A Colorado appeals panel has reversed two of Josias Deonicio Ortiz's convictions stemming from a 2022 Arapahoe County trial on child sex-related crimes, finding that the trial judge mishandled both his alibi testimony and a dispute over attorney-client privilege tied to a video Ortiz emailed his own public defender. The rest of his convictions were upheld.
The three-judge Colorado Court of Appeals panel ruled 3-0 on October 29 in People v. Ortiz, with Judge Melissa C. Meirink authoring the opinion alongside judges Grant T. Sullivan and Daniel M. Taubman, according to Colorado Politics. Ortiz was convicted at trial of several child sex-related crimes after prosecutors said he developed an online relationship with a 13-year-old child, exchanged intimate photos with her, met her in person on two occasions, and had sexual contact with her, per the same report.
The Alibi Dispute at Trial
On appeal, Ortiz argued that Arapahoe County District Court Judge Ryan J. Stuart improperly barred him from presenting alibi evidence. His defense had notified the court 21 days before trial that Ortiz was in U.S. Customs and Border Protection custody in 2017 during the time of the alleged encounters with the victim, Colorado Politics reported. Colorado law requires defendants to provide alibi notice at least 35 days before trial, though judges may bypass that deadline for good cause.
Stuart rejected the defense's late notice, telling the court, “Four years? I can't find that is good cause,” and warning that “a continuance of the trial at this point would just make a mockery of this case and the justice system,” according to Colorado Politics. The prosecution had objected to the proposed alibi evidence, and Stuart barred it entirely, even though Ortiz's defense lawyer had said both a defense investigator and Ortiz himself could testify about the circumstances. Ortiz ultimately did not testify at his trial.
Appeals Court Splits the Difference
The appeals panel clarified that barring testimony about an alibi does not automatically require reversal of a conviction. Judge Meirink wrote that a defendant's own decision to testify should not surprise the prosecution, according to Colorado Politics, and the panel found that Stuart failed to distinguish between Ortiz's ability to testify about his own whereabouts and the late-disclosed alibi evidence from other witnesses.
Per Colorado Lawyer's account of the ruling, the trial court misapplied the disclosure requirement rule by precluding Ortiz from presenting his own alibi testimony. Even so, the panel found no reasonable possibility that excluding Ortiz's alibi testimony contributed to his conviction, the same account states, in part because the evidence against him was described as overwhelming. The panel did uphold Stuart's decision to exclude the defense investigator's alibi testimony as a sanction for the late disclosure, with Colorado Lawyer noting the record supports that call given the noncompliance with disclosure rules.
A Video Emailed to His Own Lawyer
The case's second major issue arose when Ortiz emailed a nude video of the victim to his public defender, including a Spanish-language message the attorney did not understand, Colorado Politics reported. The public defender consulted a supervisor, and the public defender's office ultimately disclosed the video to prosecutors and withdrew from representing Ortiz. Prosecutors then added two child sexual exploitation charges based on Ortiz's possession of the video.
Stuart permitted prosecutors to question Ortiz's former attorneys about the video and ruled that his distribution of the material to his own attorney was not privileged under Colorado law, invoking the crime-fraud exception, which removes attorney-client confidentiality when communications are intended to further a crime. But Colorado Lawyer's account says the appeals court found the trial court erred by not following the required two-step process for applying that exception.
The appellate panel found the trial court made no findings that Ortiz sent the email to further an improper end he knew or should have known about, and prosecutors failed to prove Ortiz sent the video to further a crime, according to Colorado Politics. Evidence instead suggested Ortiz thought the video would help his defense. As a result, the panel reversed Ortiz's two convictions tied to the emailed video and will allow prosecutors to pursue a new trial on those two charges.
Colorado Lawyer's account identifies the reversed convictions as counts 6 and 7, with the case remanded for a new trial on those counts while the judgment was affirmed in all other respects. The underlying Colorado Court of Appeals decision was marked as unpublished, according to a filing from the Colorado Judicial Branch, though the full text of that opinion was not independently available for this report.
