People v. Thompson

COLORADO COURT OF APPEALS 2017COA56

Court of Appeals No. 09CA2784
Arapahoe County District Court No. 07CR1483
Honorable Valeria N. Spencer, Judge
Honorable William B. Sylvester, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Aaron Duane Thompson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE BERNARD
Webb, J., concurs in part and specially concurs in part
Dunn, J., concurs in part and dissents in part

Announced May 4, 2017

Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Keyonyu X. O’Connell, Alternate Defense Counsel, Denver, Colorado; Lynn C.
Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 This appeal poses a question of first impression in Colorado:

Do indigent defendants in criminal cases have (1) a constitutional

right to be represented by private counsel who are willing to

represent them without cost; and simultaneously (2) a

constitutional right to receive state-funded ancillary services, such

as investigators and experts? Defendant asserts that the trial court

denied his Sixth Amendment right to the counsel of his choice when

it decided that an attorney who offered to represent him without

pay would not be entitled to receive state funds to obtain ancillary

services. The court, instead, appointed the public defenders.

¶2 This question is hard enough to answer because it requires

plotting the intersection of cases that discuss the right to counsel of

choice with cases that discuss an indigent defendant’s right to

obtain state-funded ancillary services. But the question becomes

harder to answer because we must also consider whether a

Colorado Supreme Court case that describes what happens at that

intersection is contrary to cases that the United States Supreme

Court has decided. And finding an answer becomes harder still

because we must also evaluate what effect a Chief Justice Directive

had on the intersection.

1
¶3 It is a testament to the complexity of this question that the

three judges who sat on this case found three different ways to

answer it. Two of us answer the question differently, but we both

believe that the answer leads us to affirm defendant’s conviction.

The remaining judge provides a third answer, and she would

reverse the conviction.

¶4 A grand jury indicted defendant, Aaron Duane Thompson, for

numerous charges related to the disappearance and presumed

death of his six-year-old daughter, A.T. The prosecution also

charged defendant with multiple instances of having physically

abused every other child who lived in his home.

¶5 At the end of his trial, the jury convicted him of most of the

charges. He appeals. We affirm.

I. Background

¶6 Defendant lived with: his girlfriend, Shely Lowe; her five

children, K.S., T.L., A.L., E.W.J., and K.W.; his two children, A.T.J.

and A.T.; and her half-brother, R.R. In November 2005, defendant

called the police to report that A.T. had run away from home after

an argument over a cookie. The police initiated an extensive search

for A.T. that proved to be fruitless.

2
¶7 During the investigation, officers spoke with Eric Williams, Sr.,

Ms. Lowe’s ex-boyfriend and the father of two of her children. He

told the police that, about a year before defendant had reported A.T.

missing, Ms. Lowe told him that A.T. had suddenly died one evening

in the bathtub. Ms. Lowe told Mr. Williams that she and defendant

had buried the child “far away.”

¶8 The police also spoke with Ms. Lowe’s close friend, Tabitha

Graves. Ms. Graves described a conversation with Ms. Lowe

approximately one year before defendant reported A.T. missing in

which Ms. Lowe said that she had found A.T. dead in the child’s bed

one morning. Ms. Lowe explained that defendant had removed the

child’s body from their home and that they were trying to concoct a

plan to cover up A.T.’s death.

¶9 Officers then questioned the other children in the household.

They initially told similar stories that went as follows: They had

seen A.T. at home earlier on the day that she ran away. They

parroted various details about A.T., including her favorite food, her

favorite color, and her most recent Halloween costume.

3
¶ 10 But the officers’ questioning turned up more than mundane

details. For example, the children said that defendant and Ms.

Lowe disciplined them with “whoopins.”

¶ 11 The officers contacted social services, and case workers placed

the children with foster families. Once they were in different

environments, the children gradually began to disclose details

about physical abuse that they had endured. They explained that

A.T. had not been in the home for some time before defendant

reported her missing — evidence at trial indicated that the girl may

have been gone for as long as two years — and that defendant and

Ms. Lowe had told them to lie to the police about A.T.

¶ 12 A grand jury indicted defendant on sixty charges, including

child abuse resulting in death, false reporting, abuse of a corpse,

assault, contributing to the delinquency of a minor, child abuse,

conspiracy, and accessory. (The grand jury did not indict Ms. Lowe

because she had died of natural causes during the investigation.)

¶ 13 The trial jury convicted defendant of most of the charges,

including child abuse resulting in death, child abuse, assault, false

reporting, concealing the child’s death, contributing to the

delinquency of a minor, and conspiracy.

4
¶ 14 The trial court sentenced defendant to a twelve-year jail

sentence, to be followed by 102 years in prison.

II. The Trial Court Did Not Violate Defendant’s Sixth Amendment
Right to Counsel of Choice

A. Background

¶ 15 Shortly after the grand jury indicted him, defendant appeared

before the trial court with an attorney, David Lane. Mr. Lane said

that he had represented defendant for “about two years” as

“retained counsel.” But defendant was indigent, and Mr. Lane

thought that he would “qualify for court-appointed counsel.” Mr.

Lane made clear that he was “willing to continue” to represent

defendant as “retained counsel.” Although defendant wanted Mr.

Lane “to represent him,” he could not pay for ancillary services,

such as “an investigator” or “various experts in various fields.” Mr.

Lane added that the Constitution obligated the trial court to provide

such ancillary services to indigent defendants at state expense.

¶ 16 Mr. Lane asserted that defendant was being forced to choose

between two constitutional rights: the right to counsel of choice and

the right to receive ancillary services at state expense. He said that

a Colorado Supreme Court case, People v. Cardenas, 62 P.3d 621

5
 (Colo. 2002), had forced defendant into making this choice, and

that this Colorado case clashed with a more recent United States

Supreme Court case, United States v. Gonzalez-Lopez, 548 U.S. 140

(2006). Mr. Lane then said that the court should allow him to

continue to represent defendant and that it should also agree to pay

state funds for any ancillary services that defendant might require.

¶ 17 The trial court declined Mr. Lane’s invitation to “overrule”

Cardenas. Mr. Lane then said that defendant could not get a fair

trial without ancillary services. So, he was therefore forced to “step

aside” and to ask the court to appoint the public defenders to

represent defendant. He registered defendant’s objection to his

being forced to leave the case, citing the Sixth Amendment, the

Fourteenth Amendment, and “analogous provisions of the Colorado

Constitution.”

¶ 18 The trial court promptly appointed the public defenders as

defendant’s attorneys, and Mr. Lane’s connection with this case

ended.

B. Defendant’s Contentions

¶ 19 Defendant contends that the trial court denied him his Sixth

Amendment right to his counsel of choice. It did so when it decided

6
 that it would not end-run Cardenas and authorize Mr. Lane, acting

as defendant’s retained counsel, to receive state-funded ancillary

services in the course of representing defendant.

¶ 20 As far as this issue is concerned, we find ourselves at an

unusual divide for a three-judge panel. Judge Webb “take[s] no

position” on the analysis that the reader is about to encounter, but

he concurs with the decision to affirm defendant’s convictions.

Judge Dunn dissents from this part of the opinion.

¶ 21 After examining the constitutional issues that were preserved

in the trial court and have been addressed by defendant and the

prosecution on appeal, I conclude that (1) the court did not abridge

defendant’s constitutional right to counsel of choice; and (2) any

error that the court may have committed was harmless when, in the

absence of a request from Mr. Lane, it did not sua sponte apply a

Chief Justice Directive that addressed when a court could provide

state-funded ancillary services to indigent defendants who were

represented by pro bono counsel.

C. Right to Counsel of Choice

¶ 22 Defendant’s appellate contentions proceed in three steps.

Although he cites a variety of authority in support of all three steps,

7
 one or two United States Supreme Court cases form the foundation

for each one.

¶ 23 The first step asserts that defendant had “a right to continued

representation” by Mr. Lane. This step relies on cases such as

Gonzalez-Lopez, 548 U.S. at 140, and Caplin & Drysdale, Chartered

v. United States, 491 U.S. 617 (1989).

¶ 24 The second step submits that the trial court violated this right

when it declined to rule on Mr. Lane’s “request for ancillary

services.” This step focuses on Ake v. Oklahoma, 470 U.S. 68

(1985).

¶ 25 The third step claims that, by requiring defendant to be

represented by the public defender in order to obtain those ancillary

services, the trial court improperly placed defendant on the horns of

a constitutional dilemma: It forced him to choose between his right

to be represented by Mr. Lane, his counsel of choice, and his right

to present his defense, via the ancillary services that Mr. Lane

sought. This step is based on Simmons v. United States, 390 U.S.

377 (1968).

¶ 26 As I will explain below, these United States Supreme Court

decisions do not support defendant’s three-step analysis. I instead

8
 think that the Supreme Court has limited the constitutional right to

counsel of choice and the constitutional right to obtain ancillary

services at state expense in a way that knits those rights together:

Indigent defendants do not have a constitutional right to use state

funds to pay for attorneys or for ancillary services of their choosing.

¶ 27 Cardenas faithfully implemented this shared limitation by

requiring that defendants who require state-funded ancillary

services be represented by public defenders. Applying Cardenas, I

conclude that defendant only had a right to state-funded ancillary

services if the public defender or court-appointed alternate defense

counsel represented him. I further conclude that the trial court did

not wrongfully deny defendant’s constitutional right to counsel of

choice when it declined Mr. Lane’s invitation to depart from

Cardenas.

¶ 28 To be sure, Chief Justice Directive 04-04, Appointment of

State-Funded Counsel in Criminal Cases and for Contempt of

Court, § V(D) (amended Nov. 2014)(formerly § IV(D)), would have

allowed the trial court to pay for support services for a defendant

who is represented by private counsel. The trial court did not

consider the Directive when it decided to appoint the public

9
 defenders. And Mr. Lane did not ask the court to do so. Be that as

it may, I conclude that any error that the court may have made

when it did not consider the Directive was harmless.

¶ 29 I begin my analysis by explaining Cardenas.

1. Cardenas

¶ 30 A pro bono attorney represented the indigent defendant in

Cardenas. 62 P.3d at 622. The attorney asked the trial court to

appoint, at state expense, an interpreter to help her talk with the

defendant, who did not speak English, in order to investigate the

circumstances surrounding his guilty plea. Id. The court declined.

¶ 31 Our supreme court upheld the trial court’s decision. The

court first observed that, although “an indigent defendant has the

right to legal representation and supporting services at state

expense, he does not have the right to pick the attorney of his

choice.” Id. at 623.

¶ 32 The court next concluded that, if the defendant had wanted

“the state to pay the costs of his attorney and supporting services,

his only choice is to be represented by the public defender, or in the

case of a conflict, a state-appointed alternate defense counsel.” Id.

The court supported this conclusion by analyzing several statutes

10
 governing the office of the state public defender. See id. at 622-23.

Its analysis yielded the conclusion that the legislature had

established such a requirement. See id.

¶ 33 Last, the court observed that, although the defendant had the

“right to be represented by” the pro bono attorney, “the state [was]

not obliged to pay the costs of that representation.” Id. at 623.

¶ 34 I now turn to explaining why I think that the United States

Supreme Court cases upon which defendant relies have expressed a

shared limitation on the right to counsel of choice and on the right

to ancillary services that supports — rather than undercuts —

Cardenas. The first stop on that road is to discuss the right to

counsel of choice.

2. Gonzalez-Lopez and Caplin & Drysdale

¶ 35 The right to counsel of one’s choice is “circumscribed in

several important respects.” Wheat v. United States, 486 U.S. 153,

159 (1988). The “important respect[]” that circumscribes the right

in this case is that “a defendant may not insist on representation by

an attorney he cannot afford . . . .” Id. In other words, “the right to

counsel of choice does not extend to defendants who require

counsel to be appointed for them.” Gonzalez-Lopez, 548 U.S. at

11
 151; accord People v. Coria, 937 P.2d 386, 389 (Colo. 1997)(An

indigent defendant has a constitutional right to counsel in a

criminal case, “but not an absolute right to demand a particular

attorney.”).

¶ 36 But, once a court violates a defendant’s right to counsel of

choice, that error is not subject to harmless error analysis.

Gonzalez-Lopez, 548 U.S. at 148-50, 152; accord Anaya v. People,

764 P.2d 779, 782-83 (Colo. 1988).

¶ 37 Turning to this case, it is true that the United States Supreme

Court has, at least twice, said that “the Sixth Amendment

guarantees a defendant the right to be represented by an otherwise

qualified attorney whom that defendant can afford to hire, or who is

willing to represent the defendant even though he is without funds.”

Gonzalez-Lopez, 548 U.S. at 144 (quoting Caplin & Drysdale, 491

U.S. at 624-25).

¶ 38 But this truth is limited in a very important way. Neither

Gonzalez-Lopez nor Caplin & Drysdale cited Ake, a case that I

examine in more detail below. And neither case discussed whether

an indigent defendant who had an attorney willing to represent him

12
 at no cost also had the right to require the state to pay for ancillary

services.

¶ 39 Caplin & Drysdale gives us a tantalizingly strong hint of how

the Supreme Court would decide that issue: “Whatever the full

extent of the Sixth Amendment’s protection of one’s right to retain

counsel of his choosing, that protection does not go beyond ‘the

individual’s right to spend his own money to obtain the advice and

assistance of . . . counsel.’” 491 U.S. at 626 (emphasis

added)(quoting Walters v. Nat’l Ass’n of Radiation Survivors, 473

U.S. 305, 370 (1985)(Stevens, J., dissenting)). Indeed, “[a]

defendant has no Sixth Amendment right to spend another person’s

money for services rendered by an attorney, even if those funds are

the only way that that defendant will be able to retain the attorney

of his choice.” Id. (emphasis added).

¶ 40 I read this language from Caplin & Drysdale to mean that,

although defendants’ Sixth Amendment right to counsel of choice

includes attorneys who are willing to represent them even though

the defendants lack funds, Gonzalez-Lopez, 548 U.S. at 145, the

right does not extend to indigent defendants who require courts to

spend public funds to pay for their ancillary services.

13
¶ 41 The next stop in my reasoning is to discuss the right to

ancillary services, which supports my reading of the language from

Caplin & Drysdale.

3. Ake

¶ 42 Ake held that, if an indigent defendant “demonstrates . . . that

his sanity at the time of the offense is to be a significant factor at

trial,” then the state must, “at a minimum, assure the defendant

access to a competent psychiatrist,” who could “conduct an

appropriate examination and assist in evaluation, preparation, and

presentation of the defense.” 470 U.S. at 83. The Supreme Court

qualified this holding in two important ways.

¶ 43 First, it made clear that an indigent defendant did not have a

constitutional right “to receive [state] funds to hire his own”

psychiatrist. Id. (emphasis added). This qualification supports my

reading of Caplin & Drysdale, and it therefore cuts defendant’s

contention to the bone.

¶ 44 Second, it ceded “the decision on how to implement this right”

to the states. Id. And Cardenas is Colorado’s implementation of

the right.

14
¶ 45 Relying partly on Ake, our supreme court observed that the

“Fourteenth Amendment . . . imposes upon the state the obligation

to provide an indigent defendant with those basic instruments and

services essential to his or her right to adequately defend against a

criminal charge.” People v. Nord, 790 P.2d 311, 315 (Colo. 1990).

¶ 46 I must now take a detour to explain why Simmons, the

foundation for the third step in defendant’s contention, does not

bear the weight that he puts on it.

4. Simmons

¶ 47 Defendant relies on Simmons for the proposition that it is

“intolerable that one constitutional right should have to be

surrendered in order to assert another.” 390 U.S. at 394. But

Simmons, too, has been qualified.

¶ 48 First, the Simmons Court limited the scope of its decision by

immediately preceding the language quoted above with the

statement “[i]n these circumstances.” Id. The circumstances were

as follows: The defendant in Simmons had to testify in support of

his Fourth Amendment motion to suppress evidence to establish

that he had standing, but the prosecution could then use this

testimony against him in any subsequent trial. See id. at 391-93.

15
 Of course, this situation created a Sophie’s Choice: If the defendant

did not want the prosecution to use his motions hearing testimony

at trial, he would have to give up his Fourth Amendment right to

challenge the search; if he wanted to establish that he had standing

for purposes of his Fourth Amendment motion, he had to give up

his Fifth Amendment right for the purposes of his trial. Id. at 391,

393-94.

¶ 49 Second, the Supreme Court has not extended Simmons very

far in criminal cases. See United States v. Kahan, 415 U.S. 239,

242-43 (1974)(Supreme Court reserved ruling on whether it should

extend Simmons to Sixth Amendment claims for appointed counsel);

United States v. Gravatt, 868 F.2d 585, 590 n.9 (3d Cir.

1989)(same); see also United States v. Snipes, 611 F.3d 855, 866

(11th Cir. 2010)(“Simmons has never been extended beyond its

context.”); United States v. Taylor, 975 F.2d 402, 404 (7th Cir.

1992)(“Efforts to extend the scope of Simmons have not fared well.”);

In re Fed. Grand Jury Procedures (FGJ 91-9), Cohen, 975 F.2d 1488,

1493 (11th Cir. 1992)(“Given the narrow reading the Supreme

Court has given” Simmons, “we decline to read Simmons” more

broadly.).

16
¶ 50 (Our supreme court has only relied on this part of Simmons —

a separate part discusses photographic identification procedures —

in cases involving the testimony of a defendant or of a defendant’s

expert. See, e.g., Perez v. People, 745 P.2d 650, 653 (Colo. 1987);

People v. Chavez, 621 P.2d 1362, 1365 (Colo. 1981).)

¶ 51 Third, I submit that it is, at the very least, unclear whether

Simmons is still viable in this regard, and, if so, how far its reach

extends. Just three years after deciding Simmons, the Supreme

Court explained in McGautha v. California, 402 U.S. 183, 212-13

(1971), vacated in part on other grounds sub nom. Crampton v. Ohio,

408 U.S. 941 (1972), that, “to the extent that [Simmons’] rationale

was based on a ‘tension’ between constitutional rights and the

policies behind them, the validity of that reasoning must now be

regarded as open to question . . . .” This rationale was “open to

question” because “[t]he criminal process . . . is replete with

situations requiring ‘the making of difficult judgments’ as to which

course to follow.” Id. at 213 (quoting McMann v. Richardson, 397

U.S. 759, 769 (1970)).

¶ 52 Simply put, even if a defendant has a constitutional right “to

follow whichever course he chooses, the Constitution does not by

17
 that token always forbid requiring him to choose.” Id. “The

threshold question is,” instead, “whether compelling the election

impairs to an appreciable extent any of the policies behind the

rights involved.” Id.; see also Corbitt v. New Jersey, 439 U.S. 212,

219 n.8 (1978)(citing McGautha with approval); Chaffin v.

Stynchcombe, 412 U.S. 17, 30 (1973)(The Constitution does not

forbid “every government-imposed choice in the criminal process

that has the effect of discouraging the exercise of constitutional

rights.”).

¶ 53 Given all of this, “[a]lthough Simmons has not been overruled,

the Supreme Court . . . questioned its logic” in McGautha. United

States v. Rosalez, 711 F.3d 1194, 1214 n.6 (10th Cir. 2013). And

more recent cases have recognized that defendants in criminal

cases will sometimes have to make hard choices concerning

constitutional rights.

¶ 54 But must I conclude that the premise underlying Simmons is

unsound to conclude that Simmons does not apply this case? No,

because the premise itself does not apply. It rested on the tension

between the defendant’s Fourth and Fifth Amendment rights based

on potentially incriminating uses of his suppression hearing

18
 testimony at trial. See Simmons, 390 U.S. at 393-94. By its own

terms, Simmons limited its reach to “these circumstances.” Id. at

394. This case pivots on the Sixth Amendment instead of on the

Fourth and Fifth Amendments, and it does not involve a potentially

prejudicial use of a defendant’s testimony.

¶ 55 Neither the United States Supreme Court nor our supreme

court has subsequently stretched Simmons beyond those

testimonial circumstances to situations such as those we face in

this case. I would decline defendant’s invitation to do so. See

Snipes, 611 F.3d at 866.

¶ 56 But, even if I were to think that Simmons applied to this case, I

do not believe that defendant faced an “intolerable” choice of

surrendering one constitutional right to assert another. See

Simmons, 390 U.S. at 394. According to Ake, defendant did not

have “a constitutional right . . . to receive funds to hire his own”

experts. 470 U.S. at 83. So defendant was never faced with a

choice between two constitutional rights. And, as McGautha made

clear, “[t]he criminal process . . . is replete with situations requiring

‘the making of difficult judgments’ as to which course to follow,” so

Simmons’ “rationale [that] was based on a ‘tension’ between

19
 constitutional rights and the policies behind them . . . must now be

regarded as open to question . . . .” McGautha, 402 U.S. at 212-13.

¶ 57 Yes, defendant may have faced a choice between

representation by Mr. Lane without any state-funded ancillary

services and representation by the public defenders’ office with

such services. But I do not think that choice was intolerable or

unfair. See id.; see also Chaffin, 412 U.S. at 30. And the choice did

not impair the policies behind defendant’s right to counsel of choice

and his right to obtain ancillary services, see McGautha, 402 U.S. at

212-13, because (1) he did not have a Sixth Amendment right to

spend another person’s — or the state’s — money to obtain

ancillary services, see Caplin & Drysdale, 491 U.S. at 626; and

(2) he did not have “a constitutional right . . . to receive funds to

hire his own [experts],” Ake, 470 U.S. at 83.

¶ 58 As I recognized above, the United States Supreme Court cases

upon which defendant relies have not discussed the right to counsel

of choice and the right to ancillary services together. But some

other courts have done so. Let us take a look at them.

20
 5. Cases From Other Jurisdictions

a. Cases That Support My Analysis

¶ 59 Much like our supreme court in Cardenas, the Maryland

Court of Appeals, that state’s highest court, held that the public

defenders’ services, including access to ancillary services, were not

severable. Indigent defendants were required to accept them as a

“package” or forgo them completely. Moore v. State, 889 A.2d 325,

345-46 (Md. 2005). This arrangement did not violate the

defendants’ constitutional rights to counsel or to obtain ancillary

services. Id. at 346.

¶ 60 In an earlier case, applying similar reasoning, the Maryland

Court of Appeals concluded that an indigent defendant who was

represented by a pro bono attorney was not entitled to a transcript

at state expense because the public defender had not represented

him. State v. Miller, 651 A.2d 845, 853 (Md. 1994).

¶ 61 In Miller v. Smith, 115 F.3d 1136, 1143-44 (4th Cir. 1997), the

Fourth Circuit Court of Appeals held that Maryland’s requirement

that a defendant accept the public defender’s representation in

order to gain access to state-funded ancillary services had not

21
 violated the defendant’s Sixth Amendment right to counsel of

choice.

¶ 62 In State v. Earl, 345 P.3d 1153, 1155 (Utah 2015), an indigent

defendant, who was represented by private counsel, filed a motion

that asked the state to pay for ancillary services. The trial court

refused, relying on Utah’s statutes governing publicly funded

counsel for indigents. Id. Those statutes, much like Colorado’s,

“generally condition[ed] an indigent defendant’s eligibility for

[ancillary services] on the retention of publicly funded counsel.” Id.

¶ 63 On appeal, the defendant cited Ake and contended that her

ability to obtain state-funded ancillary services should not be

conditioned on a “public[ly] appointed lawyer.” Id. at 1158. The

Utah Supreme Court disagreed.

The constitutional right to counsel
encompasses the prerogative of choosing
counsel of one’s choice and of receiving
resources necessary to an adequate defense.
Such rights are qualified ones, however,
affected by the “avenues which [the defendant]
chose not to follow as well as those [she] now
seeks to widen.” When a defendant elects an
avenue that steers away from the public
representation provided by the government,
she has received the private counsel of her
choice and has no constitutional right to

22
 defense resources from a secondary source
backed by government funding.

Id. (emphasis added)(citations omitted). The court later added that

“[a] defendant who opts out of public representation has also opted

out of public defense resources, and nothing in the Constitution

requires a different result.” Id. at 1159.

¶ 64 I am persuaded by these cases because they incorporate the

two qualifications that Ake placed on the right to obtain a

state-funded psychiatrist. The courts in the Maryland and Utah

cases specifically recognized these qualifications, and they relied on

them in their opinions.

 In Moore, the Maryland Court of Appeals observed that,

“while a State might provide funds enabling indigent

defendants with retained counsel to hire experts of their

own choosing, Ake does not require this approach.”

Moore, 889 A.2d at 343 (emphasis added).

 The Utah Supreme Court noted that “[t]he United States

Supreme Court . . . has not prescribed a single orthodoxy

for the provision of the defense resources required by the

Sixth Amendment.” Earl, 345 P.3d at 1158. Utah’s

23
 legislature, like Colorado’s, “has chosen to couple the

availability of defense resources with the retention of

government-funded counsel.” Id. As a result, an

indigent defendant in Utah, like an indigent defendant in

Colorado, “has every right to decline the counsel the

government offers in favor of the one she prefers, but in

so doing, she loses the right to a publicly funded

defense.” Id.

b. Cases That Support Defendant’s Analysis

¶ 65 State v. Brown, 134 P.3d 753, 759 (N.M. 2006), held that

(1) “an indigent defendant represented by pro bono counsel[] is

entitled both to the constitutional right to counsel and the

constitutional right to be provided with the basic tools of an

adequate defense”; and so (2) “indigent defendants represented by

pro bono, contract, or [state public defender] counsel should have

equal access to expert witness funding, provided that the expert

witness meets all of the standards promulgated by” the state public

defender.

¶ 66 The defendant in State v. Wang, 92 A.3d 220, 226 (Conn.

2014), represented himself. The Connecticut Supreme Court

24
 concluded that “due process . . . requires the state to provide an

indigent self-represented criminal defendant with expert or

investigative assistance when he makes a threshold showing that

such assistance is reasonably necessary for” his defense. Id.

¶ 67 I am not persuaded by these two cases for a couple of reasons.

¶ 68 First, Brown did not discuss the two qualifications that Ake

placed on the exercise of the right to state-funded psychiatric

assistance. Wang called them “dicta.” 92 A.3d at 232 n.19. That

may or may not be accurate.

¶ 69 The first sentence in the paragraph where the two

qualifications appear — and that created the right to ancillary

services — begins with the phrase, “[w]e therefore hold . . . .” Ake,

470 U.S. at 83. The qualifications appear in the sentence

immediately after the first one, and it begins with the phrase, “[t]his

is not to say . . . .” Id. This cheek-by-jowl juxtaposition of a right

and the limitations on that right looks like a holding to me. And I

think that we ignore the Supreme Court’s entire holding —

including the limitations on that holding — at our peril.

¶ 70 Second, both Brown and Wang relied on Simmons. See Wang,

92 A.3d at 231; Brown, 134 P.3d at 756. Wang placed a judicial

25
 gloss on Ake by interpreting it to “reasonably limit the right to

expert assistance, . . . not to permit a state to impose a choice

between two constitutional rights that are not mutually exclusive.”

92 A.3d at 232 n.19. As I have explained above, I do not think that

Simmons supports such a conclusion for a variety of reasons.

¶ 71 I next synthesize the conclusions that I have reached.

6. Gonzalez-Lopez & Caplin & Drysdale + Ake - Simmons
= Cardenas

¶ 72 My chain of reasoning in reaching the conclusion that the trial

court did not violate defendant’s right to counsel of choice goes like

this:

 Defendant was indigent, so, although he had the right to

counsel, he did not have the right to choose his counsel,

and he did not have the right to require the state to pay

for ancillary services. See Gonzalez-Lopez, 548 U.S. at

150-51; Coria, 937 P.2d at 389.

 Because he was indigent, he did not have a constitutional

right “to receive [state] funds to hire his own” investigator

and experts. Ake, 470 U.S. at 83.

26
 Our supreme court implemented the right to ancillary

services in Cardenas. See Ake, 470 U.S. at 83.

 By following Cardenas and by appointing the public

defender to represent defendant, the trial court

implemented his right to counsel and his right to

ancillary services.

 Simmons does not apply in these circumstances, but,

even if it did, it would not lead me to the conclusion that

the trial court created an intolerable tension between

defendant’s right to counsel and his right to ancillary

services. I conclude instead that the choice that

defendant faced — between Mr. Lane and the public

defenders — was one of those difficult, but constitutional,

choices that defendants sometimes face in the criminal

justice system. See Chaffin, 412 U.S. at 30; McGautha,

402 U.S. at 213.

 The court therefore did not wrongfully deny defendant his

right to counsel of choice when it declined Mr. Lane’s

request to continue to represent him, conditioned on the

state’s payment for an investigator and various experts.

27
  And, because defendant’s right to counsel of choice was

not wrongfully denied, we are not automatically required

to reverse his conviction. Contra Gonzalez-Lopez, 548

U.S. at 148, 152; Anaya, 764 P.2d at 782-83.

¶ 73 But, as defendant points out, the trial court did not follow the

Chief Justice Directive. What should we do about that?

D. The Chief Justice Directive

¶ 74 “Chief Justice Directives represent an expression of Judicial

Department policy, to be given full force and effect in matters of

court administration.” People v. Orozco, 210 P.3d 472, 475 (Colo.

App. 2009). If the trial court had applied the Directive, it could have

authorized state funds to pay for ancillary services for defendant

while Mr. Lane continued to represent him. (I do not address the

issue, discussed in Judge Webb’s special concurrence, of whether

the Directive violates the separation of powers doctrine. The parties

did not raise it in the trial court or on appeal. See Moody v. People,

159 P.3d 611, 614-17 (Colo. 2007).)

¶ 75 Based on my preceding analysis, however, I do not think that

the trial court erred by implementing Cardenas and appointing the

public defender to represent defendant. But, even if the court had

28
 erred when it did not consider CJD 04-04 section V(D), that same

analysis shows that this error was not of constitutional dimension.

¶ 76 Everyone before us agrees that Mr. Lane did not even mention

the Directive to the trial court. See Hagos v. People, 2012 CO 63,

¶ 14 (appellate courts review unpreserved nonconstitutional errors

for plain error). Still, as Judge Dunn observes, an attorney

probably should not have to direct a court’s attention to a Chief

Justice Directive. But, in the end, we will reverse a conviction

because of an unpreserved nonconstitutional error only if the error

affected the defendant’s substantial rights. Crim. P. 52(b). To have

this effect, the error must have “substantially influenced the verdict

or affected the fairness of the trial proceedings,” Tevlin v. People,

715 P.2d 338, 342 (Colo. 1986), in a manner that casts “serious

doubt” over the “reliability of the judgment of conviction,” Scott v.

People, 2017 CO 16, ¶ 15.

¶ 77 Public defenders represented defendant throughout the

proceedings. Mr. Lane obviously thought that defendant was in

good hands because he told the trial court that, “in [his] estimation,

the Colorado Public Defenders are in fact the best criminal defense

lawyers in the United States of America.” The public defenders had

29
 access to the services of one or more investigators. They retained

experts to testify on defendant’s behalf. I therefore conclude that

the trial court’s putative nonconstitutional error was harmless

because it did not substantially influence the verdict or affect the

fairness of defendant’s trial.

¶ 78 In summary, defendant’s constitutional right to counsel and

his constitutional right to ancillary services were scrupulously

honored. The Constitution promised him no more than that.

III. Defendant’s Convictions for False Reporting and Conspiracy to
Commit False Reporting Were Not Barred by the Statute of
Limitations

¶ 79 After the prosecution rested, defendant moved for a judgment

of acquittal on the false reporting and conspiracy to commit false

reporting counts. He asserted that they were barred by the

applicable statute of limitations. After the trial court denied his

motion, the jury convicted him of both counts. He now contends

that the trial court erred. We disagree.

A. Statute of Limitations

¶ 80 We review de novo a trial court’s decision to deny a motion for

a judgment of acquittal. People v. Patton, 2016 COA 187, ¶ 7. In

doing so, we give the prosecution the benefit of every reasonable

30
 inference that might fairly be drawn from the evidence, both direct

and circumstantial. People v. Valdez, 2014 COA 125, ¶ 7. We also

review de novo statute of limitations claims. People v. Johnson,

2013 COA 122, ¶ 7.

B. Legal Principles

¶ 81 A person commits false reporting when he knowingly makes a

report to law enforcement officials “pretending to furnish

information relating to an offense or other incident within [law

enforcement’s] official concern when he . . . knows that [the]

information . . . is false.” § 18-8-111(1)(c), C.R.S. 2016. And a

person is guilty of conspiracy if, with the intent to facilitate or

promote its commission, he agrees with another person to engage in

criminal conduct or aid that person in the planning or commission

of the crime. § 18-2-201(1), C.R.S. 2016.

¶ 82 The statute of limitations for the prosecution of these crimes

was eighteen months, section 16-5-401(1)(a), C.R.S. 2016, and it

generally began to run when the crime was completed, or, in other

words, when all the substantive elements of the crime had been

satisfied. People v. Thoro Prods. Co., Inc., 70 P.3d 1188, 1192 (Colo.

2003); see also Blecha v. People, 962 P.2d 931, 938 (Colo.

31
 1998)(explaining that a conspiracy terminates when the objective of

the conspiracy is obtained).

C. Application

¶ 83 Defendant asserts that the crimes of false reporting and

conspiracy to commit false reporting began and ended with

defendant’s initial report to the police that A.T. was missing. This

report occurred a few days beyond the eighteen-month statute of

limitations. So defendant asserts that the statute of limitations had

run on those crimes.

¶ 84 We disagree because (1) the indictment did not charge

defendant with the initial false report; and (2) defendant made

misrepresentations to the police within the eighteen-month statute

of limitations period.

¶ 85 One of these misrepresentations that fell within the statute of

limitations occurred during a conversation that defendant had with

a police officer at a shoe store. The officer accompanied defendant

to the store so that defendant could identify a pair of shoes that he

had bought A.T. to “assist in the search” for her. Defendant pointed

out a pair of shoes that he said were the same style as the ones A.T.

had been wearing when she ran away. By identifying the shoes “to

32
 assist” the officer in the search for A.T., the jury could conclude

that defendant had furnished information to the police concerning

A.T.’s disappearance that he knew was false. See People v. Blue,

253 P.3d 1273, 1278 (Colo. App. 2011)(“The crime of false reporting

penalizes those who provide untruthful information to public

officials . . . .”).

¶ 86 The evidence also supports a reasonable conclusion that

defendant had conspired with Ms. Lowe to offer the police a false

report. While one officer was with defendant at the store, another

officer was at defendant’s home with Ms. Lowe. Mr. Williams, Ms.

Lowe’s ex-boyfriend, called her because the police had asked him to

do so. (By this time, the officers already knew that Ms. Lowe had

admitted to Mr. Williams that A.T. was dead.) The officer watched

Ms. Lowe leave the room to take Mr. Williams’ call. When she

returned, “she was markedly angrier.”

¶ 87 Back at the shoe store, defendant received a couple of cell

phone calls. During these calls, the officer who was with him

noticed that he became “more and more upset.” After being in the

store for fifteen to twenty minutes, defendant demanded that the

officer take him home. Upon returning home, defendant went

33
 directly inside to be with Ms. Lowe, and he asked that the officer

leave the house.

¶ 88 Viewing the reasonable inferences drawn from this evidence in

the light most favorable to the prosecution, a reasonable juror could

find that, after Ms. Lowe spoke with Mr. Williams, she thought that

the police had become suspicious of both the story that A.T. had

run away and the information that they had provided to help the

police search for her. A reasonable juror could also find that, after

receiving Mr. Williams’ call, Ms. Lowe immediately called defendant

to confer about how they should tailor their false reports.

¶ 89 We conclude that the record contains sufficient evidence to

support defendant’s convictions for false reporting and conspiracy

to commit false reporting based on conduct that had occurred

within eighteen months of when the grand jury indicted defendant

on those charges. We therefore further conclude that these two

convictions were not barred by the statute of limitations.

IV. The Trial Court Did Not Abuse Its Discretion When It Admitted
Certain Evidence

¶ 90 Defendant contends that the trial court erroneously admitted

the following out-of-court statements: (1) Ms. Lowe’s statements

34
 that defendant might face the death penalty; (2) Ms. Lowe’s

statements to her close friend, Ms. Graves; (3) Ms. Lowe’s

statements to Mr. Williams; and (4) the children’s statements to

various people.

A. Standard of Review

¶ 91 A trial court has considerable discretion when deciding

whether evidence is admissible at trial. People v. McFee, 2016 COA

97, ¶ 17. We will therefore only reverse a court’s decision to admit

evidence if it abused its discretion. Id. A trial court abuses its

discretion only if its decision is manifestly arbitrary, unreasonable,

unfair, or is based on a misunderstanding or misapplication of the

law. Id.

B. Ms. Lowe’s Statements About the Death Penalty

1. Additional Background

¶ 92 After Ms. Lowe told Ms. Graves that A.T. had died, Ms. Graves

recorded conversations that she had with Ms. Lowe. Ms. Lowe told

Ms. Graves that she could be subject to “five years for hiding it” and

that “this means death for [defendant].” One of Ms. Lowe’s

children, A.L., also reported that Ms. Lowe had told him not to

cooperate with the police because defendant would receive the

35
 death penalty if the police found out what had actually happened to

A.T.

¶ 93 The trial court decided that Ms. Lowe’s statements to the child

A.L. were relevant (1) to prove that she exerted influence over the

child; and (2) to help explain the inconsistencies in A.L.’s

statements about A.T.’s disappearance. The court ruled that Ms.

Lowe’s statements to Ms. Graves were relevant to “show the length

[that Ms. Lowe] was willing to go” and “what she was telling others

in order to get them to do and act as she felt they should to further

the conspiracy.”

2. Legal Principles

¶ 94 Evidence is relevant if it has “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.” CRE 401. Even relevant evidence may be excluded,

however, if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury. CRE 403.

36
 3. Application

¶ 95 Defendant contends that this evidence was far more

prejudicial than probative. But we conclude that the record

supports the trial court’s ruling. Ms. Lowe’s statements provided

evidence to prove defendant’s conspiracy with her to conceal A.T.’s

death. These statements explained A.L.’s false reports to the police,

which were made because defendant and Ms. Lowe told the boy to

make them.

¶ 96 We next conclude, for two reasons, that the probative value of

this evidence was not substantially outweighed by the danger of

unfair prejudice. “[O]nly prejudice that suggests a decision made

on an improper basis . . . requires exclusion of relevant evidence.”

People v. Warner, 251 P.3d 556, 563 (Colo. App. 2010). An

improper basis is “sympathy, hatred, contempt, retribution, or

horror.” People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).

¶ 97 First, although discussion of the death penalty might invoke a

strong reaction in a juror, the court instructed the jury that the

death penalty was not an issue in this case.

37
¶ 98 Second, the court gave the jury a limiting instruction when it

admitted the statements about the death penalty that mitigated any

prejudice. The instruction stated that

[p]ortions of [the recorded statements between
Ms. Lowe and Ms. Graves and the statement
that Ms. Lowe made to A.L.] may [have]
reference[d] the death penalty or potential
punishment. This evidence [was] offered for
the limited purpose of demonstrating the
intent of . . . [Ms.] Lowe [and the effect of these
statements on A.L.]. These particular
statements are not offered as evidence they are
true. You shall not consider this for any
purpose other than the limited purpose for
which these portions were admitted.

¶ 99 We must presume that the jury followed this instruction, and

nothing in the record rebuts this presumption. See People v.

Thomeczek, 284 P.3d 110, 115 (Colo. App. 2011)(finding that the

trial court’s limiting instruction mitigated any prejudice resulting

from the evidence); see also People v. Marko, 2015 COA 139, ¶ 195

(“[A]bsent evidence to the contrary, we presume jurors understand

and heed jury instructions.”)(cert. granted Oct. 24, 2016). We

therefore conclude that no juror could have reasonably believed

that the death penalty was an issue in this case.

38
 C. Hearsay Statements

¶ 100 Defendant contends that the trial court erred in admitting

dozens of hearsay statements made by Ms. Lowe and by the

children. We address these contentions in turn.

1. Legal Principles

¶ 101 Hearsay is an out-of-court statement that is offered as

evidence at trial to prove the truth of the matter asserted. CRE

801(c). Hearsay statements are presumptively unreliable and

generally inadmissible unless they fall within an exception. McFee,

¶ 10.

¶ 102 One such exception is if an unavailable declarant made a

statement against interest. A statement against interest is

admissible if the statement (1) had so great a tendency to expose

the declarant to criminal liability at the time it was made that a

reasonable person in the declarant’s position would have made it

only if the person believed it to be true; and (2) is supported by

corroborating circumstances that indicate its trustworthiness. CRE

804(b)(3); see People v. Beller, 2016 COA 184, ¶ 56. In determining

a statement’s trustworthiness, “the court should consider when and

where the statement was made, what prompted the statement, how

39
 the statement was made, and the substance of the statement.”

People v. Jensen, 55 P.3d 135, 138 (Colo. App. 2001). The court

should also consider “the nature and character of the statement,

the relationship between the parties to the statement, the

declarant’s probable motivations for making the statement, and the

circumstances under which the statement was made.” Bernal v.

People, 44 P.3d 184, 197 (Colo. 2002).

¶ 103 Out-of-court statements may also be admissible because they

are not hearsay. As is relevant to this case, statements in this

category include those made by a co-conspirator during the course

of and in furtherance of a conspiracy. CRE 801(d)(2)(E); Blecha,

962 P.2d at 937. Such statements are admissible against all

co-conspirators. Blecha, 962 P.2d at 937. To be admissible, the

proponent of the statement must show, by a preponderance of the

evidence, that a conspiracy existed and that the statements were

made during the course of and in furtherance of the conspiracy.

People v. Faussett, 2016 COA 94M, ¶ 34. Although the contents of

the statements may be considered to satisfy this burden, evidence

must corroborate the existence of the conspiracy apart from the

statements themselves. Id.

40
¶ 104 In addition to the evidentiary rules concerning the admission

of hearsay, out-of-court statements must also satisfy the Federal

and State Confrontation Clauses. U.S. Const. amend. VI; Colo.

Const. art. II, § 16. The Confrontation Clauses provide a criminal

defendant with the right to confront the witnesses against him; they

therefore prohibit the introduction of testimonial statements when

the declarant is unavailable to testify at trial and was not previously

subject to cross-examination. Crawford v. Washington, 541 U.S.

36, 59 (2004); see People v. Fry, 92 P.3d 970, 975-76 (Colo. 2004).

¶ 105 When a hearsay statement is nontestimonial, the Federal

Confrontation Clause is not triggered. See Michigan v. Bryant, 562

U.S. 344, 357-59 (2011). The statement, however, may still be

barred under the Colorado Confrontation Clause unless the

declarant is unavailable and the statement bears sufficient indicia

of reliability. People v. Phillips, 2012 COA 176, ¶ 84. “A statement

is reliable if it falls within a firmly rooted hearsay exception or if

there is a showing of particularized guarantees of trustworthiness.”

People v. Villano, 181 P.3d 1225, 1228 (Colo. App. 2008).

41
¶ 106 We review the questions of whether a statement is testimonial

and whether its admission violated the defendant’s confrontation

rights de novo. Phillips, ¶ 85.

2. Ms. Lowe’s Out-of-Court Statements to Ms. Graves

a. 2004 Conversation

¶ 107 Ms. Graves described a conversation with Ms. Lowe at a park

in 2004. Ms. Lowe became emotional, and she explained that one

morning A.T. did not come down for breakfast. She said that when

she went to check on A.T., she found the girl unresponsive in her

bed.

¶ 108 According to Ms. Lowe, when defendant saw A.T.’s condition,

he told her to leave the room. Several hours later, he left the house

with A.T., and he did not come back for quite some time.

¶ 109 Ms. Lowe told Ms. Graves that she could not go to the police

because the police would take her children. She said that she had

discussed several stories with defendant to cover up A.T.’s death.

In one of these stories, defendant would claim that he had taken

A.T. to see her biological mother in Michigan, but someone had

kidnapped the girl while they were en route.

42
¶ 110 Ms. Lowe asked Ms. Graves to come with her to find a place on

the route to Michigan that they could claim was the place where the

child had been kidnapped. Ms. Graves refused to participate.

¶ 111 At the pretrial admissibility hearing, the court heard this

testimony from Ms. Graves. It found that Ms. Lowe was

unavailable, that her statements subjected her to criminal liability

for concealing the death of A.T., and that she understood the legal

consequence of her statements. The court also determined that Ms.

Lowe’s statements were trustworthy and reliable because of the

nature and the character of the circumstances surrounding them.

Based on these findings, the court admitted the 2004 conversation

as a statement against interest. (The court alternatively admitted

the contents of the conversation as res gestae. We do not address

that part of the court’s ruling because we conclude that the

statements were admissible as statements against interest.)

¶ 112 Defendant contends that the trial court erred when it admitted

the contents of the 2004 conversation between Ms. Lowe and Ms.

Graves because the statements were not reliable. We disagree for

the following reasons.

43
¶ 113 First, the record supports the trial court’s findings. The

statements inculpated Ms. Lowe in her conspiracy with defendant

to conceal A.T.’s death.

¶ 114 Second, Ms. Graves’ testimony about the circumstances

surrounding the conversation showed that the statements were

reliable. She stated that she and Ms. Lowe were best friends and

that they shared everything. Ms. Graves also testified that Ms.

Lowe’s demeanor was unusual, so Ms. Graves knew that something

was bothering her. When Ms. Lowe mentioned A.T.’s death, she

began crying and shaking.

¶ 115 Third, the record indicates that Ms. Lowe’s statements were

voluntary, they were reasonably detailed, they reflected her

personal knowledge of the events, and they inculpated her as well

as defendant. As the court noted, Ms. Lowe “was very careful not to

just dump [it] on . . . Mr. Thompson.”

¶ 116 And, although Ms. Lowe’s statement that A.T. had died was

not, by itself, a statement against interest, we do not think that the

court erred when it admitted it. Under CRE 804(b)(3), the court

may admit not only the precise statement against interest but also

“related, collaterally neutral statements.” People v. Newton, 966

44
 P.2d 563, 578 (Colo. 1998)(“[S]evering collaterally neutral

statements from each precise self-inculpatory remark deprives the

jury of important context surrounding that self-inculpatory

remark.”).

¶ 117 Ms. Lowe’s statement that A.T. was dead was one of those

related, collaterally neutral statements. Without that statement,

Ms. Lowe’s additional comments about concealing A.T.’s death and

soliciting Ms. Graves to assist her in doing so would not have made

any sense. The statement that A.T. had died was therefore

necessary to understand the 2004 conversation. Based on the

totality of the circumstances, we conclude that the trial court did

not abuse its discretion when it admitted the contents of the

conversation as statements against Ms. Lowe’s penal interests.

¶ 118 As for the Federal Confrontation Clause, defendant concedes

that Ms. Lowe’s statements were nontestimonial. Still, he continues

by asserting that her nontestimonial statements violated the

Colorado Constitution’s Confrontation Clause because they did not

bear sufficient indicia of reliability. See Phillips, ¶ 84. But the trial

court’s finding that Ms. Lowe’s statements against interest were

supported by corroborating circumstances, in effect, “incorporate[d]

45
 the [Colorado] Confrontation Clause’s requirement that a statement

bear particularized guarantees of trustworthiness.” Beller, ¶ 58.

Because the record supports the trial court’s reliability findings, we

conclude that the court’s admission of these statements did not

violate the Colorado Confrontation Clause.

b. The Recorded Statements

¶ 119 The second set of statements between Ms. Lowe and Ms.

Graves began a year after their 2004 conversation. Ms. Graves,

cooperating with the police, recorded multiple conversations she

had with Ms. Lowe. During these conversations, Ms. Lowe

repeatedly tried to dissuade Ms. Graves from talking to the police

about A.T. Ms. Lowe also expressed regret for telling Ms. Graves

about A.T.’s death. The court ruled that the recorded statements

were nontestimonial, and the court admitted them as

co-conspirator statements because they “were clearly statements in

furtherance of and during the course of the conspiracy.”

¶ 120 Defendant contends that, because the recorded statements

were obtained at the direction of the police, they were testimonial

and that their admission violated the Federal Confrontation Clause.

But statements made by a co-conspirator in furtherance of the

46
 conspiracy are nontestimonial. See Villano, 181 P.3d at 1228-29;

see also United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir.

2013)(“[B]ecause these statements were made in furtherance of a

conspiracy, they are nontestimonial and present no Sixth

Amendment problem.”). And the United States Supreme Court has

said that such statements are nontestimonial even if made to a

person working with, or at the direction of, the police. See Bourjaily

v. United States, 483 U.S. 171, 181-84 (1987); see also Villano, 181

P.3d at 1228-29 (holding that a co-conspirator’s statements to an

undercover police officer made during the course of and in

furtherance of the conspiracy were nontestimonial).

¶ 121 Bourjaily is instructive. The Supreme Court rejected the

defendant’s contention that the admission of a conversation

between a co-conspirator and a confidential police informant

violated the Federal Confrontation Clause. Bourjaily, 483 U.S. at

183. Although Bourjaily did not consider whether the statements

were testimonial, the Supreme Court later referenced Bourjaily as

consistent with the principle that the Sixth Amendment permits the

admission of nontestimonial statements in the absence of prior

opportunities for cross-examination. Crawford, 541 U.S. at 58; see

47
 also United States v. Hendricks, 395 F.3d 173, 183-84 (3d Cir.

2005); People v. Compan, 100 P.3d 533, 537 (Colo. App. 2004),

aff’d, 121 P.3d 876 (Colo. 2005). And, contrary to defendant’s

contention, Ms. Lowe’s suspicion that Ms. Graves was cooperating

with the police does not alter the application of Bourjaily. Indeed, it

would be hard to conclude that a reasonable person in Ms. Lowe’s

position would have made incriminating statements if she had

believed that they would later be used in the investigation or

prosecution of a crime. We therefore conclude that Ms. Lowe’s

recorded statements to Ms. Graves were not testimonial.

¶ 122 The record also supports the trial court’s conclusion that the

recorded statements were co-conspirator statements. Defendant

and Ms. Lowe engaged in a “separate conspiracy to conceal” A.T.’s

death after the conspiracy to cause her death. Blecha, 962 P.2d at

938. Ms. Lowe’s statements to Ms. Graves were therefore made in

furtherance of, and during the course of, an active conspiracy.

¶ 123 We conclude that the trial court properly admitted these

statements as co-conspirator statements. And, although the

recorded statements included information in addition to the specific

statements in furtherance of the conspiracy, we further conclude

48
 that the trial court did not abuse its discretion when admitting

them because the parties had agreed that the court should consider

“the statements coming in as a whole, rather than a line-by-line

analysis of each conversation.”

¶ 124 Last, to the extent that defendant also challenges these

nontestimonial statements under the Colorado Confrontation

Clause, “[t]he admissibility of co-conspirator statements is so firmly

rooted in law that a court need not independently inquire into the

reliability of a co-conspirator’s statement.” Villano, 181 P.3d at

1228-29. The admission of these statements therefore satisfied the

Colorado Confrontation Clause’s requirements. See Beller, ¶ 53 (“A

statement is sufficiently reliable for confrontation purposes if it falls

within a firmly rooted hearsay exception . . . .”).

3. Ms. Lowe’s Statements to Mr. Williams

¶ 125 Mr. Williams described a conversation he had with Ms. Lowe a

year before A.T. allegedly ran away. They were alone in a car when

Ms. Lowe pulled over and told Mr. Williams that A.T. had stopped

breathing during a bath. She claimed that, despite her efforts, she

could not bring A.T. back to life. When Mr. Williams asked her why

she did not call for help, she responded that she did not want her

49
 children to be taken away because A.T. had a scar on her back from

a “beating.” She then told Mr. Williams that she and defendant had

decided to drive A.T.’s body far away to bury it. She said that, when

they were burying A.T., “she [could] hear[] the last little breaths of

life come out of her body.”

¶ 126 Ms. Lowe then explained that she and defendant had a story

to explain A.T.’s disappearance: Defendant had taken A.T. to see

her biological mother in Michigan and that someone had kidnapped

A.T. during the trip.

¶ 127 Ms. Lowe then asked Mr. Williams to commit identity theft to

help her raise money for defendant’s legal fees. He declined.

¶ 128 We conclude that Ms. Lowe’s statements to Mr. Williams about

A.T.’s death, her participation in A.T.’s burial, and her attempts to

conceal A.T.’s death were admissible statements against interest.

Much like the statements that Ms. Lowe had made to Ms. Graves,

she told Mr. Williams that A.T. had died without any prompting by

him. She then described her efforts to conceal the girl’s death. She

added that she had heard A.T.’s last breaths while she and

defendant were burying the girl. These statements about Ms.

Lowe’s efforts to conceal A.T.’s death subjected her to criminal

50
 liability. And Ms. Lowe’s statement that A.T. was still breathing

when they buried her inculpated her in killing A.T.

¶ 129 The circumstances under which Ms. Lowe made the

statements also support the trial court’s determination that they

were reliable. Mr. Williams described his long relationship with Ms.

Lowe. He said that they had been best friends who confided in each

other. Ms. Lowe voluntarily made these statements to Mr. Williams

while they were alone in a car and when she was visibly upset. She

did not shift the blame to Mr. Thompson but equally inculpated

herself in (1) burying A.T. while she was still alive; and

(2) concealing A.T.’s death. We therefore conclude the court did not

abuse its discretion when it admitted Ms. Lowe’s statements to Mr.

Williams.

¶ 130 Ms. Lowe’s statement soliciting Mr. Williams to commit

identity theft to raise money for defendant’s legal funds is not as

straightforward. At the pretrial hearing, Mr. Williams testified that

Ms. Lowe asked him to commit identity theft during the same

conversation in which she disclosed A.T.’s death. At trial, however,

he testified that this statement was made “a week [or] week and a

half” later. Because the trial court did not consider this statement

51
 separately, it did not make individualized reliability findings or

consider the circumstances under which this second conversation

occurred. Based on the record before us, we cannot determine the

trustworthiness of the statement. See Newton, 966 P.2d at 575-76

(explaining that trial court should make findings on the

trustworthiness of the statement against interest).

¶ 131 Even so, and if we assume that admitting this statement was

error, we conclude, for the following reasons, that this putative

error was harmless. First, it was not a constitutional error. See

Faussett, ¶ 54 (listing the facts a court should consider when

deciding whether an error is harmless). Second, this statement was

not crucial to the prosecution’s case. See id. Third, this statement

was somewhat tangential because it did not directly concern

defendant’s or Ms. Lowe’s responsibility for A.T.’s death. See id.

Fourth, the prosecutor did not emphasize this evidence in closing

argument. Fifth, this was not a close case; the prosecution’s

evidence was strong. See id.

52
 D. The Children’s Statements

1. The Children’s Testimony About “the A.T. Story”

¶ 132 Following defendant’s report that A.T. had run away from

home, police officers spoke with the other seven children who lived

in the home. Forensic interviewers also spoke with most of the

children shortly after they had been removed from that home.

¶ 133 In the beginning, the children’s stories were fairly consistent.

They all repeated the story that A.T. had run away and that they

remembered seeing A.T. at home on the morning that defendant

had reported her as a runaway. The children also repeated similar

details about A.T., including describing her Halloween costume that

year and naming her favorite food and her favorite color. The court

described these statements as “the A.T. story.”

¶ 134 But, as time passed, the children revealed that the A.T. story

was a lie that defendant and Ms. Lowe had instructed them to tell.

¶ 135 The trial court admitted the children’s renditions of the A.T.

story not for the truth of the story — it was not true — but as

nonhearsay verbal acts. A verbal act is admissible to show that the

statement was actually made, not to prove the truth of it. People v.

Scearce, 87 P.3d 228, 233 (Colo. App. 2003). And, if an

53
 out-of-court statement is not offered for its truth, it is admissible as

nonhearsay evidence as long as it is relevant to the issues

presented. Phillips, ¶ 62.

¶ 136 To the extent that defendant contends that the trial court

erred when it admitted the children’s individual versions of the A.T.

story, we disagree. The children knew when they told the A.T. story

to the police that it was false. They later admitted that defendant

and Ms. Lowe had instructed them to tell that false story.

¶ 137 The prosecution had charged defendant with contributing to

the delinquency of each child because he had instructed them to

make a false report to the police by telling the officers the A.T. story.

Those statements were therefore relevant, not for their truth, but to

prove that (1) defendant had told the children to lie to the police;

and (2) the children had done as they had been told.

¶ 138 Defendant adds that, because A.T.J. did not testify at trial, the

court violated the Federal Confrontation Clause when it admitted

his version of the A.T. story. See Crawford, 541 U.S. at 59. But

A.T.J.’s statements were verbal acts, and the court did not admit

them for their truth. Instead, as noted above, A.T.J.’s statements

provided evidence that, at defendant’s instruction, he had lied to

54
 the police. Because A.T.J.’s statements were not hearsay, the

Confrontation Clause did not apply to them. People v. Robinson,

226 P.3d 1145, 1151 (Colo. App. 2009)(“[T]he admission of

nonhearsay does not implicate a defendant’s confrontation rights.”);

see also Crawford, 541 U.S. at 59 n.9 (“The Clause also does not

bar . . . the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.”); accord People v.

Isom, 140 P.3d 100, 103 (Colo. App. 2005).

¶ 139 We therefore conclude that the trial court did not abuse its

discretion when it admitted the children’s various versions of the

A.T. story that they had told to police officers and to forensic

interviewers.

2. The Children’s Statements About Child Abuse

¶ 140 Beginning with their initial police contact, the children

described the physical abuse that defendant and Ms. Lowe had

inflicted on them. The children continued to disclose more specifics

about the abuse as they made additional statements to forensic

interviewers, therapists, caseworkers, and foster parents.

¶ 141 After a pretrial evidentiary hearing, the trial court considered

the admissibility of the children’s statements one by one. The court

55
 admitted the majority of these statements under the child hearsay

statute. See § 13-25-129(1), C.R.S. 2016. In doing so, it carefully

considered the relevant factors for admission, and then it provided

detailed and thorough findings about the reliability of the children’s

statements.

¶ 142 As an initial matter, we reject defendant’s contention that the

trial court erred when it denied his request to subpoena the

children to testify at the pretrial hearing. To be sure, a defendant

may subpoena a child victim to testify at a pretrial hearing, but only

if “he can show that such testimony would be relevant and

necessary.” People v. Snyder, 849 P.2d 837, 838 (Colo. App. 1992).

In many instances, the victim’s testimony may be needed for the

court’s pretrial admissibility determination, but there is no

requirement that the court must take such testimony. See id.

¶ 143 The trial court considered defendant’s offers of proof about

why he thought the children should testify at the hearing. But, in

light of the evidence that had already been presented, the court

decided that the children would not be required to testify.

¶ 144 Specifically, the court pointed to the testimony of the

witnesses to whom the children had made the statements, the

56
 audio and video recordings of the statements, and the transcripts of

the statements. The court ruled that these sources of information

were “what really truly illuminates” whether the children’s

statements were reliable when they were made. In other words, the

children’s testimony about statements that they had made several

years before would not add anything meaningful to the court’s

analysis because it had ample evidence from the time when the

children had made those statements. We therefore conclude that

the record supports the court’s determination that the children did

not have to testify at the pretrial evidentiary hearing. E.g., People v.

Juvenile Court, 937 P.2d 758, 761 (Colo. 1997)(stating that a child

victim need not testify at the hearing).

¶ 145 We now turn to analyzing the trial court’s decision to admit

the children’s statements at trial. When a child abuse victim

testifies at trial, the child’s prior out-of-court statements about any

act of abuse that the child suffered or that the child witnessed may

be admitted if the court finds that the time, content, and

circumstances of the statements provide sufficient safeguards of

reliability. § 13-25-129(1)(a), (b)(I); People v. Pineda, 40 P.3d 60, 67

(Colo. App. 2001). These safeguards of reliability include factors

57
 such as (1) whether the statement was spontaneous; (2) whether it

was made while the child was still upset or in pain from the alleged

abuse; (3) whether the language was likely to have been used by a

child of the victim’s age; (4) whether it was heard by more than one

person; (5) whether the child victim had a bias against the

defendant; (6) whether intervening events could account for the

statement; (7) whether the allegation was in response to a leading

question; and (8) the general character of the child victim. People v.

Rojas, 181 P.3d 1216, 1218-19 (Colo. App. 2008); see also People v.

Dist. Court, 776 P.2d 1083, 1089-90 (Colo. 1989). While these

factors provide guidance and direction, the absence of one or more

factor does not bar a court from admitting a statement. See Dist.

Court, 776 P.2d at 1090.

¶ 146 We will uphold a court’s decision to admit a child hearsay

statement “if the record shows an adequate factual basis to support

its decision.” Phillips, ¶ 91.

¶ 147 First, defendant contends that the children’s initial statements

to the police were not spontaneous, specific, or close in time to the

reported abuse. He also contends that the children were subjected

58
 to interrogation techniques designed to “break” the children. The

record, however, refutes these assertions.

¶ 148 After the children relayed the A.T. story to the police officers,

the officers asked them individually about the type of punishment

they received. The children reported that they received “whoopins.”

While fairly general, their response was to an open-ended question,

they used age-appropriate language, and the court found that the

children did not have a motivation to lie about the child abuse.

¶ 149 The court also noted that the manner in which the children

brought up the abuse increased the reliability of their statements.

In particular, the court observed that the abuse “was such a

day-in-day-out reality [for] these children they didn’t even consider

it to be remarkable [such] that they shouldn’t tell law enforcement

about [it].” The record also supports these findings.

¶ 150 Second, defendant submits that the children’s reports of

abuse to their respective therapists, caseworkers, foster parents,

and teachers were unreliable because intervening events

precipitated the disclosures, the abuse did not occur close in time

to the disclosures, the children were aware that disclosing abuse

59
 led to them receiving considerable attention, and the children’s

prior lies to the police undercut their credibility.

¶ 151 The trial court considered these arguments at the pretrial

hearing and found that factors surrounding the children’s

statements — considered in their individual circumstances —

overcame these contentions. See Rojas, 181 P.3d at 1220 (“[T]he

fact that not all the relevant factors support admissibility does not

require exclusion of the statements.”). The court found that the

children’s reports of abuse were made in response to open-ended

questions, in age-appropriate language, without a motivation to lie

about the abuse, and in environments in which the children felt

safe. Given the court’s thorough findings about the admissibility of

the children’s statements, we conclude that the court did not abuse

its discretion when it admitted these statements.

¶ 152 Third, we reject defendant’s contention that the trial court

should not have admitted the children’s descriptions of their abuse

in 2007 forensic interviews because that time was too remote from

the incidents of abuse. Although these interviews occurred almost

two years after the children were removed from the home, the

record supports the court’s finding that no intervening events had

60
 occurred that would have prompted the children to make up their

descriptions of the abuse that they had suffered. And, for some of

the children, the therapeutic sessions they had participated in

during these two years appeared to explain why they were able to

recall specific incidents of abuse years after it occurred. In sum,

the circumstances surrounding these interviews and the content of

the children’s statements support the trial court’s determination

that they were reliable. See, e.g., People v. Brown, 2014 COA

155M-2, ¶ 29 (“[W]e defer to the trial court’s findings of fact which

are supported by the record.”).

3. Statements Admitted Under the Residual Hearsay Exception

¶ 153 Defendant next contends that the trial court erred when it

admitted some of the children’s out-of-court statements under the

residual hearsay exception, including: (1) A.L.’s 2007 forensic

interview; (2) R.R.’s statement to his foster parent; and (3) the

children’s admissions to the 2005 forensic interviewer that their

reports of A.T.’s disappearance were not truthful and that

defendant and Ms. Lowe had instructed them to lie.

61
 a. Legal Principles

¶ 154 In the absence of a particularized exception, a trial court may

admit hearsay statements under the residual hearsay exception.

CRE 807. Under this exception, the court must determine that

(1) circumstantial guarantees of trustworthiness support the

statement; (2) the statement provides evidence of a material fact;

(3) the statement is more probative of the material fact than other

evidence available; (4) admission serves the interests of justice and

purposes of the rules of evidence; and (5) the adverse party had

adequate notice of the proponent’s intention to introduce the

statement. People v. Fuller, 788 P.2d 741, 744 (Colo. 1990).

¶ 155 In evaluating the trustworthiness of a statement for purposes

of the residual exception, “we examine the nature and character of

the statement, the relationship of the parties, the probable

motivation of the declarant in making the statement, and the

circumstances under which the statement was made.” McFee, ¶ 19.

The party offering the statement must establish its trustworthiness

by a preponderance of the evidence. Brown, ¶ 20.

62
 b. A.L.’s Statements to the Forensic Interviewer

¶ 156 In 2007, A.L. made statements to the forensic interviewer

recounting specific instances of abuse that defendant and Ms. Lowe

had inflicted on him. A.L. also participated in a follow-up interview

with the police about these reports. Because A.L. was sixteen years

old at the time that he made these statements, the child hearsay

statute did not apply. See § 13-25-129(1).

¶ 157 But the court decided that these statements were admissible

under the residual hearsay exception. In making this

determination, the court found that the statements were supported

by circumstantial guarantees of trustworthiness because A.L.

(1) had no motivation to hurt defendant; (2) had first-hand

knowledge of the events; (3) made the statements during a forensic

interview; (4) made the statements after participating in therapy;

and (5) was comfortable speaking with the forensic interviewer. The

court also determined “that these statements [were] more probative

on the point in terms of the comfort level and being able to talk

about those things and give full descriptions.”

63
¶ 158 For similar reasons, the court found that A.L.’s follow-up

interview with the police had “heightened reliability,” so it was

admissible under CRE 807.

¶ 159 We are not persuaded by defendant’s contention that the trial

court erred when it found that A.L.’s statements in the forensic

interview were not more probative of the abuse that he had suffered

than other available evidence. Even though A.L. was able to testify

to the instances of abuse, the trial court found that, because of

A.L.’s prior antagonistic demeanor toward law enforcement and, by

contrast, the surprising “comfort[]” that he had shown in the

forensic interview, he was able to provide a clear description of what

happened in the forensic interview. We defer to these findings

because the record supports them. See Brown, ¶ 29.

c. R.R.’s Statements to Police Officers

¶ 160 We next turn to R.R.’s statements. Following his interview

with the police officers, R.R. was crying and enraged. He blamed

the police for breaking his family apart. During the ride to his

foster home, he spoke in “a string of consciousness,” and he

admitted that he had not seen A.T. since he had moved in with

64
 defendant and Ms. Lowe almost a year previously, and that Ms.

Lowe had instructed him what to tell the police about A.T.

¶ 161 The court admitted these statements under the residual

hearsay exception and as excited utterances. Even if we assume

that the court should not have admitted the statements under the

residual exception, defendant does not challenge their admission as

excited utterances on appeal. See CRE 803(2); see also Lawson v.

Stow, 2014 COA 26, ¶ 41 (“[A] party’s failure to present a cogent

argument contesting a court’s alternative basis for judgment

requires us to affirm the judgment.”); Phillips, ¶ 63 (“We may uphold

the trial court’s evidentiary decision on any ground supported by

the record . . . .”). We therefore conclude that the trial court did not

err when it admitted these statements as excited utterances.

d. The Children’s Statements to the Forensic Interviewer

¶ 162 Defendant next asserts that the trial court erred when it

admitted particular statements that the children made in 2005 to a

forensic interviewer. These statements included (1) the children’s

disclosures that defendant and Ms. Lowe had instructed them to lie

to the police; and (2) some related statements that the court had

admitted for the truth of the matters asserted in them.

65
¶ 163 As we have observed above, the trial court made thorough and

detailed reliability determinations regarding each of these

statements, and it decided that the circumstances surrounding the

children’s disclosures during their forensic interviews were reliable

and more probative about the abuse than the other evidence. The

court noted that these statements were made immediately after the

children had been removed from the home and that they had given

“a real snapshot of what was going on” at that point in time.

¶ 164 We conclude that the trial court did not abuse its discretion

when it admitted these statements because the record supports the

trial court’s findings and analysis.

4. Special Concerns About the Reliability of K.W.’s Statements

¶ 165 Defendant asserts that K.W.’s statements were not reliable

because, at the time that she made them, she was developmentally

delayed and she had a speech impediment. We disagree.

The trial court admitted four of K.W.’s out-of-court statements:

 K.W.’s initial statement to the police right after defendant

had reported that A.T. had run away. She said that A.T.

had walked down the street. The court admitted this

false report as a verbal act.

66
  K.W.’s statement to a caseworker that A.T. had not been

in the home for some time.

 K.W.’s forensic interview.

 K.W.’s statement to her therapist that disclosed specific

instances of child abuse.

¶ 166 The trial court recognized that K.W. was developmentally

delayed, but it noted that “just because someone is developmentally

delayed[,] [it] does not make them ipso facto unreliable.” It then

considered the content and circumstances of K.W.’s out-of-court

statements. It found that, given the “matter of fact” manner in

which the statements were made and the appropriate language

used, there were sufficient guarantees of reliability. We conclude

that the record supports these findings and that the trial court did

not abuse its discretion when it admitted these statements.

E. Expert Testimony

¶ 167 Defendant asserts that two expert witnesses improperly

vouched for the children’s credibility. We disagree.

¶ 168 We review the trial court’s decision to admit expert testimony

for an abuse of discretion. See, e.g., People v. Watson, 53 P.3d 707,

711 (Colo. App. 2011). On the one hand, an expert witness may not

67
 testify, either directly or by implication, that a child victim was

telling the truth when the child reported an incident of abuse. See

Venalonzo v. People, 2017 CO 9, ¶ 32. On the other hand, “experts

may testify concerning whether a victim’s behavior or demeanor is

consistent with the typical behavior or demeanor of victims of

abuse.” People v. Glasser, 293 P.3d 68, 78 (Colo. App. 2011).

¶ 169 One of the experts in this case, a psychotherapist, offered the

opinion that the children had come from a “closed family system.”

This meant that they could have trouble adjusting to the foster

homes in which they had been placed. She added that it was not

unusual for a victim of child abuse, (1) such as E.W.J. in this case,

to blame himself for the abuse that he had received; or, (2) such as

K.S. in this case, to shut down for a while, but then to remember

more particulars about her abuse over time.

¶ 170 The second expert, a forensic interviewer, talked about

“barriers to disclosure,” or factors in a child’s life that might prevent

him or her from disclosing what had happened. These included the

prospect that a parent might be imprisoned if the authorities

learned what had happened; familial relationships; and familial

68
 cultures, such as when parents taught children not to cooperate

with police officers or with other governmental figures.

¶ 171 We conclude, for the following reasons, that the record in this

case establishes that these two experts did not vouch for the

children’s veracity, either directly or indirectly.

¶ 172 First, the experts did not testify, either directly or by

implication, that the children were telling the truth. See CRE

608(a); People v. Eppens, 979 P.2d 14, 17 (Colo. 1999).

¶ 173 Second, they did not say that they believed the children. See

People v. Oliver, 745 P.2d 222, 225 (Colo. 1987).

¶ 174 Third, they did not suggest that children do not tend to make

up a story that they have been abused. People v. Snook, 745 P.2d

647, 649 (Colo. 1987).

¶ 175 Fourth, they did not try to explain inconsistencies in the

children’s testimony. See Venalonzo, ¶ 36.

¶ 176 Rather, the experts’ testimony concerned the typical demeanor

and traits of abused children. See People v. Mintz, 165 P.3d 829,

831 (Colo. App. 2007). This testimony was admissible because it

helped the jury to understand the children’s behavior after they had

been abused. People v. Relaford, 2016 COA 99, ¶ 28. Such

69
 information provided “a relevant insight into the puzzling aspects of

the child’s conduct and demeanor which the jury could not

otherwise bring to its evaluation . . . .” People v. Whitman, 205 P.3d

371, 383 (Colo. App. 2007)(citation omitted). In other words, the

expert testimony in this case “deal[t] with the . . . general

characteristics evidence which (1) relate[d] to an issue apart from

credibility and (2) only incidentally tend[ed] to corroborate a

witness’s testimony.” People v. Cernazanu, 2015 COA 122, ¶ 20.

F. Evidence Concerning Financial Circumstances

¶ 177 Defendant asserts that the trial court erred when it admitted

certain financial evidence, specifically (1) how much the search for

A.T. cost the taxpayers, as reflected by a video showing the police

search for her; (2) defendant’s and Ms. Lowe’s reliance on

government assistance, including subsidized housing and welfare;

and (3) evidence that defendant and Ms. Lowe had bought a

timeshare in Florida. He asserts that this information was only

relevant to show that he and Ms. Lowe were “sponges on society”

who had nonetheless purchased the luxury of a timeshare. We

disagree. We conclude that this evidence was relevant and that its

70
 relevancy was not outweighed by the danger of unfair prejudice.

See CRE 401, 403.

¶ 178 First, the video documenting the police efforts to search for

A.T., which was only six minutes long, was relevant to show that

the police had taken defendant’s report that A.T. was missing

seriously, that they had not prematurely focused their investigation

on defendant and Ms. Lowe, and that their entire investigation was

not shoddy. (Ms. Lowe had told Ms. Graves that the police had not

done “anything” and that they did not believe defendant and Ms.

Lowe.) This probative value was not substantially outweighed by

the danger that it would unfairly prejudice the jury to regard

defendant with “sympathy, hatred, contempt, retribution, or

horror.” See Dist. Court, 785 P.2d at 147.

¶ 179 Second, the information about defendant’s and Ms. Lowe’s

welfare payments was relevant to show that they had claimed

benefits for A.T., and that they had continued to do so after she

died in order to keep her death secret. And the public housing

information was mentioned only fleetingly to explain why a witness

had inspected defendant and Ms. Lowe’s home. Again, this

information was not unduly prejudicial. See id.

71
¶ 180 The timeshare application was admitted because defendant

had claimed that the entire family, including A.T., had gone to

Florida on vacation about five months before defendant had

reported to the police that she had run away. (Evidence established

that A.T. had died about eighteen months before this Florida trip.)

Defendant said that he did not have any photographs from this trip,

but Ms. Lowe provided photographs that did not include A.T. So

the application was relevant to show that the police had a reason to

expand their investigation to the area in Florida where the

timeshare unit was located to see if anyone had seen A.T. during

this period. There was nothing unduly prejudicial about this

information, either. See id.

¶ 181 Last, the prosecution did not contend that defendant and Ms.

Lowe were “sponges on society”; there was no suggestion that the

jury should convict defendant because he was a moocher or a

welfare cheat.

G. Cumulative Evidence

¶ 182 Defendant submits that the cumulative effect of all this

allegedly improper evidence risked confusing the jurors or tiring

them out. But defendant offers little in support of this submission.

72
 He points to statements by several jurors that they doubted their

ability to sort through fifty-five counts, to an allegation that one

juror had been asleep at one point during the trial, and to the fact

that the jury sent the court eleven questions while it was

deliberating.

¶ 183 But none of these factors, separately or together, established

that the jury was exhausted or confused. The court excused the

jurors who thought that they could not work their way through all

the counts. The allegedly sleeping juror told the court that he had

not been sleeping and that he had been alert and listening to the

testimony. And the jury’s questions did not indicate that it was

confused or tired out. To the contrary, the jury asked the court to

clarify some instructions; it pointed out typographical errors on the

jury forms; and it wanted access to certain evidence.

¶ 184 We review the court’s decision to admit this allegedly

cumulative evidence for an abuse of discretion. People v. Pahlavan,

83 P.3d 1138, 1140 (Colo. App. 2003). “The fact that evidence is

cumulative does not, by itself, render the evidence inadmissible.”

Id. A court only abuses its discretion when it admits cumulative

evidence if that decision is “manifestly arbitrary, unreasonable, or

73
 unfair under the circumstances.” Id. CRE 403 states that a court

should avoid the “needless presentation of cumulative evidence.”

(Emphasis added.)

¶ 185 We conclude, for the following reasons, that the court did not

abuse its discretion when it admitted the evidence that defendant

describes as cumulative.

¶ 186 First, the testimony of various witnesses about the A.T. story

was not needlessly cumulative. It was, instead, relevant to show

different aspects of the story and to establish that defendant and

Ms. Lowe had instructed the other children in the house to tell it to

the authorities. (Remember that defendant had been charged with

individual counts of contributing to the delinquency of each of these

children.) It also was relevant to prove the conspiracy between

defendant and Ms. Lowe.

¶ 187 Second, the testimony about the means that Ms. Lowe used to

discourage the children, Ms. Graves, and Mr. Williams from

speaking to the police — suggesting that defendant could get the

death penalty for killing A.T. and that the government would take

the children away — was not needlessly cumulative. It established

74
 that Ms. Lowe had used these means in attempt to silence everyone

who knew about A.T.’s fate.

¶ 188 Third, the testimony from various witnesses about the

punishments that defendant and Ms. Lowe inflicted on the children

was not needlessly cumulative because it addressed the multiple

counts of child abuse in which each child was named as a victim.

¶ 189 Fourth, testimony from several witnesses about how A.T., in

particular, was punished by being placed in a closet — when

combined with a full-size model of the closet — corroborated the

children’s testimony and was not needlessly cumulative; it was

relevant to disprove defendant’s claim that the children had made

up the details of A.T.’s and their own abuse.

¶ 190 Fifth, the evidence that defendant and Ms. Lowe lived in public

housing, collected welfare, and had applied for the Florida

timeshare was not needlessly cumulative because it explained why

the police took certain steps in their investigation.

75
 V. The Trial Court Did Not Abuse Its Discretion When It Imposed
Consecutive Sentences on the Misdemeanor Child Abuse
Counts

¶ 191 The jury convicted defendant of six counts of misdemeanor

child abuse. The victims were the six children, besides A.T., who

had lived with defendant and Ms. Lowe.

¶ 192 The trial court sentenced defendant to twenty-four months, or

the maximum, in the county jail on each count. The court then

ordered that these sentences were to be served consecutively to

each other, for a total of twelve years. The court then ordered

defendant to serve those sentences consecutively to the prison

sentences that the court had imposed on the other counts. The

court added that the consecutive jail sentences would precede the

prison sentences. We review a trial court’s sentencing decisions for

an abuse of discretion. People v. Muckle, 107 P.3d 380, 382 (Colo.

2005). Defendant contends that the trial court did not provide a

reasonable explanation for its decision to order defendant to serve

the misdemeanor sentences consecutively to the prison sentence

and before the prison sentence. We conclude, for the following

reasons, that the trial court did not abuse its discretion when it

imposed the consecutive sentences.

76
¶ 193 First, the court generally stated that, among other things, the

“seriousness of the offense, the gravity of the offense, and the effects

on the children [were] the driving factor[s] in imposing sentence in

this case.” It added that “the level of abuse suffered by those

children” justified the maximum sentence on each count.

¶ 194 Second, the court also referred to section 18-1.3-501(1)(c),

C.R.S. 2016. As People v. Valadez, 2016 COA 62, ¶ 11, points out,

this statute created a general rule and an exception. The general

rule was that a court would not normally order a defendant to serve

a jail sentence for a misdemeanor consecutively to a prison

sentence for a felony. See id. The exception was that a court could

decide, “after consideration of all the relevant facts and

circumstances, that a concurrent sentence [was] not warranted.”

§ 18-1.3.-501(1)(c). It could then impose a consecutive

misdemeanor sentence. See Valadez, ¶ 15. If a concurrent

sentence was not warranted, the court “must toll the prison

sentence [and] order that the [consecutive] county jail

sentence . . . be served before the remainder of the prison

sentence.” Id. at ¶ 27. “After fully serving the jail sentence, the

77
 prisoner must then be transferred back” to prison “to serve the

remainder of his prison sentence.” Id.

¶ 195 Third, the misdemeanor sentences involved six different

victims, and the prison sentences focused on the death of the

seventh victim, A.T. See People v. O’Dell, 53 P.3d 655, 657 (Colo.

App. 2001)(explaining that, when multiple victims are named in

multiple convictions, the court has discretion to impose consecutive

sentences); see also People v. Howell, 64 P.3d 894, 898 (Colo. App.

2002)(a trial court is only required to describe the basic reasons for

imposing a particular sentence); People v. Koehler, 30 P.3d 694, 698

(Colo. App. 2000)(a trial court is not required to explicitly comment

on each of the statutory factors that it considered).

VI. Things That We Will Not Consider

A. Attachments to the Opening Brief

¶ 196 Defendant attached five appendices to his opening brief. The

prosecution asserts that these appendices constitute an improper

attempt to provide additional legal authority and record citations

outside of the word limit that a division of this court had previously

authorized. We agree.

78
¶ 197 Defendant’s opening brief initially contained almost 36,000

words and one appendix. See C.A.R. 28(g)(1)(“An opening . . . brief

must contain no more than 9,500 words.”). A division of this court

struck the opening brief, but it granted defendant leave to file an

amended oversized brief containing no more than 25,700 words.

His amended opening brief fell just within this word limit, but the

number of appendices quintupled, and they contained lengthy legal

and record citations.

¶ 198 Given that the division authorized defendant to file an opening

brief that was two-and-a-half times longer than the length

established by C.A.R. 28(g)(1), we conclude that this addition of

eighteen additional pages of appendices “makes a mockery of the

rules that govern the length of briefs.” Castillo v. Koppes-Conway,

148 P.3d 289, 291 (Colo. App. 2006). We therefore shall not

consider the appendices, including any contentions in them that

are not raised in the opening brief itself. See id.; Legro v. Robinson,

2015 COA 183, ¶ 30 n.8.

B. Insufficiently Developed Contentions

¶ 199 We also will not review contentions that have not been

“sufficiently developed.” See People v. Allman, 2012 COA 212, ¶ 15;

79
see also People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003)(“We

decline to consider a bald legal proposition presented without

argument or development . . . .”). So we will not address the

following contentions that defendant raised in his opening brief.

 Defendant asserts that the trial court should not have

followed section 16-10-110, C.R.S. 2016, and informed the

jury that the prosecution was not seeking the death penalty

as defendant’s punishment. He contends that this statute

was unconstitutional as applied to him.

As far as we can tell from the record, defendant did not

challenge the statute as it applied to him in the trial court.

Instead, he generally objected to the statute’s

constitutionality. He said that “none of the cases that

tested the statute in terms of constitutional fundamental

fairness” had considered the statute when “the highest

charge [was] a class two felony.” He added that, because he

was not facing a capital charge, “injecting the term death

penalty into any of the rhetoric surrounding this case”

could impair his right to a fair trial. He did not expand on

these statements. (Our supreme court has already rejected

80
a facial challenge to the statute. People v. Smith, 848 P.2d

365, 369 (Colo. 1993).)

Defendant raised his as-applied challenges for the first

time on appeal. He contends that the statute was

unconstitutionally applied to him because the instruction

invited the jury to (1) speculate why the death penalty was

not sought; (2) presume that defendant may have “gotten off

easy[]”; and (3) convict with impunity given that “there was

no danger that [defendant] would be subject to the death

penalty.” But defendant (1) did not explain to the trial court

how the instruction deprived him of a fair trial; and

(2) admitted that he could not “tell the court what . . . effect

[the instruction] will [have] on the jury”; and (3) did not

describe any other constitutional problems that the statute

may have presented as applied to him.

We will not consider these as-applied challenges

because defendant did not develop any facts to support

them in the trial court. See People v. Patrick, 772 P.2d 98,

100 (Colo. 1989)(“We . . . stress that we cannot determine

the as-applied constitutionality of a statute based upon an

81
incomplete record of the facts.”); People v. Veren, 140 P.3d

131, 140 (Colo. App. 2005)(“[I]t is imperative that the trial

court make some factual record that indicates what causes

the statute to be unconstitutional as applied.”).

 Defendant contends that the prosecution’s reference to

the death penalty in its opening statement violated a trial

court order. But he did not adequately develop this issue in

the opening brief.

 Defendant asserts that the court’s decision to allow

multiple witnesses to testify about the same information

violated CRE 403, and the sheer mass of the evidence

“overwhelmed and traumatized the jury,” thereby violating

defendant’s rights to due process and to a fair and impartial

jury. But this contention is entirely speculative, so we will

not address it.

 Defendant asserts that, by unduly lengthening the trial,

the cumulative evidence “skew[ed]” the jury pool “in favor of

those who would not be financially impacted by an

estimated nine-week trial.” The result of such “skewing”

was to deny defendant his constitutional right to a fair

82
 cross-section of the community. The record does not

contain any proof of this assertion, and defendant only cites

a law review article to support it.

¶ 200 The judgment of conviction is affirmed.

JUDGE WEBB concurs in part and specially concurs in part.

JUDGE DUNN concurs in part and dissents in part.

83
 JUDGE WEBB, concurring in part and specially concurring in

part.

¶ 201 In general, I concur with Judge Bernard’s opinion and

specifically agree that the judgment of conviction should be

affirmed. However, I write separately to offer two alternative

reasons why defendant’s argument that the trial court effectively

denied him counsel of choice by conditioning payment of costs,

such as for experts and investigators, on public defender

representation fails.

 First, David Lane, while acting as defendant’s pro bono

counsel, invited any error.

 Second, where the General Assembly has limited the

expenditure of public funds, under separation of powers

principles that limitation cannot be circumvented by a chief

justice directive (CJD).

¶ 202 Either of these reasons would avoid the novel constitutional

analysis of the right to counsel that Judge Bernard presents, on

which I take no position. See Developmental Pathways v. Ritter,

178 P.3d 524, 535 (Colo. 2008) (“[T]he principle of judicial restraint

requires us to ‘avoid reaching constitutional questions in advance of

84
 the necessity of deciding them.’” (quoting Lyng v. Nw. Indian

Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988))).

I. Invited Error

A. Background

¶ 203 Shortly after the grand jury indicted defendant, the trial court

held a hearing at which Mr. Lane spoke “on behalf of Aaron

Thompson, who appears in custody.” But rather than entering a

general appearance, Mr. Lane argued:

 “Mr. Thompson is indigent and [he] can’t pay for those

ancillary services necessary to ensure that his rights under

the 6th Amendment to the effective assistance of counsel are

really protected.”

 “[I]f the defendant is indigent, regardless of whether counsel

has been retained for a dollar or a million dollars or is

volunteering, the court is obligated to provide indigent [sic]

services to the indigent defendant.”

 “And the case in Colorado to the contrary stands alone in the

country, and the case is cited as People v. Cardenas, [62] P.3d

621 [Colo. 2002] . . . .”

85
  “So what this Court has to wrestle with right now is, I am

retained counsel, Cardenas says this Court has no authority

to order ancillary services to be paid for by governmental

funding for Mr. Thompson. But Mr. Thompson wants me to

represent him, and under [United States v. Gonzalez-Lopez,

548 U.S. 140 (2006)], that rises to the level of constitutional

significance.”

 “[B]ecause Mr. Thompson cannot possibly get a fair trial

without those [ancillary] services, if my being his lawyer will

preclude that from happening, I, over objection, will step aside

and ask that this Court appoint the Public Defender’s

Office . . . .”

¶ 204 Mr. Lane ended with, “[t]he Court, under Cardenas, can’t give

them to Mr. Thompson, so I’m throwing it now in the Court’s lap.”

Then, when the trial court declined “the opportunity to overrule

Cardenas,” it sought to confirm that Mr. Lane would not be entering

an appearance for defendant. Mr. Lane replied, “That’s fair. And

it’s over Mr. Thompson’s objection, Your Honor, under the 6th and

14th Amendments to the United States Constitution and analogous

provisions of the Colorado Constitution.”

86
¶ 205 Then the public defender entered an appearance for

defendant.

B. Law

¶ 206 “Generally, the invited error doctrine precludes appellate

review of errors created by a party.” People v. Gross, 2012 CO 60M,

¶ 8. This is so because a defendant “may not complain on appeal of

an error that he has invited or injected into the case; he must abide

the consequences of his acts.” People v. Zapata, 779 P.2d 1307,

1309 (Colo. 1989). Simply put, this doctrine “[o]perates to bar a

disappointed litigant from arguing on appeal that an adverse

decision below was the product of error, when that party urged the

lower court to adopt the proposition now alleged to be error.”

Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002) (quoting Brett v.

Great Am. Recreation, 677 A.2d 705, 717 (N.J. 1995)). Even so,

where “the error resulted from counsel’s oversight, . . . the appeal

[i]s not precluded by the invited error doctrine.” Gross, ¶ 9.

¶ 207 But on the facts presented in Gross, the court held that invited

error prevailed over alleged attorney oversight. It explained:

In this case, however, defense counsel argued
affirmatively for the initial aggressor
instruction despite opposition by the

87
 prosecution. The invited error doctrine bars
precisely such an intentional, strategic
decision. This is especially true where the
prosecutor objected to the proposed
instruction. If this court were to extend the
attorney incompetence exception to deliberate,
strategic acts by counsel, then trial courts
would be required to evaluate the propriety of
counsel’s trial strategy to determine whether to
give a requested instruction. Such a result
would be an untenable burden because
assessing counsel’s strategy does not fall
within the purview of the trial court. Instead,
where counsel’s trial strategy is arguably
incompetent, it should be challenged on
grounds of ineffective assistance of counsel
under Crim. P. 35(c).

Id. at ¶ 11.

¶ 208 Since Gross, the supreme court has not addressed whether a

deliberate act by counsel would alone trigger invited error, leaving

the choice between strategy and incompetence for postconviction

inquiry. A division of this court has read Gross “to distinguish

errors based on trial counsel’s omission from those of commission

in limiting appellate review.” People v. Foster, 2013 COA 85, ¶ 36.

“While appellate courts may review the former for plain error, the

latter generally will be unreviewable.” Id. Other divisions have

agreed. See People v. Riley, 2016 COA 76, ¶ 9 (“In this case,

defense counsel requested that the jury be instructed on the lesser

88
 non-included offense of public indecency. He now complains that

the evidence is insufficient to support the charge he requested.”);

People v. Becker, 2014 COA 36, ¶ 20 (“The invited error doctrine

does not, however, apply to errors that resulted from a defendant’s

inaction rather than affirmative conduct.”); People v. Zadra, 2013

COA 140, ¶ 48 (“We may review errors based on trial counsel’s

omissions for plain error, but errors created by trial counsel are not

reviewable.”).

¶ 209 To be sure, as the dissent points out, “[t]rial judges are

presumed to know the law and to apply it in making their

decisions.” (Citation omitted.) But the dissent cites no Colorado

authority, nor am I aware of any, using this presumption to trump

invited error. Instead, the dissent quotes from People v. Lara, 103

Cal. Rptr. 2d 201, 220 (Cal. Ct. App. 2001). But that court

recognized “the court’s duty can only be negated in that ‘special

situation’ in which defense counsel deliberately or expressly, as a

matter of trial tactics, caused the error.” Id. at 220. And in

Colorado, as discussed above, counsel’s affirmative action obviates

the tactical or inadvertence inquiry.

89
¶ 210 “Whether the invited error doctrine applies here is an issue we

consider de novo.” Becker, ¶ 20.

C. Application

¶ 211 Everyone would agree that Mr. Lane acted affirmatively in

juxtaposing defendant’s need for public funding of expenses to

obtain effective assistance of counsel against the Cardenas holding

that such funding was available only to defendants who were

represented by the public defender’s office. But did Mr. Lane inject

the error defendant now argues on appeal — that the court should

have ruled, sua sponte, that Cardenas has been superseded by

Chief Justice Directive 04-04, Appointment of State-Funded

Counsel in Criminal Cases and for Contempt of Court (amended

Nov. 2014)? That CJD allows the judicial department to pay “a

defendant’s court costs, expert witness fees, and/or investigator

fees” if “[t]he defendant . . . is receiving pro bono, private counsel.”

Id. at § V(D)(1)(b) (formerly § IV(D)(b)).

¶ 212 On the one hand, Mr. Lane did not mention the CJD. Even so,

arguments raised for the first time on appeal are generally subject

to plain error review. See Reyna-Abarca v. People, 2017 CO 15, ¶ 2

(“We now conclude that unpreserved double jeopardy claims can be

90
 raised for the first time on appeal, and appellate courts should

ordinarily review such claims for plain error.”).

¶ 213 On the other hand, Mr. Lane presented the trial court with a

dilemma: either decline to follow Cardenas because of an

intervening Supreme Court decision and allow defendant to receive

public funding for expenses while represented by Mr. Lane, or

follow Cardenas and appoint the public defender to represent

defendant so that defendant could receive such funding. Thus, Mr.

Lane did not merely make one argument while failing to make

another argument that could, with the invariably perfect wisdom of

hindsight, be raised on appeal. Rather, in highlighting the

consequences of following Cardenas, he told the trial court that

there were only two possible resolutions.

¶ 214 To no one’s surprise, the trial court considered itself bound by

Cardenas, as the later Supreme Court decision Mr. Lane cited did

not address either Cardenas or the question of limiting public

funding of expenses to indigent defendants who are publicly

represented. See People v. Martinez, 254 P.3d 1198, 1202 (Colo.

App. 2011) (“Defendant contends that the rationale of

Hinojos-Mendoza may no longer apply after the decision by the

91
 United States Supreme Court in Melendez-Diaz v. Massachusetts

. . . . We disagree with the hypothetical suggestion attributed to the

Supreme Court. Furthermore, we are bound by our supreme

court’s explicit holdings.”); cf. Day v. Apoliona, 496 F.3d 1027, 1031

(9th Cir. 2007) (district courts are bound by circuit authority unless

there is clearly irreconcilable intervening Supreme Court authority).

¶ 215 In sum, Mr. Lane urged the court to conclude that the

outcome of his request for public funds was binary: either

Gonzalez-Lopez had abrogated Cardenas, or Cardenas precluded

defendant from receiving public funds for trial expenses unless he

chose public defender representation. The court accepted this

argument and selected one of the two options that Mr. Lane

presented. But defendant now rejects Mr. Lane’s argument that the

law presented the court with only two options, and asserts that the

trial court erred when it selected one of the options presented.

¶ 216 I discern no principled distinction between Mr. Lane’s

either/or proposal and defense counsel tendering two different

versions of a jury instruction on the same subject, then urging that

controlling precedent required the trial court to pick one or the

other. After all, “courts[] rely upon the presentation of oral

92
 argument by well-prepared attorneys to assist . . . in reaching an

appropriate resolution of the often difficult questions presented in

the cases before [them].” In re Aguilar, 97 P.3d 815, 818 (Cal.

2004). Because Mr. Lane presented these options as mutually

exclusive, the invited error doctrine prevents defendant from raising

a third option on appeal. See Foster, ¶ 25; cf. United States v.

Falcon, 462 F. App’x 866, 868 (11th Cir. 2012) (unpublished

opinion) (After defendant acknowledged in the district court that the

“loss amount” was either $1.4 or $1.7 million, his appellate

argument that the loss amount was actually zero was barred by

invited error doctrine.).

¶ 217 For these reasons, I would decline to review defendant’s new

appellate argument that the CJD has superseded Cardenas.

II. A CJD Cannot Supersede a Statutory Limitation on the
Expenditures of General Funds

¶ 218 Even if invited error does not prevent us from considering

defendant’s argument that CJD 04-04 requires public funding of

his defense expenses — a proxy for his counsel of choice argument

— I would further conclude that, assuming this CJD gave defendant

access to the public funding that he sought, it cannot supersede the

93
 supreme court’s contrary statutory interpretation in Cardenas. Two

observations book end this conclusion.

¶ 219 First, the allocation of state general revenues is a plenary

power of the General Assembly. Colo. Gen. Assembly v. Lamm, 700

P.2d 508 (Colo. 1985) (holding that governor’s transfer of funds

from executive departments for which funds were appropriated to

other executive departments impermissibly infringed upon General

Assembly’s plenary power of appropriation, and therefore did not

fall within inherent administrative authority of Governor over state

budget). But sometimes, the General Assembly does more by

specifying just how those funds may be spent. Colo. Gen. Assembly

v. Lamm, 704 P.2d 1371, 1381 n.5 (Colo. 1985) (“The right of the

[l]egislature to control the public treasury, to determine the sources

from which the public revenues shall be derived and the objects

upon which they shall be expended, to dictate the time, the manner,

and the means, both of their collection and disbursement, is firmly

and inexpugnably established in our political system.” (quoting

Colbert v. State, 39 So. 65, 66 (Miss. 1905))) (emphasis added). And

in Cardenas, our supreme court held that the General Assembly

had done just that as to public funding of defense costs for

94
 defendants who qualified for public representation. 62 P.3d at 622-

23.

¶ 220 Second, by statute, indigent defendants charged with a crime

“are entitled to legal representation and supporting services at state

expense.” § 18-1-403, C.R.S. 2016. In Cardenas, the supreme

court addressed the trial court’s refusal to provide an interpreter at

state expense. 62 P.3d at 622. Although the defendant, who

claimed to speak only Spanish, was represented by private pro bono

counsel who did not, the supreme court affirmed the trial court in

denying the indigent defendant’s request for these services. Id. at

623. Cardenas acknowledged that “indigent defendants are entitled

to state-paid legal representation and supporting services.” Id. at

622. Still, it concluded that if an indigent defendant “wants the

state to pay the costs of his attorney and supporting services, his

only choice is to be represented by the public defender, or . . . a

state-appointed alternate defense counsel.” Id. at 623 (emphasis

added).

¶ 221 The supreme court could have decided the case narrowly by

deferring to trial court discretion. Instead, it came to this

95
 conclusion more broadly, as a matter of statutory interpretation, in

three steps.

 First, it noted the cross-reference in the statute to “in the

manner provided for in articles 1 and 2 of title 21, C.R.S.”1 Id.

at 622.

 Second, it pointed out that “[t]he General Assembly has

created an agency charged with providing legal representation

and services to indigent defendants: the office of state public

defender [which,] upon application from a defendant, is

required to make a determination that the defendant is

indigent before he may obtain the services of that office.” Id.

at 623.

 Third, because the defendant “has not applied for the services

of the public defender,” instead “cho[osing] to be represented

by [pro bono counsel],” it held that he had placed himself on a

different path for obtaining support services. Id.

¶ 222 But despite this statutory interpretation, can a later CJD

create a hybrid path to the same end? Specifically, CJD 04-04

1See §§ 21-1-101 to -106, C.R.S. 2016 (public defender);
§§ 21-2-101 to -107, C.R.S. 2016 (alternate defense counsel).

96
 section V(D)(1)(b) permits public funding of expenses when “[t]he

defendant is indigent and receiving pro bono, private counsel.” I

would say “no,” for the following reasons.

¶ 223 “In Colorado, the General Assembly has retained the power to

formulate the state’s budget.” Colo. Gen. Assembly v. Owens, 136

P.3d 262, 265 (Colo. 2006). And, “‘[n]o moneys in the state treasury

shall be disbursed . . . except upon appropriations made by law, or

otherwise authorized by law.’” People v. Nelson, 2015 CO 68, ¶ 38

(quoting Colo. Const. art. V, § 33), cert. granted sub nom. Nelson v.

Colorado, 579 U.S. __, 137 S. Ct. 30 (2016). The judicial

department enjoys no exception — a court must “follow the

statutes’ instructions on how that money may be used.” Id. at ¶ 39.

¶ 224 As interpreted in Cardenas, 62 P.3d at 622-23, the General

Assembly has provided a framework to fund representation and

support costs for indigent defendants.2 “[W]e are bound by the

2 Although the judicial department collects some revenue directly,
such as through court filing fees, Chief Justice Directive 04-04,
Appointment of State-Funded Counsel in Criminal Cases and for
Contempt of Court (amended Nov. 2014), does not indicate that any
of the funding for expanded support services comes from such
sources, as opposed to from the department’s general fund budget
allocation. See People v. Orozco, 210 P.3d 472, 476 (Colo. App.

97
supreme court’s interpretation of [a] statute.” People v. Nerud, 2015

COA 27, ¶ 20. But by authorizing the expenditure of state funds on

defendants who are represented by separate counsel, the CJD

exceeds the statutory boundaries recognized in Cardenas.3

2009) (“Under CJD 04-04 § IV(D)(c) [currently § V(D)(1)(c)], payment
from the Judicial Department’s budget is appropriate.”). Even so,
the dissent suggests that the record is insufficiently developed to
conclude that defense costs come from general funds allocated to
the judicial department. But Thompson’s supplemental brief did
not raise this concern. To the contrary, it said,
[i]n the fiscal year 2006-2007, the year
relevant to this case, the General Assembly
appropriated funds for ‘the ordinary operating
costs of the executive, legislative and judicial
departments of the state.’ See H.B. 06-1385,
65th Gen. Assemb. 2d Reg. Sess., Ch. 394 at
2498 (2006). Included within the
appropriations is a fund for ‘trial court
programs,’ which later appropriations clarify
as including ‘Court Costs, Jury Costs, and
Court-appointed Counsel.’ See H.B. 06-1385
at 2624-25; H.B. 16-1243, 7th Gen. Assemb.,
2d Reg. Sess., Ch. 375 at 16 (2016). Thus, the
legislature specifically granted the judicial
department an appropriation to fund trial
court programs, and did not place limitations
on the funding of indigent defense.

3Apart from separation of powers, where a statute provides a
means for doing something, principles of statutory interpretation
disfavor reading into it an entirely different means for doing the
same thing. See Hiner v. Johnson, 2012 COA 164, ¶ 19 (“Because
C.R.C.P. 102(a) expressly refers to the property of defendants, but

98
¶ 225 To be sure, the Chief Justice is the executive head of the

judicial department and “implements her administrative authority

by means of Chief Justice Directives, under the supreme court’s

general superintending power over the court system.” Office of

State Court Adm’r v. Background Info. Servs., Inc., 994 P.2d 420,

430-31 (Colo. 1999). However, this authority has limits. Cf. Colo.

Common Cause v. Gessler, 2012 COA 147, ¶ 18 (“[An] agency does

not have the authority to promulgate rules that modify or

contravene statutory or constitutional provisions.”), aff’d, 2014 CO

44; Colo. Consumer Health Initiative v. Colo. Bd. of Health, 240 P.3d

525, 528 (Colo. App. 2010) (An exercise of administrative authority

“may not modify or contravene an existing statute, and any rule

that is inconsistent with or contrary to a statute is void.”).

¶ 226 “[S]eparation of powers requires that the co-equal branches of

government, the executive, legislative, and judicial, exercise only

does not refer to the property of plaintiffs in cases in which
defendants do not assert a counterclaim, we apply the canon of
statutory interpretation expressio unius exclusio alterius — ‘the
inclusion of certain items implies the exclusion of others.’”) (citation
omitted); see also Harrah v. People ex rel. Attorney Gen. of Colo., 125
Colo. 420, 426, 243 P.2d 1035, 1038 (1952) (“[W]e cannot by
implication read into it words that are not present, nor supply
remedies not clearly provided by language employed in the act.”).

99
 their own powers and not usurp the powers of another co-equal

branch of government.” People v. Hollis, 670 P.2d 441, 442 (Colo.

App. 1983). That said, “the judicial branch of government

possesses the inherent power to determine and compel payment of

those sums of money which are reasonable and necessary to carry

out its mandated responsibilities.” Pena v. Dist. Court, 681 P.2d

953, 956 (Colo. 1984). But I discern no basis for concluding,

especially after Cardenas, that “mandated responsibilities” of the

judicial branch include providing public funding to privately

represented, indigent defendants who can obtain that funding

merely by accepting public defender or alternate defense counsel

representation.

¶ 227 In resolving conflicts between statutes and court rules, the

distinction between procedure — where the rule controls — and

substance — where the statute controls — marks the boundary.

See People v. Prophet, 42 P.3d 61, 62 (Colo. App. 2001). And “rules

adopted to permit the courts to function efficiently are procedural.”

Id.

¶ 228 In contrast, substantive law creates, defines, and regulates

rights and duties. Id. As relevant here, section 18-1-403 regulates

100
 an indigent defendant’s right to a state-funded defense. For such

defendants, that right has constitutional significance. Thus,

because section 18-1-403 deals with more than mere procedure or

court efficiency, the CJD must yield to the statute.

¶ 229 In sum, because the General Assembly has chosen to restrict

disbursement of general funds for support services to indigent

defendants who are publicly represented, in my view a CJD may not

provide for disbursement of the same funds where representation is

by private pro bono counsel.

¶ 230 For the foregoing reasons, I concur with Judge Bernard that

the judgment of conviction should be affirmed.

101
 JUDGE DUNN, concurring in part and dissenting in part.

¶ 231 On a fall day in 2005, Mr. Thompson reported that his

daughter, A.T., had run away. Early on, however, the police began

to suspect that A.T. was actually dead and that Mr. Thompson was

involved in her death. During the two-year police investigation that

followed, David Lane, a private defense attorney, represented Mr.

Thompson. After a grand jury indicted Mr. Thompson, the trial

court concluded that, should Mr. Lane continue to represent Mr.

Thompson as private counsel, the court had no authority to

authorize state-funded support services. The trial court was

mistaken. The upshot of this mistake was that — although Mr.

Lane was Mr. Thompson’s counsel of choice — Mr. Lane ceased

representing Mr. Thompson.

¶ 232 Because I conclude that the trial court had discretion to

consider and authorize the requested support services, I do not see

this case as presenting a choice between competing constitutional

rights. Colorado does not require an indigent defendant to choose

between ancillary support services and his counsel of choice. Much

to the contrary, an indigent defendant in this state may be

represented by a private, pro bono attorney and still receive

102
 state-funded support services. Given this, I find it unnecessary to

tread the same constitutional path as my valued colleague writing

for the majority. My focus is admittedly much narrower. In my

view, because the trial court erred in failing to recognize its

authority to consider and authorize the requested support services,

Mr. Thompson effectively was deprived of his Sixth Amendment

right to the counsel of his choice. Mindful that my colleagues

disagree with this conclusion, albeit for different reasons, I

respectfully dissent from Part II of the majority opinion.

I. The Request for State-Funded Support Services

¶ 233 At Mr. Thompson’s first court appearance, Mr. Lane entered

his appearance “with an asterisk” and explained that he had been

representing Mr. Thompson “for about two years,” Mr. Thompson

wanted Mr. Lane to continue to represent him, and Mr. Lane was

willing to continue to do so. Mr. Lane then asked the court to

authorize state-funded expert and investigative services, which he

contended were necessary to represent Mr. Thompson effectively.

But, he continued, “[I]f this [c]ourt won’t do that, I’m registering an

objection under the 6th and 14th Amendments to the United States

Constitution.” And he stated that, “over objection, [he would] step

103
 aside” to allow Mr. Thompson these services through

court-appointed counsel.

¶ 234 Despite Mr. Lane’s plea for state-funded support services, he

also told the court that it did not have the authority to grant his

request because the Colorado Supreme Court prohibited it under

People v. Cardenas, 62 P.3d 621 (Colo. 2002). Still, Mr. Lane

suggested the trial court could authorize the services because

Cardenas was inconsistent with an intervening United States

Supreme Court case, United States v. Gonzalez-Lopez, 548 U.S. 140

(2006), which, he asserted, recognized the constitutional

significance of depriving a defendant of his counsel of choice.

¶ 235 Mr. Lane summarized his request for state-funded services by

arguing that, “under Gonzale[z]-Lopez,” Mr. Thompson “wants me to

be his lawyer of constitutional significance.” But, Mr. Lane added,

“[Mr. Thompson] needs these [state-funded support] services,” and

“[t]he [c]ourt, under Cardenas, can’t give them to [him].” As a

result, Mr. Lane finished, “I’m throwing it now in the [c]ourt’s lap.”

¶ 236 Thanking Mr. Lane for “the opportunity to overrule Cardenas,”

the trial court “respectfully declined.” The court then stated that it

was “not going to rule on the issue of ancillary services.” And the

104
 court stated its understanding that, “based on [its] nonruling on

ancillary services, [Mr. Lane would] not enter[] [his] appearance at

that point, understanding [Mr. Lane had] made [his] record.” Mr.

Lane acknowledged the court’s summary was “fair” but again

reminded the court that it was “over Mr. Thompson’s objection . . .

under the 6th and 14th Amendments to the United States

Constitution and analogous provisions of the Colorado

Constitution.”

¶ 237 As it goes, I find no fault in the trial court’s view of Cardenas.

Cardenas considered whether a trial court abused its discretion in

declining to authorize state-funded interpreter services to a

defendant represented by private, pro bono counsel. Cardenas, 62

P.3d at 622. In doing so, it construed Colorado’s indigent defense

services statute, section 18-1-403, C.R.S. 2016.1 And it concluded

1 Colorado’s indigent defense services statute states that indigent
defendants charged with a crime “are entitled to legal
representation and supporting services at state expense.”
§ 18-1-403, C.R.S. 2016. Unlike other indigent defense services
statutes, Colorado’s statute does not expressly prohibit an indigent
defendant represented by private counsel from receiving
state-funded support services. Cf. Utah Code Ann. § 77-32-303(2)
(West 2012) (Where a defense services provider is available, a court
“may not order” and “may not provide defense resources for a

105
 that, under that statute, if an indigent defendant “wants the state

to pay the costs of his attorney and supporting services, his only

choice is to be represented by the public defender, or . . . a

state-appointed alternate defense counsel.” Cardenas, 62 P.3d at

622-23.

¶ 238 So if Cardenas were the end of the story, I would agree with

the majority’s outcome. After all, neither this court nor the trial

court can overrule Cardenas.

¶ 239 But Cardenas should not have ended the inquiry. After

Cardenas was decided — but several years before Mr. Thompson’s

indictment — the Chief Justice of the Colorado Supreme Court

issued a directive expanding the circumstances under which

state-funded support services may be provided to indigent

defendants. See Chief Justice Directive 04-04, Appointment of

State-Funded Counsel in Criminal Cases and for Contempt of

Court, § V(D) (amended Nov. 2014) (CJD 04-04) (formerly § IV(D));

see also People v. Stroud, 2014 COA 58, ¶ 8 (recognizing that CJD

defendant who has retained private counsel” except in
circumstances outlined in the statute.). It is simply silent on the
issue.

106
 04-04 “expanded the circumstances in which support services may

be provided”).

¶ 240 The CJD plainly provides that “[i]n certain circumstances, a

defendant’s court costs, expert witness fees, and/or investigator

fees may be paid by the Judicial Department even though the

defendant is not represented by state-funded counsel.”2 CJD 04-04

§ V(D). The directive allows courts to authorize the judicial

department to pay for these support services, if any of the following

applies:

a) [t]he defendant is indigent and proceeding
pro se;

b) [t]he defendant is indigent and receiving pro
bono, private counsel;

c) [t]he defendant is receiving private counsel
but becomes indigent during the course of the
case, and the court has determined that the
defendant lacks sufficient funds to pay for
court costs and that it would be too disruptive
to the proceedings to assign the Public
Defender or Alternate Defense Counsel to the
case.

Id.

2 Since its 2004 inception, CJD 04-04 has allowed courts to
authorize state-funded support services for indigent defendants
represented by pro bono, private counsel.

107
¶ 241 It is hardly remarkable to conclude that a trial court’s failure

to recognize its discretion under CJD 04-04 is an abuse of

discretion. Two divisions of this court have already so concluded.

Stroud, ¶ 12; People v. Orozco, 210 P.3d 472, 476 (Colo. App. 2009).

In both cases, the defendants were indigent and represented by

private counsel. Stroud, ¶ 10; Orozco, 210 P.3d at 474. Each

defendant requested state-funded expert witness services. Stroud,

¶ 10; Orozco, 210 P.3d at 474. And each trial court denied the

requests under the mistaken belief that they had no authority to

grant the requested state-funded services. Stroud, ¶ 11; Orozco,

210 P.3d at 475. On appeal, separate divisions of this court held

that the denial of the requested services without considering CJD

04-04 was an abuse of discretion. Stroud, ¶ 12; Orozco, 210 P.3d at

476. Because each defendant continued with his private attorney,

this court reviewed the denial of the requested support services for

constitutional harmless error. Stroud, ¶ 14; Orozco, 210 P.3d at

476. In Stroud, the error was constitutionally harmless. Stroud,

¶ 17. In Orozco, it was not, and the defendant’s convictions for

incest and sexual assault on a child were reversed. Orozco, 210

P.3d at 477.

108
¶ 242 Consider then Mr. Lane’s statements to the trial court that:

(1) he was Mr. Thompson’s retained counsel;3 (2) he had been

representing Mr. Thompson “for about two years”; (3) Mr.

Thompson was indigent but wanted Mr. Lane to continue

representing him; (4) he would continue to represent Mr.

Thompson; but (5) in order to do so effectively, he needed the court

to authorize state-funded support services. These statements

should have alerted the trial court that CJD 04-04 was at play and

that it allowed the court to consider — and, if appropriate, to

authorize — Mr. Lane’s request for state-funded services.

¶ 243 True, neither Mr. Lane nor the prosecution brought CJD

04-04 to the trial court’s attention. But that was also true in Stroud

and implied in Orozco. See Stroud, ¶ 12 (acknowledging the parties

did not bring CJD 04-04 to the court’s attention); Orozco, 210 P.3d

at 475 (concluding that the trial court was mistaken that “no

mechanism existed under the law to provide the necessary funds”

for state-funded expert witness services). Put simply, the

conclusion that the trial court abused its discretion is no different

3Although Mr. Lane used the word “retained,” the parties agree that
Mr. Lane was representing Mr. Thompson pro bono.

109
 here than it was in Stroud and Orozco. See People v. Darlington,

105 P.3d 230, 232 (Colo. 2005) (The “failure to exercise discretion is

itself an abuse of discretion.”); accord DeBella v. People, 233 P.3d

664, 668 (Colo. 2010).4

¶ 244 I am tempted to agree with my respected specially concurring

colleague’s conclusion that Mr. Lane invited any error in framing

the issue the way he did. But for two reasons, I can’t. First, Mr.

Lane did not affirmatively misstate the law. His summary of

Cardenas was accurate. The most I can glean from the record is

that he was either unaware of CJD 04-04 or neglected to raise it.

But errors of omission are reviewable under Crim. P. 52(b). See

People v. Gross, 2012 CO 60M, ¶ 16 (stating that errors resulting

from the attorney’s “oversight or inadvertent omission” are not

precluded under the invited error doctrine but are reviewed for

plain error); People v. Foster, 2013 COA 85, ¶¶ 34-40

4 Had the trial court recognized its discretion, it could have then
considered whether Mr. Lane’s general request was sufficient to
show that the requested support services were reasonable,
necessary, and helpful to the defense. See People v. Mossmann, 17
P.3d 165, 171 (Colo. App. 2000). Given that the court did not
recognize or exercise its discretion, I cannot agree with the People
that because Mr. Lane’s showing was insufficient the trial court did
not abuse its discretion.

110
 (distinguishing between errors of commission and those of omission

and concluding the latter are reviewable for plain error).

¶ 245 Second, defense counsel’s inadvertence or ignorance of the law

does not relieve a trial court from knowing and applying the law.

People v. White, 870 P.2d 424, 440 (Colo. 1994) (“Trial judges are

presumed to know the law and to apply it in making their

decisions.”) (citation omitted); see also People v. Lara, 103 Cal. Rptr.

2d 201, 220 (Cal. Ct. App. 2001) (Absent some evidence of

deliberate trial tactics, “[e]ven in the context of invited error, . . . the

trial court rather than defense counsel has the ultimate duty to

apply the correct law.”). Because Chief Justice Directives are an

expression of judicial branch policy and must be “given full force

and effect in matters of court administration,” Hodges v. People,

158 P.3d 922, 926 (Colo. 2007), I presume too that trial courts

know what the directives say. As well, an attorney’s ignorance or

inadvertence should not excuse a trial court from knowing the

scope of its discretion. See, e.g., Stroud, ¶ 12; Orozco, 210 P.3d at

476.

¶ 246 One final observation. Although my specially concurring

colleague questions the Chief Justice’s authority to issue CJD

111
04-04 section V(D), the People did not initially mount a

constitutional — or any — challenge to the legality of CJD 04-04.5

Because no party raised or argued that the CJD violates separation

of powers principles (or is inconsistent with section 18-1-403),

either at trial or in the original appellate briefs, I would reserve

consideration of such issues for another case and another time.6

E.g., People v. Lybarger, 700 P.2d 910, 915 (Colo. 1985) (It is

“[a]xiomatic to the exercise of judicial authority . . . that a court

should not decide a constitutional issue unless and until such

issue is actually raised by a party to the controversy and the

necessity for such decision is clear and inescapable.”); People v.

Bondsteel, 2015 COA 165, ¶ 30 (cert. granted Oct. 31, 2016) (same).

5 After oral argument, and on its own initiative, this court invited
the parties to respond to a limited inquiry about CJD 04-04.
6 Because the parties did not raise the issue, the record leaves

unanswered questions such as: (1) What funds are used to pay
support services? (2) If paid with judicial department funds, are
those funds general funds? (3) If so, are funds paid for
state-funded support services reasonable and necessary to carry
out the judicial department’s mission? (4) If they are reasonable
and necessary, then what is the impact of our supreme court’s
conclusion that in a separation of powers battle involving the
payment “of those sums of money which are reasonable and
necessary to carry out its mandated responsibilities[,]” the judiciary
wins? See Pena v. Dist. Court, 681 P.2d 953, 956-57 (Colo. 1984).

112
¶ 247 At the end of it all, the trial court’s misapprehension of its

authority to consider and authorize state-funded support services

effectively resulted in a deprivation of Mr. Thompson’s counsel of

choice. The only remaining question is whether the court’s error

requires reversal.

II. Deprivation of Mr. Thompson’s Counsel of Choice

¶ 248 The Sixth Amendment right to counsel, along with the right to

counsel of one’s choice, form the “root meaning of the constitutional

guarantee” of the Sixth Amendment. Gonzalez-Lopez, 588 U.S. at

147-48. When a defendant is deprived of these rights, no further

showing of prejudice is necessary — the deprivation of counsel of

one’s choice is the loss of a constitutional right. See id. at 148; see

also Anaya v. People, 764 P.2d 779, 783 (Colo. 1988).

¶ 249 I, of course, agree that an indigent defendant does not have

the same range of choices as a defendant who can pay. For

instance, an indigent defendant may not insist on representation by

an attorney that he cannot afford or who declines to represent him.

Wheat v. United States, 486 U.S. 153, 159 (1988). Nor may an

indigent defendant select his court-appointed counsel. E.g.,

Gonzalez-Lopez, 548 U.S. at 151. Once an indigent defendant has

113
 obtained counsel, however, the defendant’s choice of continued

representation by appointed counsel is “afforded great weight.”

People v. Nozolino, 2013 CO 19, ¶ 17; accord Rodriguez v. Dist.

Court, 719 P.2d 699, 707 (Colo. 1986); see also Williams v. Dist.

Court, 700 P.2d 549, 555 (Colo. 1985) (“[Indigent defendants] are

entitled to continued and effective representation by court

appointed counsel . . . .”); People v. Isham, 923 P.2d 190, 193 (Colo.

App. 1995) (“When counsel is retained, there is a presumption in

favor of a defendant’s choice of counsel.”).

¶ 250 But what happens when an indigent defendant secures private

counsel at no cost to the state? More to the point, does the Sixth

Amendment right to counsel of choice attach? I think so. Once the

parties enter an attorney-client relationship, I see no material

difference between an indigent defendant and one who can pay.

See Ingram v. Justice Court, 447 P.2d 650, 655 (Cal. 1968) (“[O]nce

counsel is appointed or undertakes to represent an indigent

defendant, whether it be the public defender or a volunteer private

attorney, the parties enter into an attorney-client relationship which

is no less inviolable than [if] counsel had been retained.”) (citation

omitted). The attorney-client relationship is real even if the

114
 defendant is impoverished. And in such a scenario, the indigent

defendant’s choice of counsel has the same constitutional

significance as a defendant with the ability to pay. I can’t reconcile

a different outcome with the Supreme Court’s declaration that “the

Sixth Amendment guarantees a defendant the right to be

represented by an otherwise qualified attorney . . . who is willing to

represent the defendant even though he is without funds.” Caplin

& Drysdale, Chartered v. United States, 491 U.S. 617, 624-25

(1989); accord Gonzalez-Lopez, 548 U.S. at 144. Taking that

statement at face value, I conclude that if a private attorney agrees

to represent an indigent defendant pro bono, the Sixth Amendment

right to counsel of choice attaches.

¶ 251 And in this view, I do not stand entirely alone. See Robinson v.

Hotham, 118 P.3d 1129, 1133 (Ariz. Ct. App. 2005) (concluding that

where an indigent defendant is able to obtain representation by

non-publicly funded counsel, he possesses “rights under the Sixth

Amendment”); English v. Missildine, 311 N.W.2d 292, 294 (Iowa

1981) (“[N]o reason exists for depriving an indigent of the same right

of choice [of counsel] as a person of means when the indigent is

able to obtain private counsel without public expense.”); State v.

115
 Sims, 968 So. 2d 721, 722 (La. 2007) (“The right to private, non-

appointed counsel of choice does not distinguish between a paid

attorney and a pro bono lawyer.”); State v. Jones, 707 So. 2d 975,

977 (La. 1998) (same); State v. Brown, 134 P.3d 753, 759 (N.M.

2006) (“[A]n indigent defendant represented by pro bono counsel, is

entitled . . . to the constitutional right to counsel.”); accord Moore v.

State, 889 A.2d 325, 349-366 (Md. 2005) (Bell, C.J., dissenting).

¶ 252 Because the trial court misapprehended its discretionary

authority to award state-funded support services, Mr. Lane

discontinued his representation of Mr. Thompson. The court’s error

therefore effectively denied Mr. Thompson his Sixth Amendment

right to his counsel of choice. The United States Supreme Court

tells us that this error is structural and requires reversal.

Gonzalez-Lopez, 548 U.S. at 150.

¶ 253 Make no mistake; I recognize the evidence overwhelmingly

showed that Mr. Thompson horribly abused these children and that

he conspired with Ms. Lowe to commit the crimes of which he was

convicted. The Sixth Amendment to the United States Constitution,

however, applies not just to the innocent.

116
¶ 254 Knowing that under my analysis a retrial would be necessary

and that many of Mr. Thompson’s remaining issues would likely

arise on remand, I otherwise agree in full with my colleagues’

considered resolution of those issues.

¶ 255 From Part II of the majority opinion, I respectfully dissent.

117