Peo v. Bosher
Peo v. Bosher
Peo v. Bosher
Opinion
19CA0145 Peo v Bosher 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0145
El Paso County District Court No. 16CR6176
Honorable Scott Sells, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Douglas Bosher,
Defendant-Appellant.
JUDGMENT AFFIRMED, ORDER VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division IV
Opinion by JUDGE GROVE
Richman and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Michael Douglas Bosher, appeals the judgment of
conviction entered on a jury verdict finding him guilty of five counts
of sexual assault on a child by one in a position of trust as part of a
pattern of abuse, along with one count of sexual exploitation of a
child. He also challenges his adjudication as a habitual criminal
and the trial court’s order designating him a Sexually Violent
Predator (SVP). We affirm the judgment of conviction but vacate
Bosher’s SVP designation and remand the case for additional
findings.
I. Background
¶ 2
The victim, A.S., was “[t]hree, about to turn four” when Bosher
started dating her mother. In 2015, when A.S. was fifteen years
old, her father contacted the Colorado Springs Police Department
because “information had come forward confirming that [A.S.] had
been molested.”
¶ 3
In 2014, a year before A.S.’s allegations came to light, police
were investigating a child exploitation case involving Allen Wencker,
Bosher’s former cellmate. When police searched Wencker’s devices,
they found communications between Wencker and Bosher.
Wencker also “indicated” to an investigating officer that “he had
2
discussions about exchanging sexual photographs with [Bosher],”
and the investigating officer confirmed that “[Bosher] had sent
[Wencker] explicit images.”
¶ 4
Police obtained a search warrant for Bosher’s residence,
including his electronic devices. Their search did not uncover any
incriminating physical or digital evidence, but Bosher did make
some statements to the officers that the prosecution introduced at
trial. We describe those statements in more detail below.
II. Discussion
¶ 5
Bosher contends that (1) the trial court erroneously denied his
motion to suppress; (2) the prosecutor committed misconduct
during rebuttal closing argument; (3) the trial court erroneously
designated him as a sexually violent predator; and (4) he was
entitled to a jury trial on the habitual criminal counts.
A. Motion to Suppress
¶ 6
Bosher contends that the trial court erred when it denied his
motion to suppress statements that he made while being
questioned by Sergeant Blackwell, who was present during the
search of his home. He argues that he was in custody during the
search and interrogation but did not receive a Miranda advisement,
3
and that any statements he made should have therefore been
suppressed. We are not persuaded.
1. Standard of Review
¶ 7
Whether a defendant was subjected to custodial interrogation
is a mixed question of law and fact. People v. Pleshakov, 2013 CO
18, ¶ 16. We defer to the trial court’s findings of historical fact if
they are supported by competent evidence in the record, but we
review de novo the legal question of whether those facts establish
that the defendant was (1) in custody and (2) interrogated. Id. Our
analysis is not limited to the trial court’s factual findings and we
may also consider undisputed facts evident in the record. Id.
2. Applicable Law
¶ 8
In order to protect a defendant’s Fifth Amendment privilege
against self-incrimination, the prosecution may not use statements
stemming from his custodial interrogation unless (1) he has been
warned that he has the right to remain silent, that any statement
he makes may be used as evidence against him, and that he has a
right to an attorney, either retained or appointed; and (2) he waives
these rights voluntarily, knowingly, and intelligently. Miranda v.
Arizona, 384 U.S. 436, 467-75 (1966).
4
¶ 9
A person is “in custody” under Miranda if he has been formally
arrested or, “under the totality of the circumstances, a reasonable
person in the defendant’s position would consider himself to be
deprived of his freedom of action to the degree associated with a
formal arrest.” People v. Begay, 2014 CO 41, ¶ 13 (citation
omitted). In determining whether a defendant is in custody, courts
consider the following non-exclusive factors:
(1) the time, place, and purpose of the encounter; (2) the
persons present during the interrogation; (3) the words
spoken by the officer to the defendant; (4) the officer’s
tone of voice and general demeanor; (5) the length and
mood of the interrogation; (6) whether any limitation of
movement or other form of restraint was placed on the
defendant during the interrogation; (7) the officer’s
response to any questions asked by the defendant; (8)
whether directions were given to the defendant during
interrogation; and (9) the defendant’s verbal or nonverbal
response to such directions.
¶ 10
Our inquiry is an objective one. Begay, ¶ 18. Subjective,
“unarticulated thoughts or views of the officers and suspects are
irrelevant.” Id. (citation omitted).
5
3. Matheny Factors
¶ 11
Applying the Matheny factors to the trial court’s factual
findings and the undisputed evidence at the suppression hearing,
we make the following observations.
(1) Time, place, and purpose of the encounter. Bosher made
the statements while his house was being searched
pursuant to a search warrant. He was detained while
the house was cleared, although he was in his kitchen,
a neutral location. He was not handcuffed.
(2) Persons present. Bosher’s fiancee was in the house
during the execution of the search warrant (although
not in the immediate vicinity). Nothing in the record
suggests that the police intentionally isolated Bosher
from his fiancee or from his daughter and son-in-law,
who arrived during the search.
(3) Words spoken to defendant. Blackwell told Bosher he
was not under arrest “several times.” He also informed
Bosher of the underlying reason for the search warrant
and told Bosher that he would be arrested if child
pornography was found.
6
(4) Officer’s tone of voice and general demeanor. The trial
court found “no evidence that any threatening language
was used by [Blackwell] or any raised voices.”
(5) Length and mood of the interrogation. The record does
not reflect how long the interrogation lasted, but the trial
court described it as a “conversation,” and specifically
noted that there was “no evidence of yelling or coercive
conduct.” In response to Bosher’s question about what
the police were looking for, Blackwell told Bosher of the
event that prompted the search warrant — Wencker’s
arrest and the search of his cell phone, which contained
“chats between [Bosher and Wencker] discussing trading
images and child pornography.” The cell phone,
Blackwell told Bosher, contained an image (sent from
Bosher to Wencker) that Bosher said was him “having
sex with a seven-year-old girl.” Bosher replied that “he
wasn’t familiar with th[e] photograph” that Blackwell was
describing, so Blackwell showed Bosher a “sanitized”
copy of it. Bosher responded, “that’s not me” and
indicated that he did not remember having that image.
7
After further discussion, and before telling Bosher that
he was free to leave, Blackwell told Bosher that he would
be arrested “if we find child pornography.”
(6) Limitation of movement or other restraint. At least six
armed officers wearing protective gear executed the
search warrant. When the officers entered the house,
they had their weapons drawn, but they reholstered them
after clearing the residence. Bosher was detained while
the house was being cleared, and during that time he
“was verbally told to move to another spot.” However, the
trial court found that “[a]t no time was [Bosher] in
handcuffs or manhandled in any way, physically
touched, or forcibly moved from one place to another.”
(7) Officer’s response to any questions. Bosher initiated the
conversation with Blackwell when he asked what the
police were looking for. Blackwell showed him the search
warrant and explained that the officers were searching
the residence for child pornography or evidence relating
to child pornography. Bosher replied, “good luck with
that.” Other than initially asking about the reason for
8
the search, Bosher did not ask questions during the
interrogation. At some point during the search, he asked
to put on additional clothing, and the officers allowed
him to do so.
(8) Whether directions were given to the defendant. As noted
above, Bosher was instructed to remain in the kitchen
while the house was being cleared, but Blackwell did not
give Bosher directions during the interrogation.
(9) The defendant’s response to any such directions. Aside
from remaining in the kitchen as requested, Bosher was
not given any directions.
4. Analysis
¶ 12
We conclude that Bosher was not in custody during the
interrogation. It took place in a neutral location pursuant to a
search (and not an arrest) warrant, see People v. Cowart, 244 P.3d
1199, 1204 (Colo. 2010) (noting that a neutral location such as the
defendant’s living room weighed against a determination of
custody), and was conducted by a single officer, see People v.
Figueroa-Ortega, 2012 CO 51, ¶ 9 (noting that defendant was not in
custody, in part because he was questioned “by a single officer in
9
civilian clothes, who neither offered any show of force nor restricted
the defendant’s freedom of movement in any way, and who made no
threats or promises or demands”). Bosher was detained while
officers cleared the house, but he was not handcuffed or physically
touched. See People v. Taylor, 41 P.3d 681, 693 (Colo. 2002)
(finding custody when defendant was detained in a “police
dominated atmosphere where the officers used physical force to
control [d]efendant’s movement”); People v. Breidenbach, 875 P.2d
879, 886 (Colo. 1994) (finding defendant in custody, in part because
officers stopped and interrogated him with guns drawn).
¶ 13
Bosher spoke first, and the encounter was conversational in
tone. Blackwell did not raise his voice, instruct Bosher to do
anything other than remain in the kitchen, or use threatening
language. See People v. Davis, 2019 CO 84, ¶ 34 (noting that open-
ended questions delivered “in a conversational tone [are] of the
exact kind [that] we have found to weigh against a finding of
custody”).
¶ 14
To be sure, there is some evidence that would lend support to
a finding of custody. For example, Blackwell did not inform Bosher
that he was free to leave until after Bosher made the challenged
10
statements. And Blackwell did tell Bosher that he would be
arrested if the searchers found child pornography. But that
statement, standing on its own, did not elevate the discussion into
a custodial interrogation. Cf. Figueroa-Ortega, ¶ 10 (“[M]erely
confronting a suspect with the evidence against him and
threatening, no matter how confidently, to charge him with a crime
at some point in the future does not, by itself, constitute an
infringement on his liberty, much less the kind of infringement
associated with a formal arrest.”).
¶ 15
Weighing the totality of the circumstances, we conclude that a
reasonable person in Bosher’s position would not consider himself
to be deprived of his freedom of action to the degree associated with
formal arrest when he spoke to Blackwell at his residence. As a
result, Bosher was not in custody for Miranda purposes and the
trial court did not err by denying his motion to suppress.
B. Prosecutorial Misconduct
¶ 16
Bosher contends that the prosecutor committed misconduct
during rebuttal closing argument when discussing the possible
alteration of a photograph to eliminate features that would identify
Bosher as the person that it depicted. We disagree.
11
1. Standard of Review
¶ 17
In reviewing prosecutorial misconduct claims, we first consider
the propriety of the prosecutor’s arguments, keeping in mind that
“[w]hether a prosecutor’s statements constitute misconduct is
generally a matter left to the trial court’s discretion.” Domingo-
Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We consider
“the context of the argument as a whole and in light of the evidence
before the jury.” People v. Samson, 2012 COA 167, ¶ 30.
¶ 18
If any of the statements were improper, we review their
“combined prejudicial impact” to determine whether reversal is
required under the applicable standard. Domingo-Gomez, 125 P.3d
at 1053; see also Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
“As to preserved issues, the trial court’s rulings on prosecutorial
misconduct ‘will not be disturbed by an appellate court in the
absence of a gross abuse of discretion resulting in prejudice and a
denial of justice.’” People v. Rhea, 2014 COA 60, ¶ 42 (citation
omitted).
2. Applicable Law
¶ 19
A prosecutor may use legitimate means to bring about a just
conviction but must avoid using improper methods designed to
12
obtain an unjust result. Domingo-Gomez, 125 P.3d at 1048.
Prosecutorial remarks that evidence personal opinion or personal
knowledge, or that inflame the passions of the jury, are improper.
Id. at 1050.
¶ 20
When reviewing allegedly improper comments during closing
arguments, we must consider the comments in the context of the
prosecutor’s closing argument as a whole and in light of all the
evidence. People v. Serpa, 992 P.2d 682, 685 (Colo. App. 1999).
Prosecutors have wide latitude during closing arguments and “may
comment on the evidence admitted at trial, the reasonable
inferences that can be drawn from the evidence, and the
instructions given to the jury.” People v. Welsh, 176 P.3d 781, 788
(Colo. App. 2007); see People v. DeHerrera, 697 P.2d 734, 743 (Colo.
1985) (closing argument may properly include facts in evidence and
any reasonable inferences drawn therefrom.).
3. Additional Facts
¶ 21
The comments in question referenced the photograph that
Bosher texted to Wencker, which depicted a man engaged in a
sexual act with a “minor child female.” In the photograph, the
male’s face is not seen, but he appeared to have “a mole or
13
birthmark on [his] left hip.” Wencker told police “that Mr. Bosher
told him that it was him [Bosher] having sex with her.” When
confronted with the photograph at his residence during the
execution of a search warrant, however, Bosher denied that he was
in it and voluntarily showed Blackwell his left hip, which did not
have a similar mark.
4. Analysis
¶ 22
In closing argument, Bosher’s attorney argued that Bosher
was not in the photograph because he did not have a mole on his
hip. The prosecutor addressed that question in rebuttal as follows.
[O]ne of the last things you saw in evidence, is
the mole. Or the lack — excuse me, the lack of
a mole.
One of the things that I asked their expert
about repeatedly, was the ability to manipulate
a photograph and the different softwares that
are out there. And what I put to you, is that
somebody who is engaged in the distribution of
child pornography, might have a motive to
alter the photograph.
Defense counsel objected to this statement, but the trial court
overruled the objection.
¶ 23
We conclude that the prosecutor’s statement was a fair
response to defense counsel’s “opening salvo,” People v. Perea, 126
14
P.3d 241, 247 (Colo. App. 2005) (citation omitted), and did not
mislead or unduly influence the jury. It was consistent with the
following colloquy between the prosecutor and Bosher’s expert on
computer forensics.
[Prosecutor]: [I]n your expert opinion, would
you say that collectors of child pornography
take every measure they can to oftentimes
change file names or shield what’s in files and
try to keep those images secret?
[Witness]: [T]here are collectors who I would
describe as enormously careful . . . .
. . . .
[Prosecutor]: [I]f the images started out as a
Polaroid and were then converted to a digital
file, they could be manipulated in any number
of ways to include cropping out what we would
commonly understand like the white border
around a Polaroid photo?
[Witness]: Anything is possible.
¶ 24
The court also asked the expert a similar question that had
been submitted by a member of the jury.
[Court]: Are there programs available that
allow for enhancement of photographs?
[Witness]: Yes.
[Court]: I.e. making Polaroids clearer or more
professional level?
15
[Witness]: No. The photo editing
programs . . . that can lighten photographs or
change colors or other such things like that,
they would not be able to enhance the quality
of a photograph.
¶ 25
Given this testimony, we conclude that the prosecutor’s
statement was within the bounds of reasonable inference drawn
from the evidence. The prosecutor did not directly argue that
Bosher altered the photograph in question, rather, he made a
generalization that collectors of child pornography would have
reason to alter photographs and the available tools to accomplish
such a task. This commentary was consistent with the expert’s
testimony and was a reasonable response to defense counsel’s
argument that Bosher was not in the picture because it did not
match Bosher’s physical characteristics.
¶ 26
Accordingly, we discern no abuse of discretion.
C. SVP Designation
¶ 27
Bosher contends, and the People concede, that the trial court’s
findings were insufficient to support his SVP designation because
the trial court did not specifically find that Bosher promoted a
relationship with the victim primarily for the purpose of sexual
16
victimization, as required under section 18-3-414.5(2), C.R.S. 2021.
We agree.
1. Applicable Law
¶ 28
Section 18-3-414.5(2) provides that, based on the results of
the risk assessment prepared by the probation department, the trial
court “shall make specific findings of fact and enter an order
concerning whether the defendant is a sexually violent predator.” §
App. 2009) (remanding for specific factual findings on contested
issues underlying the SVP designation).
¶ 29
Here, the trial court did not make specific factual findings as
to whether Bosher “promoted a relationship” with A.S. Moreover,
the risk assessment indicated that he did not “promote a
relationship.” The record is therefore inadequate to support the
trial court’s generalized finding that Bosher met the criteria for his
SVP designation, and we remand the case for the trial court to
make specific findings on that question as required by section 18-3-
414.5(2), and, if necessary, to correct the mittimus accordingly.
D. Right to Trial by Jury
17
¶ 30
Bosher contends that the trial court erred when the trial
judge, rather than a jury, adjudicated him a habitual offender.
Because it is settled that there is no constitutional right to a jury
trial on habitual offender charges, we discern no error.
1. Applicable Law
¶ 31
The Supreme Court held in Apprendi v. New Jersey, that
“[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. 466, 490 (2000).
2. Analysis
¶ 32
Under the “prior conviction” exception, habitual criminality
may be constitutionally adjudicated by a judge and not a jury. See
Lopez v. People, 113 P.3d 713, 723 (Colo. 2005) (holding the prior
conviction exception to the right to jury trial “remains valid”); see
also Mountjoy v. People, 2018 CO 92M, ¶¶ 11-24 (rejecting a
challenge to Lopez); People v. Pointdexter, 2013 COA 93, ¶¶ 72-73
(“The Colorado Supreme Court reaffirmed the prior conviction
exception in Lopez . . . .”). Accordingly, Bosher was not entitled to a
jury trial on the habitual criminal charges.
18
III. Conclusion
¶ 33
The judgment of conviction is affirmed. We vacate the order
designating Bosher a sexually violent predator and remand for the
trial court to make specific factual findings consistent with this
opinion, and, if warranted, to correct the mittimus accordingly.
JUDGE RICHMAN and JUDGE TOW concur.
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