People v. Battigalli-Ansell, Court of Appeals No. 18CA0899

Docket NºCourt of Appeals No. 18CA0899
Citation492 P.3d 376, 2021 COA 52 M
Case DateApril 22, 2021
CourtCourt of Appeals of Colorado

492 P.3d 376
2021 COA 52 M

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Daniel BATTIGALLI-ANSELL, Defendant-Appellant.

Court of Appeals No. 18CA0899

Colorado Court of Appeals, Division VI.

Announced April 22, 2021
As Modified May 6, 2021

Philip J. Weiser, Attorney General, Trina K. Kissel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Haddon, Morgan, and Foreman, P.C., Norman R. Mueller, Adam Mueller, Denver, Colorado, for Defendant-Appellant


¶ 1 Visitors to many online chatrooms can hide their true selves behind false identities. A much-reproduced New Yorker cartoon depicting a dog at a computer keyboard, observing to a canine friend, "on the internet, no one knows you're a dog," reveals a fundamental truth of cyberspace. An individual communicating with another through chats and instant messages has the ability to fashion an online identity completely separate from one's real persona.

¶ 2 Omegle is a social media site that allows people to communicate anonymously with random strangers through videos and instant messages. Some participants in Omegle choose to cloak themselves with an invented persona during those communications. The option of appearing on an escapist website anonymously makes it impossible to determine whether a person with whom one is chatting on the site is who he or she claims to be. Not everyone who spends time on Omegle is acting a part.

¶ 3 The record reflects that Omegle does not bar children from accessing its website. Nothing on Omegle states that its chat feature

492 P.3d 380

is limited to adult users. Because children can communicate with adults online, the General Assembly has created criminal offenses to protect children under the age of fifteen from website contacts that may result in sexual exploitation or luring. See People v. Helms , 2016 COA 90, ¶ 25, 396 P.3d 1133, 1142 (explaining that "the benefit of protecting children from sexual exploitation via the Internet is an important state interest").

¶ 4 Appellant, Daniel Battigalli-Ansell, was charged with internet luring of a child and internet sexual exploitation of a child based on the sexually tinged messages and images he sent to a person who claimed on Omegle to be a fourteen-year-old girl (the alleged victim). But the alleged victim was, in reality, adult law enforcement personnel searching for individuals preying on children they met online.

¶ 5 The prosecution's evidence included transcripts of Battigalli-Ansell's online chats and exchanges of text messages with the alleged victim. Battigalli-Ansell testified at trial that he believed the alleged victim was a role-playing adult. A jury disagreed and convicted him of internet sexual exploitation of a child based on his communications with the alleged victim.

¶ 6 This appeal presents two issues. First, did the trial court reversibly err by limiting the opinion testimony of Battigalli-Ansell's expert witness? Second, did the trial court err by quashing his subpoena duces tecum for the personnel file of a law enforcement investigator who may have included false information in the warrant the investigator signed for Battigalli-Ansell's arrest?

¶ 7 We hold that the trial court did not abuse its discretion by making these rulings and affirm Battigalli-Ansell's judgment of conviction.

I. Background

¶ 8 On June 24, 2016, Battigalli-Ansell and an investigator with the Jefferson County District Attorney's Child Sex Offender Internet Investigations Unit, who was posing as a fourteen-year-old girl named "Brooke," met on Omegle and exchanged instant messages.

¶ 9 "Brooke" identified herself as a fourteen-year-old girl. Battigalli-Ansell told her he was a twenty-two-year-old male named "Michael." After a brief exchange of messages, Battigalli-Ansell asked "Brooke" whether she would have sex with a twenty-two-year old. "Brooke" replied, "why not?"

¶ 10 They exchanged several more messages, the majority of which were sexual in nature. "Brooke" sent Battigalli-Ansell her alleged phone number. In a text to "Brooke's" phone number, Battigalli-Ansell asked her for a picture and a call to confirm she was a girl. After "Brooke" sent an image of an eighteen-year-old woman (actually, a female intern at the Investigations Unit) and a female investigator claiming to be "Brooke" called him, he sent "Brooke" a photograph of his penis.

¶ 11 The same investigator again randomly connected with Battigalli-Ansell on Omegle on July 28, 2016. This time, Battigalli-Ansell introduced himself as a twenty-two-year-old named "Dan" and the investigator again posed as a fourteen-year-old girl named "Brooke." Battigalli-Ansell and "Brooke" exchanged messages over Omegle. Battigalli-Ansell asked "Brooke" for her number to text her a picture of his penis. "Brooke" gave him a phone number. Battigalli-Ansell and "Brooke" exchanged text messages of a sexual nature and phone calls. Battigalli-Ansell then sent "Brooke" photos of his penis. The charges against Battigalli-Ansell rested on these communications.

¶ 12 Battigalli-Ansell endorsed Dr. Marty Klein, a licensed marriage and family therapist and certified sex therapist, as an expert witness. After several motions and hearings, the trial court issued a written order that significantly limited the opinions Dr. Klein could provide to the jury. At trial, consistent with the court's ruling, Dr. Klein explained fantasy-based erotic role-play and its context in online chat rooms.

¶ 13 The jury convicted Battigalli-Ansell of internet sexual exploitation of a child arising from his communications with "Brooke" on July 28 and 29, 2016. The jury acquitted him of the remaining charges.

492 P.3d 381

II. The Trial Court's Limitations on the Expert's Testimony

¶ 14 Battigalli-Ansell contends that, by limiting the expert witness's testimony, the trial court violated his constitutional right to present a defense.

A. Additional Facts

1. Pre-Trial Motions and Hearings

¶ 15 Battigalli-Ansell's disclosures included an eleven-page summary of Dr. Klein's proposed testimony. The prosecution asked the court to strike all or portions of Dr. Klein's proposed opinion testimony for two principal reasons. First, the prosecution argued that the testimony would not assist the trier of fact to understand the evidence or to determine a fact in issue under CRE 702. Second, the prosecution contended that the testimony would improperly usurp the court's function by expressing an opinion on the applicable law or legal standards. The prosecution did not challenge Dr. Klein's qualifications, however.

¶ 16 The court ordered Battigalli-Ansell to brief "the scope of testimony and possible scenarios under which [Dr. Klein] will testify and what that testimony will entail for each scenario." Defense counsel filed an offer of proof summarizing Dr. Klein's proposed opinion testimony. The prosecution filed an objection to the offer of proof and again asked the court to strike Dr. Klein's proposed testimony in its entirety.

¶ 17 Following this round of briefing, the court held another hearing on Dr. Klein's proposed testimony. At this hearing, the court asked which specific opinions the defense wished to present at trial. Defense counsel responded that Dr. Klein would offer all the opinions "outlined in [the disclosure] until or unless the [c]ourt says [the defense] can't." Dr. Klein, participating by videoconference, then described his proposed trial testimony, which tracked the opinions summarized in the disclosure.

¶ 18 The court subsequently set a status hearing and requested additional briefing on which opinions, if any, Dr. Klein should be allowed to present. In its brief, the prosecution quoted an email exchange with defense counsel addressing the scope of Dr. Klein's proposed testimony. In the email exchange, the prosecution asked defense counsel to confirm that the defense intended to call Dr. Klein at trial to testify regarding four specific opinions:

1. the definition of fantasy role-play and age-play;

2. scientific studies indicate that fantasy role-play is a normal part of human sexual interaction;

3. science indicates that millions of adults play erotic games centered around age-play, and age-play does not indicate a predilection to pedophilia or an inclination to have sex with minors; and

4. the transcripts of Battigalli-Ansell's communications with "Brooke" that Dr. Klein reviewed are "consistent" with fantasy age-play.

¶ 19 Defense counsel responded,

Yes as to the 4 areas you have outlined ....

Dr. Klein will testify ... that fantasy role play is a normal part of human sexual interaction and does not necessarily indicate a real world desire to engage in the role played behaviors outside of the fantasy realm.

Dr. Klein will testify that, upon review of the chats which form the corpus of the charges herein, there is nothing inconsistent with fantasy age play by an individual harboring no desire to move the fantasy into reality.

The basis of Dr. Klein's opinions covers the range set forth in the offers of proof, his report, and his testimony on November 2, 2017, including the extent to which the normalcy of sexual fantasies is not well understood in the general population and that often intimate partners fail to recognize and accept,

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