People v. Cook, 2014 Colo. App. LEXIS 516

Background

Defendant Steven M. Cook was tried and convicted on numerous sexual-exploitation and related charges involving his daughter C.C., his former girlfriend's daughter S.G., and other children; convictions followed a retrial after an earlier appeal vacated prior convictions.
Allegations included taking children to a basement to view pornography, masturbating, photographing the girls with a webcam, and sexual touching; semen with defendant's DNA was found on a basement wall.
After the first trial and remand, new disclosures from S.G. and new forensic recovery of deleted images from defendant’s computers (using technology not previously available) prompted the prosecution to add 14 additional counts prior to retrial.
Defense sought to (1) bar the additional counts as vindictive punishment for appealing, (2) pierce the rape-shield statute to admit evidence about an alternate suspect (R.R.), (3) exclude CRE 404(b) evidence from an earlier Boulder matter, and (4) obtain a fourth continuance to prepare an expert and pursue defenses; the court denied these requests.
At retrial the jury convicted Cook on all counts; the trial court imposed consecutive terms for an aggregate sentence of 92 years to life; the court of appeals affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecution could amend the information on remand to add 14 counts	Prosecution: new evidence (S.G.'s later disclosures and deleted images recovered with new technology) justified adding counts	Cook: adding counts punishes him for prevailing on appeal and chills appeals	Court: Amendment permitted — new evidence unavailable at first trial overcame presumption of vindictiveness (Pearce/Smith/Blackledge framework)
Whether trial court erred denying motion to pierce rape-shield statute to admit R.R.-related evidence	Prosecution: rape-shield protects victims; no relevance shown	Cook: R.R. was an alternate suspect; girls learned sexual knowledge from him; evidence relevant to identity/motive	Court: Denial affirmed — defendant failed to overcome presumption of irrelevance and proffer lacked direct connection or similarity required for alternate-suspect evidence
Admissibility of CRE 404(b) evidence from Boulder County matter	Prosecution: prior acts and pornography relevant to identity, intent, common scheme, absence of mistake; admissible under Spoto test	Cook: Prior-act evidence (and acquitted conduct) was inadmissible and prejudicial	Court: Admission proper — trial court found reliability, logical relevance independent of propensity, and probative value not substantially outweighed prejudice; limiting instructions given
Denial of fourth continuance for defense expert / additional preparation	Defense: expert needed more time to analyze forensic evidence; counsel needed time to pursue alternate-suspect and alibi evidence	Prosecution: defense delayed disclosure of expert and had prior opportunities; data available earlier; no showing of actual prejudice	Court: Denial proper — no abuse of discretion; defense had notice, prior continuances, expert produced a report and testified; no prejudice shown

Key Cases Cited

North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (resentencing on remand must not be vindictive; increased sentence must rest on objective new information)
Alabama v. Smith, 490 U.S. 794 (U.S. 1989) (presumption of vindictiveness requires a reasonable likelihood standard; increased penalty may be based on information unknown at original sentencing)
Blackledge v. Perry, 417 U.S. 21 (U.S. 1974) (prosecutor may not add charges post-appeal absent new evidence supporting them)
People v. Williams, 916 P.2d 624 (Colo. App. 1996) (application of Pearce principles to amendments and sentencing on remand)
People v. Conley, 804 P.2d 240 (Colo. App. 1990) (standard for admitting prior-act testimony when reliability established)
People v. Spoto, 795 P.2d 1314 (Colo. 1990) (four-part test for admissibility of other-acts evidence under CRE 404(b))