with a notice of an insanity defense,
defendant’s statements made during mental examination conducted
under Rule 12.2, the fruits of those statements, and expert
testimony based on those statements, are not admissible at trial
unless the defendant introduces evidence on the subject first. . . .
[T]his protection was added by Congress when the rule was first
adopted to avoid intruding on defendant's Fifth Amendment
privilege against self incrimination.”) (footnote omitted).
Here, not only did Herdman give notice that he intended to
present expert testimony concerning his mental condition, but also
he actually presented such testimony at trial. In these
circumstances, we are persuaded by the Bondurant
analysis and thus conclude that the admission of the prosecution
experts’ testimony, which was responsive to Herdman’s expert
evidence, did not violate Herdman’s privilege against self-
incrimination. See Bondurant
, ¶¶ 44-46.
C. Rule-Based Challenges to Prosecution Experts
Herdman next asserts that the testimony of the sanity
examiner, the competency examiner, and the bond examiner was
irrelevant under CRE 401 and 402 and was otherwise inadmissible
under CRE 403 and 404. Specifically, he contends that these
experts’ testimony regarding his cocaine use, psychopathy, lack of
empathy or remorse, narcissism, and malingering amounted to
evidence of bad character offered to show that he acted in
conformity with such bad character during the time frame at issue.
He further argues that the evidence regarding his cocaine use was
admitted in violation of the court’s orders (1) limiting the scope of
such evidence to cocaine use immediately prior to the events at
issue and (2) requiring the prosecution to request a bench
conference before introducing any such evidence. And he asserts
that the bond examiner’s risk assessment evidence was irrelevant
and highly prejudicial. We perceive no reversible error.
CRE 401 defines relevant evidence as evidence “having any
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.” Irrelevant evidence is
CRE 403 allows for the exclusion of relevant evidence “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
Under CRE 404(a), subject to certain exceptions not applicable
here, evidence of a person’s character or a trait of his or her
character is not admissible to prove that he or she acted in
conformity therewith on a particular occasion. See also People v.
, 224 P.3d 292, 296 (Colo. App. 2009) (“[W]hen the
prosecution seeks to admit any evidence which suggests that the
defendant is a person of bad character, . . . it must be prepared to
explain why the logical relevance of that evidence does not depend
on the inference that the defendant acted in conformity with his bad
And under CRE 404(b), the admissibility of evidence of other
crimes, wrongs, or acts is determined by applying a four-step test.
People v. Spoto
, 795 P.2d 1314, 1318 (Colo. 1990); see also
Yusem v. People
, 210 P.3d 458, 463 (Colo. 2009). First, the
evidence must relate to a material fact, which is a fact that is of
consequence to the determination of the action. Yusem
, 210 P.3d
at 463. Second, the evidence must be logically relevant, meaning
that it must have some tendency to make the existence of a
material fact more probable or less probable than it would be
without the evidence. Id.
Third, the logical relevance must be
independent of the prohibited intermediate inference that the
defendant committed the crime charged because of the likelihood
that he or she acted in conformity with his or her bad character. Id.
And fourth, the probative value of the evidence must not be
substantially outweighed by the danger of unfair prejudice. Id.
Regarding Herdman’s cocaine use, as noted above, Herdman’s
defense at trial was that he was involuntarily intoxicated due to the
effects of Lariam. The prosecution experts opined to the contrary,
stating, among other things, that the use of crack cocaine has been
associated with other sexual assaults, and that voluntary
intoxication was “far and away” the most likely explanation for any
“perturbations” to Herdman’s mental state on the date of the crime
at issue. Accordingly, the evidence concerning Herdman’s use of
cocaine was not offered to show Herdman’s bad character or any
propensity to act in accordance with any bad character, but rather
was offered to rebut his claim of involuntary intoxication, and the
court gave a limiting instruction advising the jurors that they could
consider Herdman’s cocaine use only for that purpose. In these
circumstances, we perceive no error in the admission of such
evidence. See People v. Gonzales-Quevedo
, 203 P.3d 609, 612 (Colo.
App. 2008) (noting that in rebuttal to an insanity defense, “the
prosecution may properly present alternative explanations of a
defendant’s behavior”); see also People v. Marsh
, ___ P.3d ___, ___
(Colo. App. No. 08CA1884, Dec. 22, 2011) (“Jurors are presumed to
follow instructions given to them by the trial court.”).
In light of the foregoing, for two reasons, we likewise perceive
no reversible error in the prosecution’s failure to request a bench
conference until after introducing evidence regarding Herdman’s
cocaine use. First, it appears that the initial reference to any
cocaine use by Herdman prior to the crime at issue was made on
direct examination by Herdman’s own expert, who had been called
out of order for scheduling reasons. The prosecution then properly
pursued that issue on cross-examination. Second, although the
prosecution did not request a bench conference until the next day,
the court ruled that such evidence was admissible. Accordingly, we
perceive no prejudice to Herdman from the prosecution’s arguably
Nor are we persuaded that evidence regarding Herdman’s
cocaine use years before the incident at issue warrants reversal.
The record reveals that the references to such cocaine use were few,
fleeting, and not detailed, and they were blurted out by witnesses
despite being nonresponsive to the questions asked. See People v.
, 231 P.3d 5, 12 (Colo. App. 2009) (noting, under a plain
error standard, that a witness’s improper reference to a search
warrant did not require reversal, where the reference was minimal,
the witness provided little detail about the process of applying for
and obtaining a search warrant, and the prosecutor did not
reference the statements in closing argument). Moreover, Herdman
did not move to strike such references or request an additional
For these reasons, we conclude that the admission of evidence
regarding Herdman’s cocaine use does not warrant reversal.
3. Psychopathy, Lack of Empathy or Remorse, Narcissism, and
Regarding the prosecution experts’ testimony as to Herdman’s
psychopathy, lack of empathy or remorse, narcissism, and
malingering, we conclude that such evidence was not offered to
show Herdman’s bad character, but rather was offered to rebut his
claims of involuntary intoxication and amnesia.
Specifically, evidence of Herdman’s psychopathy was relevant
to rebut his contention that his conduct was due to involuntary
intoxication, because such evidence offered an alternative
explanation for his conduct. See Gonzales-Quevedo
, 203 P.3d at
612-13 (holding that the prosecution could rebut a defendant’s
insanity defense with evidence that he suffered not from insanity,
but from antisocial personality disorder); Harris v. State
, 84 P.3d
731, 746 (Okla. Crim. App. 2004) (when a defendant’s experts
testified to his impaired mental functioning and ultimately opined
that the defendant was unable to form the specific intent to kill, the
prosecution properly rebutted such evidence with evidence of the
defendant’s psychopathy, which tended to show that his behavior
was not the result of a diminished mental capacity, but rather was
the product of a generally violent personality for which he should be
Likewise, evidence of Herdman’s lack of empathy, lack of
remorse, and narcissism was offered (1) to show that Herdman was
not involuntarily intoxicated due to Lariam, because, as Herdman’s
own experts indicated, people suffering from Lariam toxicity are
typically shocked and appalled by their conduct, and (2) to rebut
Herdman’s assertion that he suffered amnesia and did not know
what he had done. See People v. Martinez
, 74 P.3d 316, 325 (Colo.
2003) (noting that intent can be proved by circumstantial evidence,
including a defendant’s lack of remorse).
And evidence of Herdman’s malingering provided another
alternative explanation for Herdman’s assertion that Lariam made
him psychotic. See Gonzales-Quevedo
, 203 P.3d at 612; see also
People v. Henney
, 777 N.E.2d 484, 495 (Ill. App. Ct. 2002) (noting
that a prosecution expert’s testimony that the defendant was
malingering was proper because it tended to show that the defense
expert’s contrary conclusion may have been erroneous).
Herdman next contends that the court reversibly erred in
allowing the bond examiner to testify, because the bond examiner’s
testimony was irrelevant and highly prejudicial, and amounted to
evidence of Herdman’s bad character. We agree with Herdman that
this testimony was irrelevant and inadmissible, and thus, we need
not address his unpreserved CRE 403 and preserved CRE 404
objections. On the facts of this case, however, we cannot conclude
that the admission of the bond examiner’s irrelevant evidence
As noted above, the bond examiner performed a risk
assessment to determine whether Herdman would pose a risk to
society or a flight risk if he were to be released on bond. Herdman
objected to the bond examiner’s testifying regarding this
assessment, arguing, as pertinent here, that such testimony would
not be relevant to Herdman’s mental condition during the crime.
The prosecution responded that it would guide the bond examiner
not to label the examination as a risk assessment and that the
testimony would concern Herdman’s mental condition during the
The trial court overruled Herdman’s objection, reasoning that
the bond examiner’s opinion, although based on an examination
conducted after the crime, could be relevant to Herdman’s mental
condition during the crime. The court, however, invited defense
counsel to make contemporaneous objections to particular
questions posed to the bond examiner as appropriate.
The bond examiner then testified to, among other things,
Herdman’s “moderate risk of violence,” and he noted that because
of Herdman’s age, he was at a “moderately high risk of repeating” a
violent offense like the one at issue here. Herdman did not
contemporaneously object to this testimony.
Herdman did, however, object when the prosecutor asked the
bond examiner questions regarding Herdman’s “relationship
instability” score on the risk assessment. At this point, the court
reiterated that the significant time period was the date of the
offense and stated, “I trust this witness is going to make an effort to
connect his evaluation to that time period. If he doesn’t, you can
On cross-examination, however, the bond examiner conceded
that none of what he had described related back to Herdman’s
mental condition at the time of this offense:
Well, this risk assessment that I did wasn’t
designed to be analyzing his mental state at the time of the offense. It was designed to be a recommendation concerning what was going to happen to him at that particular time that I did the assessment. . . .
Now a lot of risk factors that I reviewed did refer to a historical fact. Some of them went back years and years. But they weren’t specifically referenced to the time of the offense.
The next day, Herdman moved to strike the bond examiner’s
testimony, arguing that the testimony “had really nothing to do with
Mr. Herdman’s state of mind at the time of the offense,” which the
bond examiner had, in fact, conceded. Herdman further asserted
that the bond examiner’s testimony “was offered to show more of
character evidence against Mr. Herdman than it was to offer what
his state of mind was on July 31.” The court, however, denied the
motion to strike. Although the court apparently agreed that the
testimony was irrelevant, it found that “the cross-examination
where the witness acknowledged that he was unable to connect it
back to July 31, 2003, is in itself a sufficient remedy.”
We conclude that the trial court erred in admitting the bond
examiner’s testimony. As Herdman asserts, the examiner conceded
that his risk assessment was not designed to analyze Herdman’s
mental state at the time of the offense and that the risk factors did
not reference the time of the offense. The relationship of the
examiner’s testimony to the time of the offense, however, was the
sole basis on which the court admitted this evidence. Accordingly,
this evidence was irrelevant, should not have been admitted in the
first instance, and should have been stricken on Herdman’s motion.
The question thus becomes whether the erroneous admission
of this testimony was harmless. Although we perceive this issue as
close, for two reasons we conclude that it was.
First, we note that most of the bond examiner’s testimony was
cumulative to that of the other experts. Moreover, the court gave a
limiting instruction, advising the jury that any mental condition
evidence that it heard was relevant only to Herdman’s mental
condition on the date of the offense at issue, and we must presume
that the jury followed the court’s instruction and thus discounted
the bond examiner’s testimony accordingly. See Marsh
, ___ P.3d at
Second, although we are troubled by the bond examiner’s
references to his “risk assessment” and by his conclusion that
Herdman presented a moderate risk of repeating a violent offense
like the one at issue, these references were fleeting and
unexplained, and they comprised a very small part of otherwise
lengthy testimony. Moreover, these references were arguably
consistent with other expert testimony that the jury properly heard
(e.g., the testimony concerning Herdman’s psychopathy), and the
prosecution did not mention this testimony again, including in its
For these reasons, we conclude that the improper admission of
the bond examiner’s testimony does not warrant reversal.
Herdman next contends that the trial court reversibly erred in
allowing Sergeant Gallegos to testify that (1) Herdman did not serve
in Iraq; (2) he did not have PTSD; and (3) his behavior after his
return from overseas was “rebellious.” We disagree.
Herdman asserts that the trial court erred in allowing
Sergeant Gallegos to testify that Herdman had never been in Iraq
because (1) such testimony was not previously disclosed, in
violation of the applicable discovery rules, and (2) it was hearsay.
We perceive no prejudice from any discovery violation. Moreover,
although we agree that the testimony was inadmissible hearsay, we
Sergeant Gallegos testified that he knew that Herdman had
not served in Iraq because his battalion sergeant major told him
that. Herdman objected to this testimony, contending that the
prosecution had not disclosed this testimony and that it was
hearsay. The trial court found no discovery violation, because
Herdman’s counsel had interviewed Sergeant Gallegos before trial.
It also rejected Herdman’s hearsay objection on the ground that the
testimony was admissible under the business record exception to
the hearsay rule, CRE 803(6), notwithstanding the fact that
Sergeant Gallegos proffered no document in connection with this
With respect to the alleged discovery violation, assuming
without deciding that the prosecution was required to disclose this
testimony in advance, we perceive no prejudice. Herdman
introduced documentary evidence demonstrating his service in Iraq,
and he makes no argument as to what he would have done
differently had Sergeant Gallegos’ testimony been disclosed earlier.
With respect to the hearsay objection, we conclude that
Sergeant Gallegos’ testimony was clearly hearsay, because he
merely repeated what someone else had told him. CRE 801(c)
(defining “hearsay”). Moreover, the People concede, and we agree,
that the business record exception is inapplicable here, because
Sergeant Gallegos did not offer any business record on this point.
Accordingly, Sergeant Gallegos’ testimony that Herdman did not
serve in Iraq was inadmissible hearsay. CRE 802 (hearsay rule).
The question thus becomes whether the admission of this
hearsay testimony was harmless. We conclude that it was.
Although we acknowledge that Herdman has argued that false
testimony regarding military service in Iraq might have a particular
impact on an El Paso County jury (or, in our view, on any jury), in
this case Herdman presented substantial evidence, including
documentary evidence, of his service in Iraq, and Sergeant Gallegos’
contrary testimony appears to have stood alone. In these
circumstances, we cannot say that there is a reasonable probability
that the erroneous admission of this hearsay testimony contributed
Herdman further contends that Sergeant Gallegos’ testimony
that Herdman did not suffer from PTSD was (1) improper lay
opinion, in violation of CRE 701, and (2) improper testimony
regarding Herdman’s veracity on a particular occasion, in violation
of CRE 608(a). Herdman did not preserve either of these objections.
Accordingly, we review for plain error and perceive none.
Under CRE 701, lay witnesses may offer opinion testimony if
their opinions are rationally based on their perception, helpful to a
clear understanding of their testimony or the determination of a fact
in issue, and not based on scientific, technical, or other specialized
knowledge within the scope of CRE 702. Here, even if Sergeant
Gallegos’ testimony was improper lay opinion, we perceive no plain
error, because experts on both sides testified as to whether
Herdman suffered from PTSD, and most of Sergeant Gallegos’
testimony amounted to his personal observations of Herdman’s
conduct, which were the proper subject of lay testimony.
As to Herdman’s CRE 608(a) objection, we likewise perceive no
plain error. Sergeant Gallegos did not comment on Herdman’s
veracity on any specific occasion. Rather, as noted above, he
principally commented on conduct that he observed, which was
relevant to the prosecution’s theory that Herdman was malingering.
Herdman also contends that Sergeant Gallegos’ testimony that
Herdman’s conduct was rebellious was evidence of bad character,
the admission of which violated CRE 404. Herdman did not
preserve this objection, and again we perceive no plain error.
In our view, Sergeant Gallegos’ characterization of Herdman’s
conduct as “rebellious” was not obviously bad character evidence.
Moreover, the testimony at issue, when read in context, amounted
to commentary on behavior that Sergeant Gallegos personally
observed and that tended to support the prosecution’s theory of
For these reasons, we perceive no reversible error in the
admission of those portions of Sergeant Gallegos’ testimony that are
Herdman next asserts that, taken together, the foregoing
errors warrant reversal. We are not persuaded.
“We will reverse for cumulative error only where, although
numerous trial errors individually have been found harmless, in the
aggregate those errors prejudiced the defendant’s substantial rights
and deprived him or her of a fair trial.” People v. Douglas
2012 COA 57, ¶ 71. The doctrine of cumulative error requires that
numerous errors be committed, not merely alleged. People v.
, 727 P.2d 394, 401 (Colo. App. 1986).
Here, we have not identified numerous trial errors. Nor can
we say that the errors that we have identified, when considered in
the aggregate, prejudiced Herdman’s substantial rights and
deprived him of a fair trial. This is especially true here, where the
errors that we have identified were not related to one another. See
State v. Martinez
, 236 P.3d 481, 499 (Kan. 2010) (concluding that
the combination of two unrelated harmless errors was not so
prejudicial as to deny the defendant a fair trial).
Accordingly, we conclude that the cumulative effect of any trial
errors here does not require reversal of Herdman’s convictions.
Herdman next contends that the evidence presented was
insufficient to support his convictions for sexual assault and the
crime of violence sentence enhancer, because, he says, there was
no evidence that he used a deadly weapon to cause submission of
“When assessing the sufficiency of the evidence in support of a
guilty verdict, a reviewing court must determine whether any
rational trier of fact might accept the evidence, taken as a whole
and in the light most favorable to the prosecution, as sufficient to
support a finding of the accused’s guilt beyond a reasonable doubt.”
People v. Sprouse
, 983 P.2d 771, 777 (Colo. 1999).
As pertinent here, sexual assault is a class 2 felony if the
defendant is “armed with a deadly weapon . . . and uses the deadly
weapon . . . to cause submission of the victim.” § 18-3-402(5)(a)(III),
C.R.S. 2011. Similarly, a sexual assault like that at issue here is a
crime of violence when, during or in immediate flight from the
assault, the defendant “[u]sed, or possessed and threatened the use
of, a deadly weapon.” § 18-1.3-406(2)(a)(I)(A), C.R.S. 2011.
At trial, the prosecution presented evidence that Herdman
showed the victim his knife, threatened to cut her if she did not do
as he said, ordered her to an apartment, put the knife beside the
bed where she could see it, and then sexually assaulted her.
We conclude that such evidence was more than sufficient to
allow a reasonable jury to conclude that Herdman used, possessed,
or threatened to use a deadly weapon and that he then used the
weapon to cause the victim’s submission to the sexual assault. See
People v. Hines
, 780 P.2d 556, 559 (Colo. 1989) (holding that “use”
of a deadly weapon, for purposes of felony menacing, “is broad
enough to include the act of holding the weapon in the presence of
another in a manner that causes the other person to fear for his
Herdman contends that his sex assault conviction must merge
into his kidnapping conviction because the former is a lesser
included offense of the latter. We again disagree.
Herdman’s argument rests on the premises that (1) a
defendant’s sentence for second degree kidnapping is enhanced
when the person kidnapped is a victim of, among other offenses, a
sexual assault, § 18-3-302(3)(a), C.R.S. 2011, and (2) a sentence
enhancer like this is a substantive element of an offense.
Contrary to Herdman’s argument, our supreme court has
recently rejected the contention that a sentence enhancer is a
substantive element of an offense for purposes of double jeopardy
analysis. See People v. Simon
, 266 P.3d 1099, 1109 (Colo. 2011).
Accordingly, Herdman’s double jeopardy argument fails.
Finally, Herdman contends, the People concede, and we agree
that the mittimus must be corrected to reflect a sentence of eight
years for kidnapping, not eight years to life. We further agree with
the People that the references in the mittimus to “mandatory
parole” and “5-19-08 20 years to life parole” should be stricken and
that the mittimus should be corrected to provide that parole is
determined under section 18-1.3-1006(1)(b), C.R.S. 2011. See
People v. Tucker
, 194 P.3d 503, 504 (Colo. App. 2008).
Herdman also contends that the mittimus must be corrected
to reflect 1,021 days of presentence confinement credit. The People
respond that we should remand this issue for a hearing because,
with Herdman serving sentences in both Colorado and New York,
the trial court took under advisement the issue of the precise
number of days of presentence confinement credit to which
Herdman was entitled but then never addressed that issue.
Because the question of presentence confinement may require
further factual development, we agree with the People that a
remand on this issue is necessary and appropriate. See People v.
, 179 P.3d 129, 134 (Colo. App. 2007) (remanding to the
trial court for a determination as to whether the defendant was
entitled to additional presentence confinement credit), aff’d
203 P.3d 513 (Colo. 2009). We leave to the trial court’s discretion
how best to proceed to determine the presentence confinement
For these reasons, the judgment is affirmed, and the case is
remanded for correction of the mittimus and determination of the
proper amount of presentence confinement credit to which
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