The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY August 29, 2019

No. 18CA0264, People v. Sharp — Criminal Procedure — New Trial — Postconviction Remedies — New Trial Based on Newly Discovered Evidence; Attorneys and Clients — Ineffective Assistance of Counsel

A division of the court of appeals holds that a defendant

asserting a claim for ineffective assistance of counsel under Crim. P.

35(c) based on counsel’s failure to file a motion for a new trial must

prove prejudice resulting from the failure. This means the

defendant must prove that the trial court would have granted the

motion. COLORADO COURT OF APPEALS

Court of Appeals No. 18CA0264 Adams County District Court No. 11CR1307 Honorable Ted C. Tow, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Harley David Sharp,

Defendant-Appellee.

ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE J. JONES Román and Rothenberg*, JJ., concur

Announced August 29, 2019

Dave Young, District Attorney, Michael Whitney, Deputy District Attorney, Brighton, Colorado, for Plaintiff-Appellant

Mallika L. Magner, Alternate Defense Counsel, Crested Butte, Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 The People appeal the postconviction court’s order granting

the Crim. P. 35(c)(2) motion of defendant, Harley David Sharp, and

ordering a new trial. We reverse and remand with instructions to

reinstate the judgment of conviction and the sentence imposed. We

first conclude that defendant didn’t establish prejudice resulting

from his trial attorney’s failure to investigate. And we conclude that

to establish ineffective assistance of trial counsel where counsel

failed to move for a new trial, a defendant must demonstrate a

reasonable probability that the court would have granted the

motion. Prejudice can’t be presumed in this situation, and in this

case, defendant didn’t establish a reasonable probability that a

motion for a new trial would have been granted.

I. Background

¶2 The People charged defendant with sexually assaulting his

daughter between 2008 and 2010 when she was between two and

five years old. The victim’s great aunt had reported the assaults to

the department of social services after the victim confided in her

and spontaneously engaged in aggressive sexual behavior in late

2010.

1 ¶3 At trial, the victim struggled to remember details. But she

testified that her father had touched her buttocks, touched and

licked her vagina, and had her touch his penis. The victim’s mother

testified that one night she woke up and saw defendant touching

the victim’s vagina while also touching himself. She told defendant

to stop, but she didn’t report the incident. 1 A sexual assault nurse

examiner (SANE) who examined the victim shortly after the victim’s

great aunt reported the assaults testified that she didn’t find any

physical trauma. But according to the SANE, that was a fairly

typical result for the type of contact the victim and her mother

accused defendant of engaging in. (The SANE had been told the

victim hadn’t had any contact with her father for at least two

months.) She also said that only about four percent of the children

she has examined for evidence of sexual assault showed any

physical trauma.

1At the time of trial, the victim’s mother had pleaded guilty to sexual assault and attempted sexual assault relating to the same conduct with which defendant was charged, and was serving a seven-year prison sentence.

2 ¶4 A jury found defendant guilty of sexual assault on a child,

sexual assault on a child as a pattern of abuse, and sexual assault

on a child by one in a position of trust.

¶5 At defendant’s sentencing hearing, R.H., a cousin of the

victim’s mother, spoke with defense counsel’s investigator and

made some new allegations. R.H. said that the victim had asked

her “what would happen if I lied?” — a statement R.H. assumed

meant the victim was lying about her father assaulting her. R.H.

also told the investigator that, in 2010, the victim’s grandmother

had offered to pay R.H. to make false allegations of sexual assault

against the grandmother’s husband (or ex-husband) to get “revenge”

against him for refusing to pay rent to her. Defense counsel didn’t

move for a new trial based on R.H.’s allegations.

¶6 A division of this court affirmed defendant’s convictions on

direct appeal. People v. Sharp, (Colo. App. No. 13CA1761, June 11,

2015) (not published pursuant to C.A.R. 35(f)).

¶7 Defendant filed a pro se motion (followed shortly thereafter by

a supplemental motion from newly appointed postconviction

defense counsel) for postconviction relief under Crim. P. 35(c). He

sought a new trial based on newly discovered evidence (see Crim. P.

3 35(c)(2)(V)) — specifically, the information R.H. had given the

investigator — and alleged that his trial counsel had been

ineffective in a variety of ways (see Crim. P. 35(c)(2)(I)). As now

relevant, defendant alleged that his trial counsel provided ineffective

assistance by failing to investigate potential witnesses (one of whom

was R.H.) and by failing to move for a new trial under Crim. P. 33

after R.H. came forward with new information.

¶8 The postconviction court held an evidentiary hearing on the

motion. Defendant testified that in late 2007 or early 2008, the

grandmother picked up the victim from the babysitter and took her

home to defendant. The grandmother told him that she had seen

inflammation and green discharge on the victim’s vaginal area after

picking her up. He said that he “flipped” and took the victim to the

hospital, where a doctor examined her and didn’t find any

inflammation or green discharge. He said he told trial counsel

about the incident before trial, but counsel failed to investigate

further or to seek information from the hospital where the victim

had been examined. R.H. testified about her conversations with the

victim, the grandmother, and the defense investigator.

4 ¶9 The postconviction court rejected many of defendant’s claims,

but found merit in two. First, it found trial counsel’s failure to

investigate defendant’s assertion that he had taken the victim to a

hospital to be examined during the same period he was allegedly

assaulting her was ineffective assistance that prejudiced defendant.

On this basis, the court vacated defendant’s convictions and

ordered a new trial. Second, it found that trial counsel’s failure to

move for a new trial after R.H. came forward was ineffective

assistance. The court said it did not need to determine whether

such a motion would have been successful, reasoning that the

failure to move for a new trial is like a failure to perfect an appeal, a

circumstance in which the loss of the appellate proceeding

constitutes the required prejudice. So the remedy for a failure to

move for a new trial, the court said, would be to restore defendant’s

opportunity to seek a new trial. 2

2 The court addressed this issue only as a backstop in case this court disagreed with its conclusion on the prior hospital visit issue. There would be no point in allowing defendant to move for a new trial if this court were to affirm the postconviction court’s ruling granting a new trial.

5 II. Discussion

¶ 10 The People challenge both of the postconviction court’s bases

for finding ineffective assistance of counsel. We agree with them as

to both.

A. Applicable Law and Standard of Review

¶ 11 To prevail on a claim of ineffective assistance of counsel under

Rule 35(c), a defendant must show that (1) counsel’s performance

fell below an objective standard of reasonableness and (2) counsel’s

deficient performance prejudiced him. Strickland v. Washington,

(1984). There is a strong presumption that

counsel’s performance did not fall below an objective standard of

reasonableness.

. To prove prejudice, the defendant must

show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.”

; accord Ardolino v. People,

(Colo. 2003) (“[A] reasonable probability means a probability

sufficient to undermine confidence in the outcome.”).

¶ 12 A postconviction court’s ruling on a Rule 35(c) motion presents

a mixed question of fact and law. Dunlap v. People,

(Colo. 2007). We defer to the court’s findings of fact if they

6 have record support, but we review any legal conclusions de novo.

These legal conclusions to which we do not defer include “the

ultimate determinations on Strickland’s performance and prejudice

prongs.” People v. Sifuentes,

, ¶ 16; see People v.

Newmiller,

.

B. Analysis

1. Failure to Investigate

¶ 13 The postconviction court found that trial counsel’s failure to

further investigate the 2007 or 2008 hospital visit met both

Strickland prongs: (1) it fell below the objective standard of

reasonableness and (2) “[t]his information, if true, may very well

have had some impact on the jury’s consideration of the facts.”

This is so, the court said, because this evidence would have shown

“that during the same time period Defendant was alleged to have

been perpetrating upon this child, the child was examined by a

doctor, who had found no signs of physical abuse.” The court

concluded that “while it is entirely possible that a jury will still

convict Defendant, the Court finds that the confidence in the verdict

is sufficiently undermined[.]”

7 ¶ 14 We don’t address the postconviction court’s finding of

ineffective assistance because we disagree with its ultimate

determination of prejudice. See Strickland,

(“[A]

court need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant

as a result of the alleged deficiencies.”); People v. Villanueva,

(“If a court determines that a defendant has failed to

prove either prong of the Strickland analysis, it may deny an

ineffective assistance claim without addressing the other prong.”).

¶ 15 To show prejudice, defendant had to show a reasonable

probability that the result of the trial would have been different had

defense counsel investigated the hospital visit and introduced

related evidence at trial. See Villanueva, ¶ 67 (A defendant “must

do more than simply allege that other evidence could have aided his

defense; he must identify the evidence and demonstrate that it

would have advanced his defense.”); People v. Pendleton,

(“[T]he mere possibility that additional investigation

would have revealed useful information does not establish

ineffective assistance.”).

8 ¶ 16 We conclude that, for the following reasons, defendant failed to

meet his burden:

• The SANE who examined the victim in early 2011

testified that only four percent of over 600 children

whom she had examined for sexual assault showed

signs of irritation or trauma. She explained that

children heal “really quickly” and often the abuse is

“gentle.” Defense counsel didn’t challenge any of that

testimony (and defendant doesn’t contend he should

have).

• The People didn’t allege that defendant had committed

any acts of penetration or any other forceful acts one

might expect to cause physical trauma.3

• The first examination of the victim allegedly occurred in

late 2007 or early 2008. There was therefore only a

small overlap, if any, between the time of that

examination and the period covering the charges

3 The People argued and presented evidence of only nonforceful touching and licking. The jury made specific findings as to the particular acts defendant had committed. All involved “touching” or “licking” either the victim’s or defendant’s genitals.

9 (January 1, 2008, to December 10, 2010). Indeed, the

evidence strongly points to defendant having committed

the charged acts in 2010, two or more years after the

first examination. The victim testified that she was six

years old when defendant touched her. (She actually

didn’t turn six until July 5, 2011.) Her mother testified

that she saw one of the incidents in the summer of

2010. (She claimed to have seen only that one

incident.) Defendant testified that he was separated

from the victim’s mother from July 2008 to August

2010, he was homeless during much of that time, the

victim lived with her mother during that time, and he

had very little contact with the victim during that time.

And the victim told her great aunt about defendant’s

acts in late 2010, about the same time the great aunt

noticed the victim exhibiting inappropriate sexual

behavior.

• This wasn’t a typical child sex assault case, where the

only evidence is the child victim’s testimony. As noted,

the victim’s mother testified that she once saw

10 defendant touching the victim while the victim’s pants

were down. And the mother had pleaded guilty to a

sexual offense against the victim arising from that

incident.

¶ 17 In light of all this, we conclude that the potential evidence of

the first examination would have had only minimal relevance, and

virtually no exculpatory value. The nature of the charged conduct

(supported by both the victim’s and her mother’s testimony) and the

SANE’s testimony were entirely consistent with any finding of no

physical trauma.

¶ 18 Though defendant argues that taking his daughter to a

hospital for a sexual assault examination isn’t the conduct of one

who has sexually assaulted his daughter, and therefore evidence of

that event would have negatively impacted the victim’s and her

mother’s credibility, he overstates the point. After all, there was a

potential gap of more than two years between the first examination

and the acts with which he was charged.

¶ 19 Defendant’s argument that the evidence would have

undermined the grandmother’s credibility fares no better.

11 ¶ 20 According to defendant’s testimony at the postconviction

hearing, it was the grandmother who told defendant the victim may

have been sexually assaulted by a babysitter, which prompted him

to take the victim to the hospital in late 2007 or early 2008. So,

defendant says, had the jury learned that the grandmother had

accused someone else of sexually assaulting the victim, it might

have viewed her less credibly. But the grandmother’s credibility

wasn’t an issue at trial. She didn’t testify, and no one testified that

the grandmother had ever accused defendant of sexually assaulting

the victim.4 The only things mentioned about the grandmother

were that she sometimes babysat the victim and had spoken to the

victim about defendant after the police arrested defendant. 5

¶ 21 In sum, defense counsel’s failure to investigate the 2007 or

2008 examination doesn’t undermine our confidence in the

4 The grandmother didn’t testify because defense counsel successfully argued she shouldn’t be allowed to do so because her presence during the victim’s testimony violated the court’s sequestration order. Defendant has never asserted that his counsel provided ineffective assistance in making that request. 5 The victim testified that her grandmother talked to her (after she

had come forward) about getting her father help and had told her to “just say the truth.”

12 outcome of the trial. The postconviction court therefore erred in

setting aside defendant’s convictions and ordering a new trial.

2. Failure to Move for a New Trial

¶ 22 Though we reverse the postconviction court’s decision to set

aside defendant’s convictions, we also must address its finding that

counsel provided ineffective assistance by failing to move for a new

trial. This is so because the postconviction court ordered that

defendant be allowed to file a motion for a new trial in the event we

reversed its decision to vacate the convictions. Such a motion could

conceivably result in a new trial. Functionally, therefore, the

postconviction court’s ruling on the failure to move for a new trial

could have the same effect as a ruling setting aside the convictions.

We conclude that the postconviction court erred in granting

defendant relief on this claim.

¶ 23 The postconviction court concluded that counsel provided

ineffective assistance by failing to move for a new trial after R.H.

came forward at the sentencing hearing. The court reasoned that

R.H.’s assertion that the grandmother had offered to pay R.H. to

falsely accuse the grandmother’s husband to get revenge against

her husband and R.H.’s assertion that the victim had said “what

13 would happen if I lied?” were “potentially exculpatory.” That

information, the court said, could have affected the jury’s

assessment of the victim’s credibility and supported “the possible

defense that [the grandmother] planted the allegations with the

[victim].” (Emphasis added.) So, the court concluded, trial counsel

provided ineffective assistance by failing to file a motion for a new

trial based on this “newly discovered” evidence.

¶ 24 But the court didn’t find that this evidence met the test for

granting a new trial based on newly discovered evidence. Indeed,

the court said it didn’t need to “determine whether a new trial

would have been granted.” Instead, citing People v. Long,

(Colo. App. 2005), the court determined that, like the

forfeiture of an appeal, “the loss of the ability to present an

argument for a new trial is sufficient prejudice under Strickland.”

¶ 25 The postconviction court erred in relieving defendant of the

obligation to show Strickland prejudice. And because defendant

didn’t establish that the new evidence met the requirements for

granting a new trial, the postconviction court erred in granting

defendant relief on this claim.

14 a. Defendant Was Required to Show Strickland Prejudice

¶ 26 To reiterate, Strickland generally requires a showing that the

defendant was prejudiced — that is, that there is a reasonable

probability that the result of the proceeding would have been

different but for counsel’s deficient performance. Strickland,

. Such proof of actual prejudice is necessary

because of the “strong presumption of reliability” attached to the

judgment.

; see Smith v. Robbins,

(2000); People v. Valdez,

(Colo. App. 2007).

¶ 27 Only in very limited circumstances is prejudice presumed. A

complete denial of counsel falls in this category, United States v.

Cronic,

(1984), as does a complete failure to

subject the prosecution’s case to meaningful adversarial testing,

, and a situation in which even fully competent counsel

couldn’t provide effective assistance,

.

¶ 28 More specifically relevant to this case, so does counsel’s failure

to perfect a defendant’s desired appeal. Roe v. Flores-Ortega,

(2000); Long,

. In such a case,

the deficiency “deprive[s] [the defendant] of the appellate proceeding

altogether.” Roe,

; accord Long,

;

15 see also Roe,

(comparing the complete denial of

counsel, for which prejudice need not be shown, to “[t]he even more

serious denial of the entire judicial proceeding itself, . . . to which

[the defendant] had a right”). The upshot is that unlike a case

where the defendant claims his counsel provided ineffective

assistance during the appeal, for which the defendant must show

that he would have prevailed on appeal but for the deficient

performance, Robbins,

(unreasonable failure to file

a merits brief on appeal required showing of actual prejudice); Long,

, in the circumstance where counsel fails to appeal

in contravention of a defendant’s wishes, no such showing is

required.

¶ 29 In Valdez, a division of this court extended this principle to a

case in which postconviction counsel failed to timely pursue a

motion under Crim. P. 35(c) as requested by the defendant,

resulting in the postconviction court deeming the motion barred by

the doctrine of laches.

. In reversing, the

division concluded that because counsel’s ineffectiveness had

caused the defendant to be denied “the judicial proceeding he

16 sought” — the Rule 35(c) proceeding — the defendant didn’t have to

show Strickland prejudice.

.

¶ 30 Our takeaways from this line of authority are (1) absent one of

the situations identified in Cronic, a defendant must show actual

prejudice unless counsel’s ineffectiveness caused the forfeiture of a

“proceeding” in its entirety; and (2) a “proceeding” in this context

means the whole of a discrete phase of a criminal prosecution. In

Colorado, these discrete phases include (1) a trial proceeding, from

the commencement of the case to the resolution of all allowed post-

judgment, pre-appeal motions in the trial court; (2) an appellate

proceeding, including at least a defendant’s appeal as a matter of

right to this court; 6 and (3) a postconviction proceeding under Rule

35(c).

¶ 31 With these principles in mind, we hold that counsel’s failure in

this case to file a motion for a new trial didn’t result in the forfeiture

of an entire proceeding but was, at most, ineffective assistance in

6 We need not decide whether supreme court review, to which, with the exception of capital cases, a defendant has no right, constitutes a separate proceeding. We observe, however, that in People v. Valdez,

(Colo. 1990), the supreme court held that a defendant who claimed that his counsel should have filed a petition for a writ of certiorari after an adverse decision by the court of appeals was required to show prejudice.

17 the course of a trial proceeding. And just as a defendant must

show actual prejudice as a result of deficient performance in the

course of an appellate proceeding, see Robbins,

;

People v. Valdez,

(Colo. 1990), or in the

course of a Rule 35(c) proceeding, see People v. Fitzgerald,

(Colo. App. 1998) (court properly denied postconviction

relief where the defendant failed to show any prejudice caused by

the previous postconviction counsel’s actions), a defendant is

required to show prejudice as a result of counsel’s deficient

performance in the course of a trial proceeding, see Bell v. Cone,

(2002) (where counsel didn’t entirely fail to

subject the prosecution’s case to meaningful adversarial testing,

but merely failed to do so at specific points — by failing to adduce

mitigating evidence and failing to make a closing argument —

prejudice would not be presumed).

¶ 32 Consider the analogous circumstance of counsel failing to

move to suppress evidence. Such a motion, like a motion for a new

trial, is filed within a proceeding. And granting a motion to

suppress may result in the dismissal of charges. Yet, the Supreme

Court has held that a defendant seeking postconviction relief based

18 on counsel’s failure to file such a motion must demonstrate actual

Strickland prejudice by proving that the motion would have been

granted. Kimmelman v. Morrison,

(1986) (“[T]he

defendant must also prove that his Fourth Amendment claim is

meritorious and that there is a reasonable probability that the

verdict would have been different absent the excludable

evidence . . . .”); accord People v. Terry,

, ¶ 31; People v.

Vicente-Sontay,

.

¶ 33 Consider as well the equally analogous circumstance of

counsel failing to move for a judgment of acquittal. In that

circumstance, a defendant must also show Strickland prejudice.

See, e.g., Rivera-Rivera v. United States,

(1st Cir.

2016) (a defendant must satisfy the prejudice prong when seeking

relief for ineffective assistance of counsel based on counsel’s failure

to move for acquittal); Commonwealth v. Hanible,

, 442-

43 (Pa. 2011) (the defendant’s ineffectiveness claim failed where he

did not demonstrate “a reasonable probability that the trial court

would have granted a motion for judgment on [sic] acquittal”).

¶ 34 We don’t see any principled difference in this context between

failing to file a motion to suppress or failing to move for a judgment

19 of acquittal and failing to file a motion for a new trial. As we see it,

all such failures are failures within a proceeding, not failures that

deprive a defendant of “an entire judicial proceeding.”

¶ 35 Rule 35(c) itself also supports our conclusion. Subsection

(c)(2)(V) says that a defendant may seek postconviction relief if

there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice.

In other words, a defendant may obtain postconviction relief under

Rule 35(c)(2)(V) based on newly discovered evidence only by making

essentially the same showing required to succeed on a Crim. P. 33

post-trial motion for a new trial based on newly discovered

evidence. See People v. Gutierrez,

(Colo.

1981) (setting forth a defendant’s burden on a Rule 33 motion for a

new trial based on newly discovered evidence); People v. Gee,

(same); People v. Muniz,

(Colo.

App. 1996) (holding that the same elements apply to a claim under

Rule 35(c)(2)(V)). A defendant may not avoid that burden simply by

20 repackaging his newly discovered evidence claim as one for

ineffective assistance of counsel.

¶ 36 As noted, the only case the postconviction court cited in

support of its conclusion was Long. Long, however, involved the

forfeiture of the entire appellate proceeding. Defendant doesn’t cite

any case, and we haven’t found one, in Colorado or elsewhere,

indicating that losing the opportunity to move for a new trial is a

forfeiture of an entire judicial proceeding such that a showing of

Strickland prejudice isn’t required. On the contrary, numerous

cases hold that a showing of Strickland prejudice is required in this

context. See, e.g., United States v. Higgs,

(4th Cir. 2011) (a defendant must show a likelihood of prevailing on

a motion for a new trial to establish prejudice based on counsel’s

failure to file such a motion); Wilson v. Henry,

(9th Cir. 1999) (“[B]ecause the motion [for a new trial] almost

certainly would have failed, [the defendant] has not demonstrated

that he was prejudiced by counsel’s refusal to make it.”); Manley v.

State,

(Fla. Dist. Ct. App. 1992) (there is no

per se entitlement to relief when counsel fails to file a timely motion

for a new trial); State v. C.D.L.,

(Utah Ct. App.

21 2011) (the defendant failed to show prejudice from counsel’s failure

to move for a new trial because he couldn’t show that he was

entitled to a new trial). 7 For the reasons discussed above, we find

these authorities persuasive.

b. Defendant Failed to Show Strickland Prejudice

¶ 37 To show that a motion for a new trial would have succeeded,

defendant had to show at the postconviction hearing that (1) the

evidence — R.H.’s testimony about what the victim and the

7 See also, e.g., Ingram v. Sec’y, Fla. Dep’t of Corr.,

, 801 (11th Cir. 2018) (no deficient performance or prejudice where the defendant can’t show he would have been entitled to a new trial if his counsel had filed a motion); Weaver v. United States,

(8th Cir. 2015) (the defendant wasn’t prejudiced by counsel’s failure to move for a new trial when evidence wasn’t newly discovered); Diaz v. United States,

(11th Cir. 2008) (newly discovered impeachment evidence was insufficient to justify a new trial, so the defendant failed to show that there was a reasonable probability of a different result had her counsel filed a motion for a new trial); Jewson v. Crosby, No. 3:04CV71/MCR/MD,

, at *7-8 (N.D. Fla. Mar. 11, 2005) (unpublished report and recommendation) (declining the defendant’s request to presume prejudice where counsel failed to move for a new trial; loss of an evidentiary hearing on a motion for a new trial is not a forfeiture of an entire judicial proceeding), adopted as modified,

(N.D. Fla. June 16, 2005) (unpublished opinion), aff’d,

(11th Cir. 2006); State v. Batek,

(Mo. Ct. App. 1982) (“The fact of untimely filing [for a motion for new trial], by itself, does not compel reversal; it is also essential that the defendant show some error by the trial court which could have resulted in a successful appeal, had the motion been filed on time.”).

22 grandmother had said to her — was discovered after trial; (2) he

and his attorney were diligent in attempting to uncover it before

trial; (3) the evidence would have been material and not merely

cumulative or impeaching; and (4) the evidence probably would

have resulted in an acquittal if presented at trial. Gutierrez,

; see Crim. P. 35(c)(2)(V). He failed to meet that burden.

¶ 38 Initially, we reject defendant’s argument that the

postconviction court “implicitly” found all of these factors save

whether he could have discovered the evidence through the exercise

of reasonable diligence before trial. The court specifically said that

it need not determine whether a motion would have been

successful, and its order doesn’t include an express finding on any

of the required elements. Nor, contrary to defendant’s assertion,

does the record of the postconviction hearing establish all of the

required elements.

¶ 39 First of all, defendant knew of R.H. before trial. Though he

testified that he told his attorney about R.H. before trial, the

postconviction court found him not credible on that point.

Defendant’s failure to tell his attorney of a potential defense witness

of which he was aware is, by itself, enough to defeat any newly

23 discovered evidence claim. Cf. People v. Gallegos,

,

(1974) (“Clearly, evidence within the defendant’s

knowledge before trial does not constitute newly discovered

evidence.”).

¶ 40 Second, the evidence that the victim asked R.H. “what would

happen if I lied” may have been of some impeachment value, but

not enough to be of “consequence to the outcome.” Farrar v. People,

(Colo. 2009) (The evidence “must be of sufficient

consequence for reasons other than its ability to impeach, or cast

doubt upon, the evidence already presented at trial. It must be

consequential in the sense of being affirmatively probative of the

defendant’s innocence, whether that is accomplished by helping to

demonstrate that someone else probably committed the crime; that

the defendant probably could not have committed the crime; or

even that the crime was probably not committed at all.”) (citations

omitted).

¶ 41 To the contrary, when R.H.’s testimony is read in context, it is

more likely that the victim (if she said this at all) was wondering

whether she should lie by saying defendant hadn’t assaulted her.

On this issue, R.H. testified in full as follows:

24 And on the drive home one day we were talking about her dad. And the conversation got brought up that he was going to be going away to get some help. And I asked [the victim] — I said, well, why do you think your daddy needs help. And she said well because he did bad things to me. And I said are you sure. What kind of things did he do to you. And she said, well, just bad things, I don’t know, just bad things. And so then the conversation went on and at the end of the conversation she said, well, what would happen if I lied.

R.H. questioned the victim’s stated desire to get “help” for her father

and whether the victim was sure her father had done “bad things”

to her. This could have been perceived by the victim as pressure

not to testify against her father. All in all, the exchange was

ambiguous.

¶ 42 Defendant doesn’t explain how R.H.’s testimony about the

grandmother’s offer to pay R.H. to lie about having been assaulted

by the grandmother’s husband would have been admissible.

Because the grandmother didn’t testify, and because the

grandmother’s statements to R.H. would have been offered for their

truth, R.H.’s statements would have been inadmissible hearsay at

trial. See CRE 801, 802. And because there was no evidence of any

discussion between the victim and her grandmother about

25 defendant’s touching of the victim (or anything else) before the

victim’s outcry, any assertion that the grandmother’s effort to enlist

R.H. in a scheme to falsely accuse the grandmother’s husband

raised the possibility that the grandmother had similarly attempted

to influence the victim would have been utter speculation. It

therefore wouldn’t have been relevant even if it wasn’t inadmissible

hearsay. See CRE 401, 402 (irrelevant evidence is inadmissible).

¶ 43 In sum, we conclude that there isn’t a reasonable probability

that defendant would have been granted a new trial had counsel

brought the motion. It follows that defendant isn’t entitled to move

for a new trial.

III. Conclusion

¶ 44 We reverse the order and remand the case to the district court

to reinstate defendant’s judgment of conviction and sentence.

JUDGE ROMÁN and JUDGE ROTHENBERG concur.

26