     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
                                                           February 27, 2020

                                2020COA33

No. 18CA1121, People v. Pratarelli — Crimes — First Degree
Kidnapping — Elements — Forcibly Seize and Carry

     A division of the court of appeals considers the meaning of the

“forcibly seizes and carries” element in the first degree kidnapping

statute, where the defendant was convicted of kidnapping his own

child. The division adopts the plain meaning of the words “force”

and “forcibly” and concludes that, in order to prove the “forcibly

seizes and carries” element of the offense, the prosecution needed to

prove that the defendant used (or threatened to use) power,

violence, or pressure against his daughter in order to seize and

carry her, and that he did so against opposition or resistance. The

division further concludes that, because no custody order restricted

the defendant’s right to the care, custody, and control of his child,

the evidence was insufficient to show that he forcibly seized and
carried his daughter. Because the evidence did not show that the

defendant forcibly seized and carried his daughter, the division

vacates the first degree kidnapping conviction and sentence.

     The division also considers and rejects the defendant’s claim

that the district court impaired his ability to investigate mental

condition evidence and thus violated his constitutional right to

present a defense. The division therefore affirms the remaining

convictions.
COLORADO COURT OF APPEALS                                          2020COA33


Court of Appeals No. 18CA1121
Pueblo County District Court No. 16CR2182
Honorable Kimberly Jo Karn, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marcello Enrique Pratarelli,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, VACATED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE DUNN
                       Román and Casebolt*, JJ., concur

                        Announced February 27, 2020


Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney
General, Daniel E. Rheiner, Assistant Attorney General Fellow, Denver,
Colorado, for Plaintiff-Appellee

The Noble Law Firm, LLC, Antony Noble, Taylor Ivy, Lakewood, Colorado, for
Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Defendant, Marcello Enrique Pratarelli, appeals his judgment

 of conviction entered on jury verdicts finding him guilty of first

 degree kidnapping, second degree kidnapping, use of a stun gun,

 and third degree assault. Because insufficient evidence supports it,

 we vacate the first degree kidnapping conviction. But we affirm the

 remaining convictions.

               I.   Background and Procedural History

¶2    Mr. Pratarelli and his wife separated in September 2016. After

 the separation, they agreed to jointly parent their three-year-old

 daughter. But they didn’t obtain a parenting time (or custody)

 order. Instead, they proceeded under an informal, flexible

 parenting arrangement that varied from week to week, depending

 on their respective schedules. Under this arrangement, on days

 that Mr. Pratarelli parented their daughter, he usually kept her

 overnight and returned her to daycare the next morning.

¶3    At trial, Mr. Pratarelli and his wife agreed that, consistent with

 their parenting arrangement, Mr. Pratarelli picked their daughter

 up from daycare on the afternoon of November 7, 2016. Mr.

 Pratarelli testified that later that night he spoke with his wife on the

 telephone and confronted her about text messages she had


                                    1
 exchanged with another man. After the call ended, Mr. Pratarelli

 explained that he “packed [his daughter] up in the car,” believing a

 drive would help her fall asleep. Once in the car, Mr. Pratarelli

 decided to drive to his wife’s house to continue the confrontation

 about the texts.

¶4    When he reached his wife’s house, he waited in his car with

 his daughter asleep in the back seat. His wife testified that, when

 she arrived home, Mr. Pratarelli opened her car door, pushed her

 against the console, stunned her with a taser, grabbed her by the

 hair, and dragged her down the driveway. Two neighbors testified

 that they heard someone screaming, went outside, and saw Mr.

 Pratarelli run to his car and drive away.

¶5    Back in the car with his still-sleeping daughter, Mr. Pratarelli

 first decided to drive to El Paso, Texas (where he testified his sister

 lived) but ultimately drove to Mexico. While there, Mr. Pratarelli

 and his wife communicated via telephone and email. At trial, his

 wife testified that she begged Mr. Pratarelli to return their daughter,

 and she “assure[ed] him that [she] would drop all of the charges,

 and he would have unsupervised visitation.” She testified she

 offered these concessions to get her daughter back. She explained


                                    2
 that Mr. Pratarelli eventually said, “okay, we’ll get it in writing,” and

 the two arranged to meet in Mexico. They did, and his wife then

 returned to the United States with their daughter.

¶6    After Mr. Pratarelli returned to Colorado, he was arrested and

 charged with second degree kidnapping, use of a stun gun, third

 degree assault, and criminal mischief. These charges all related to

 Mr. Pratarelli’s altercation with his wife.

¶7    Months later, the prosecution filed an amended complaint and

 information charging Mr. Pratarelli with two counts related to his

 daughter — first degree kidnapping and violation of custody. The

 prosecution later dismissed the violation of custody charge.

¶8    The jury acquitted Mr. Pratarelli of criminal mischief, but

 otherwise convicted him as charged. The district court then

 sentenced Mr. Pratarelli to a total of nine years in prison for the

 crimes related to his wife and, consecutive to that, eleven years for

 first degree kidnapping.

                            II.   Parental Rights

¶9    Every parent has a fundamental right to the care, custody,

 and control of their child. Troxel v. Granville, 530 U.S. 57, 66

 (2000); accord In re Parental Responsibilities Concerning B.J., 242


                                      3
P.3d 1128, 1135 (Colo. 2010). “‘Legal custody’ may be taken from a

parent only by court action.” § 19-1-103(73)(a), C.R.S. 2019; see

also § 14-10-108, C.R.S. 2019 (authorizing a court to issue

temporary orders allocating parental responsibilities in a

dissolution of marriage case); 14-10-124, C.R.S. 2019 (requiring a

court to allocate parental responsibilities in a dissolution case). 1

Without such an order, parents share unrestricted custodial rights.

See Armendariz v. People, 711 P.2d 1268, 1270 (Colo. 1986). So,

absent a custody order, a parent generally may not be convicted of

kidnapping his own child. See Commonwealth v. Beals, 541 N.E.2d

1011, 1013 (Mass. 1989) (acknowledging the general rule that,

absent a custody order, neither parent “commits the crime of

kidnapping by taking exclusive possession of the child”); 1 Am. Jur.

2d Abduction and Kidnapping § 35, Westlaw (database updated Jan.

2020). While some states have legislated otherwise, see, e.g., Ariz.


1 Although we use the term “custody,” we recognize that in
dissolution of marriage proceedings, the legislature replaced the
term “custody” with “parental responsibilities.” § 14-10-103(4),
C.R.S. 2019. Because this isn’t a dissolution of marriage case, and
the new term doesn’t change “the legal rights of any custodial
parent with respect to the child,” id., we use the word “custody”
when referring to Mr. Pratarelli’s legal rights with respect to his
daughter.

                                    4
  Rev. Stat. Ann. § 13-1302(A)(2) (2019), Colorado has only directly

  addressed parental kidnapping in its violation of custody order

  statute. See People v. Armendariz, 684 P.2d 252, 257-58 (Colo.

  App. 1983) (Tursi, J., dissenting in part) (“[T]he General Assembly

  has not chosen to criminalize the act of one parent taking a child

  from the physical custody of another parent, absent a court order

  granting custody to the other parent.”), aff’d in part and rev’d in

  part, 711 P.2d 1268 (Colo. 1986); see also Legislative Council of the

  Colo. Gen. Assembly, Preliminary Revision of Colorado Criminal

  Laws, Research Pub. No. 98, at 20-22 (Nov. 1964) (recommending

  the addition of the crime of violation of custody to address the gap

  in law where one parent takes a child in violation of a custody

  order); Ch. 121, sec. 1, § 40-3-304, 1971 Colo. Sess. Laws 422

  (adding violation of custody crime to address parental kidnapping).

¶ 10   Consistent with this rule, our supreme court has concluded

  that “[i]n the absence of a court order granting legal or physical

  custody,” parents “share[] an equal right to the custody of the[ir]

  child.” Armendariz, 711 P.2d at 1270. And because a parent with

  legal custody of a child cannot ordinarily seize that child “without

  . . . consent” (an element of second degree kidnapping), our


                                     5
  supreme court has held that a parent with legal custody cannot

  commit second degree kidnapping. Id. (vacating father’s second

  degree kidnapping conviction); cf. Lee v. People, 53 Colo. 507, 511,

  127 P. 1023, 1025 (1912) (affirming kidnapping conviction where

  father took his child in violation of a custody decree); People v.

  Metcalf, 926 P.2d 133, 141 (Colo. App. 1996) (affirming second

  degree kidnapping conviction where father seized child in violation

  of a custody order).

¶ 11   Despite this constitutional overlay and the undisputed fact

  that Mr. Pratarelli and his wife had no custody order, the interplay

  between the first degree kidnapping charge and Mr. Pratarelli’s

  unrestricted custodial rights was never considered at trial. Nor do

  the parties do so here. Indeed, neither Mr. Pratarelli nor the People

  address how Mr. Pratarelli could “take possession of” (that is seize)

  his daughter when he already had the unrestricted legal right to her

  care, custody, and control. See Metcalf, 926 P.2d at 137 (“seize”

  means “to take possession of forcibly, to grasp, to snatch or to put

  in possession” (quoting Black’s Law Dictionary 1219 (5th ed.

  1979))); Webster’s Third New International Dictionary 2057 (2002)

  (“seize” means “to take possession of”); see also § 19-1-103(73)(a).


                                     6
¶ 12   But because the parties don’t address whether a parent with

  unrestricted physical and legal custody can seize his own child

  under the first degree kidnapping statute, we turn to Mr. Pratarelli’s

  sufficiency challenge.

                     III.    Sufficiency of the Evidence

¶ 13   Mr. Pratarelli contends that the prosecution presented “no

  evidence” that he “forcibly” seized and carried his daughter and,

  thus, the first degree kidnapping conviction must be vacated.

  Under the circumstances here, we agree.

                            A.   Standard of Review

¶ 14   We review sufficiency claims de novo. People v. Rediger, 2018

  CO 32, ¶ 55. In doing this, we consider whether the evidence, when

  viewed in the light most favorable to the prosecution, was “both

  substantial and sufficient to support the conclusion by a reasonable

  mind that the defendant was guilty beyond a reasonable doubt.” Id.

  A criminal verdict may not be based on guessing, speculation, or

  conjecture. People v. Perez, 2016 CO 12, ¶ 25.

¶ 15   We also interpret statutes de novo. Id. at ¶ 8. In doing so, our

  primary task is to give effect to the legislature’s intent. McCoy v.

  People, 2019 CO 44, ¶ 37. To do that, we look first to the plain


                                       7
  language of the statute. Id. A commonly accepted meaning is

  preferred over a strained or forced interpretation. People v. Voth,

  2013 CO 61, ¶ 21. When determining the common meaning of

  undefined statutory words, we may consider a recognized dictionary

  definition. See id. at ¶ 23; People v. Hunter, 2013 CO 48, ¶ 10

  (determining the plain meaning of the statutory term “stranger” by

  consulting Webster’s New College Dictionary and Black’s Law

  Dictionary).

                      B.   First Degree Kidnapping

¶ 16   A person commits first degree kidnapping if, as relevant here,

  he “[f]orcibly seizes and carries any person from one place to

  another” “with the intent thereby to force the victim or any other

  person to make any concession or give up anything of value in order

  to secure a release of a person under the offender’s actual or

  apparent control.” § 18-3-301(1)(a), C.R.S. 2019.2

¶ 17   The General Assembly didn’t define “forcibly” or “force” in the

  first degree kidnapping statute. So we consider the dictionary

  definitions to determine the meaning of these undefined, though


  2 Unless otherwise indicated, references to the first degree
  kidnapping statute are to subsection 301(1)(a).

                                    8
  common, terms. The dictionary tells us that “forcible” means

  “[e]ffected by force or threat of force against opposition or

  resistance.” Black’s Law Dictionary 788 (11th ed. 2019); see also

  Webster’s Third New International Dictionary at 888 (defining

  “forcible” as “effected by force used against opposition or resistance:

  obtained by compulsion or violence”). And “force” means “[p]ower,

  violence, or pressure directed against a person or thing.” Black’s

  Law Dictionary at 787.

¶ 18   Applying these definitions, the prosecution had to show that

  Mr. Pratarelli used (or threatened to use) power, violence, or

  pressure against his daughter to seize and carry her, and that he

  did so against opposition or resistance. After reviewing the record,

  we see no evidence that Mr. Pratarelli did. Specific to the “forcibly

  seize and carry” element, the record here shows only that

          • per the agreement with his wife, Mr. Pratarelli picked his

             daughter up from daycare on Monday, November 7,

             2016;

          • she continued in his care all afternoon and evening;

          • he later put her in his car to go for a drive;

          • she fell asleep in the car;

                                     9
          • she remained sleeping in the car when he assaulted his

             wife; and

          • after the assault, he drove with his still-sleeping daughter

             to Mexico.

¶ 19   Put simply, nothing in this evidence shows Mr. Pratarelli used

  any force (or threat of force) to seize and carry his daughter. More

  to the point, no evidence shows he used (or threatened to use)

  power, violence, or pressure against his daughter to seize and carry

  her against opposition or resistance.

¶ 20   This is perhaps unsurprising given that the focus of the

  kidnapping charge at trial was not on the “forcibly seize and carry”

  element, but on the concession element. See § 18-3-301 (The

  forcible seizure and carrying must be “with the intent . . . to force

  the victim or any other person to make any concession or give up

  anything of value in order to secure a release of a person under the

  offender’s actual or apparent control.”). To the extent the

  prosecution addressed the “forcibly seize and carry” element at all,

  it did so briefly. For instance, in his opening statement, the

  prosecutor said that Mr. Pratarelli drove to Mexico “without [his

  wife’s] permission.” But Armendariz teaches that because no

                                    10
  custody order limited his right to the care, custody, and control of

  his daughter, Mr. Pratarelli didn’t need his wife’s permission or

  consent to exercise control over his daughter. 711 P.2d at 1270;

  see also § 19-1-103(73)(a).

¶ 21   Later, in closing argument, the prosecutor referenced the

  “forcibly seize and carry” element just once, saying only that Mr.

  Pratarelli’s daughter “can’t move herself. She can’t drive herself.

  Her parent does that. He carries her, he moves her from one

  location to the other . . . and that’s why he is guilty . . . .” But

  again, that’s nothing more than a statement that Mr. Pratarelli

  carried his daughter; the prosecution never clearly identified how

  Mr. Pratarelli forcibly took possession of his daughter (assuming, as

  already discussed, that a custodial parent can in fact “seize” his

  own child). At most, the evidence showed that Mr. Pratarelli took

  physical custody of his daughter at daycare under an agreed

  parenting time arrangement. That’s the only evidence of any

  “seizure” we see in the record. But the prosecution never argued

  Mr. Pratarelli seized his daughter when he picked her up at

  daycare, and once he picked her up, Mr. Pratarelli exercised

  uninterrupted legal custody over his daughter.


                                      11
¶ 22   Despite all this, the People argue we should affirm the first

  degree kidnapping conviction. To get there, the People first urge us

  to read an illegal purpose or illegal intent element into the first

  degree kidnapping statute. Since the General Assembly chose not

  to include such elements in the statute, neither may we. See

  Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (a court may not

  add words to a statute).

¶ 23   The People next assert that Mr. Pratarelli’s exercise of parental

  authority “to put his daughter in the car” and drive her to Mexico

  shows he used “power” and that is sufficient to prove he forcibly

  seized and carried his daughter. But because Mr. Pratarelli had

  physical and legal custody of his daughter, the parental relationship

  isn’t sufficient to show that Mr. Pratarelli directed power against his

  daughter to seize and carry her over opposition or resistance. To

  the extent the People suggest he took his daughter to Mexico over

  his wife’s opposition, as already explained, he didn’t need his wife’s

  permission to exercise control over their daughter. See Armendariz,

  711 P.2d at 1270.

¶ 24   In their final salvo, the People argue that assuming the

  prosecution presented no evidence that Mr. Pratarelli “expressly


                                     12
  used force either to seize or carry” his daughter, “there was still

  sufficient evidence” to support the conviction because “there was

  testimony” that Mr. Pratarelli’s daughter “was restrained from

  leaving her father’s car.” But we see two problems with this

  argument. First, the cited testimony doesn’t say that. Rather, the

  testimony sets forth Mr. Pratarelli’s explanation for driving to Texas.

  That testimony is not sufficient to prove that Mr. Pratarelli used

  force to seize and carry his daughter over opposition or resistance.

  Second, the argument appears to hinge on whether Mr. Pratarelli’s

  daughter consented to go with her father. But because Mr.

  Pratarelli had legal custody of his daughter, he could consent for

  her. See id. (“[C]onsent must be given by those having legal custody

  of the child.”).

¶ 25    All this said, we need not speculate as to whether some

  circumstance might exist in which a custodial parent could “forcibly

  seize and carry” his own child within the meaning of the first degree

  kidnapping statute. If such a case exists, it’s not this one.

¶ 26    In the end, we conclude insufficient evidence supported Mr.

  Pratarelli’s first degree kidnapping conviction. We therefore must

  vacate that conviction and sentence.


                                    13
                     C.    Second Degree Kidnapping

¶ 27   Anticipating this outcome, the People argue that because

  second degree kidnapping is a lesser included offense of first degree

  kidnapping, we should remand the case with instructions to “enter

  a conviction for second-degree kidnapping.” In so arguing, the

  People disregard the supreme court’s Armendariz decision, which

  held that a custodial parent may not be convicted of second degree

  kidnapping. See 711 P.2d at 1270.

¶ 28   For this reason, we decline the People’s request to instruct the

  district court to enter a second degree kidnapping conviction in

  place of the vacated first degree kidnapping conviction related to

  Mr. Pratarelli’s daughter.

                           IV.   Bill of Particulars

¶ 29   Mr. Pratarelli next argues that the district court erred by

  denying his motion for a bill of particulars on the first degree

  kidnapping charge. Because we vacate the first degree kidnapping

  conviction, we need not consider this contention.

                      V.    Mental Health Concerns

¶ 30   Last, Mr. Pratarelli contends that the district court impaired

  his ability to investigate “mental condition evidence” and thus


                                      14
  violated his constitutional right to present a defense. More

  specifically, he argues the district court erred by (1) denying his

  second requested continuance to investigate a mental health

  defense; (2) not ordering a mental health examination; and (3)

  restricting his testimony about his memory and cognition. We

  perceive no reversible error.

                          A.      Additional Facts

¶ 31   When Mr. Pratarelli was taken into custody, law enforcement

  allegedly described him as “incoherent” and sent him to a hospital.

  Either during or after his hospitalization, Mr. Pratarelli learned he

  needed heart surgery. To accommodate the needed surgery and

  recovery, the court delayed the case.

¶ 32   Several months after the surgery, the prosecution filed its

  amended information and complaint. At the preliminary hearing on

  the added first degree kidnapping charge, Mr. Pratarelli’s counsel

  raised concerns that the prosecution didn’t disclose a journal Mr.

  Pratarelli had kept while he was in Mexico.

¶ 33   After receiving the journal, Mr. Pratarelli’s counsel moved to

  continue the trial, arguing the journal “rais[ed] some issues

  concerning mental-health questions and that sort of thing.” And


                                      15
  counsel explained that he was “exploring” those issues “at the

  present time.” The court granted the continuance and rescheduled

  the trial four months later.

¶ 34   But less than a month before the rescheduled trial, Mr.

  Pratarelli again moved to continue the trial. This time, he pointed

  to a recent MRI that “confirmed cerebral small vessel disease,”

  which “leads to cognitive decline and decrease in executive

  functioning.” He argued the MRI raised “concerns regarding [Mr.

  Pratarelli’s] ability” to form the requisite culpable mental state.

  After a hearing, the court denied the motion, finding that (1) the

  first continuance “was based on the same information”; (2) the

  court had granted that continuance to allow defense counsel “to try

  to look into those particular issues”; (3) defense counsel was “aware

  from very early on” that Mr. Pratarelli presented to law enforcement

  as confused or “having some sort of problems”; and (4) “there is no

  evidence that [Mr. Pratarelli’s] current condition was in effect at the

  time of the allegations, or that it’s relevant in any way.”

¶ 35   Undeterred, Mr. Pratarelli filed an amended motion to

  continue, attaching a cardiologist’s letter stating that cerebral small

  vessel disease “can lead to cognitive and executive impairment” and


                                     16
  “could lead to possible interference with his reactions to stress.”

  The letter offered no opinions about Mr. Pratarelli’s current mental

  condition or his condition two years earlier, when the charged

  events occurred. The district court once again denied the request,

  finding no evidence that Mr. Pratarelli “was suffering from [a

  mental] condition” when the charged events took place.

¶ 36   Three days before trial, Mr. Pratarelli tried once more, filing a

  second amended motion to continue trial. This motion largely

  reiterated details that he had already presented.

¶ 37   At trial, the court denied the second amended motion for the

  same reasons it denied the others.

                           B.   The Continuance

¶ 38   Mr. Pratarelli first contends the court abused its discretion by

  denying his “motions for a continuance to investigate his mental

  condition and determine whether to pursue a mental condition

  defense.” We disagree.

¶ 39   We will not disturb a district court’s denial of a continuance in

  the absence of an abuse of discretion. People v. Ahuero, 2017 CO

  90, ¶ 11. A court abuses its discretion only if the denial “was

  arbitrary or unreasonable and materially prejudiced the defendant.”


                                    17
  People v. Brown, 2014 CO 25, ¶¶ 19-20 (citation omitted). A

  defendant must demonstrate actual prejudice arising from the

  denial of a continuance. People v. Cook, 2014 COA 33, ¶ 60.

¶ 40   The record shows that defense counsel had time to investigate

  a mental condition defense. First, even before the journal was

  disclosed, defense counsel knew that law enforcement had reported

  that Mr. Pratarelli was “incoherent” when he crossed the border,

  resulting in his hospitalization. Second, after reviewing the journal,

  Mr. Pratarelli’s counsel asked for a continuance specifically because

  the journal “rais[ed] some issues concerning mental-health

  questions,” and counsel represented that he was “exploring” those

  issues at that time. And the district court granted that

  continuance, giving Mr. Pratarelli’s counsel an additional four

  months to investigate Mr. Pratarelli’s mental condition before the

  rescheduled trial date. Third, at most, the MRI showed possible

  future cognitive decline. Even armed with that information, Mr.

  Pratarelli presented nothing in his second (or later) requests for

  continuances about any possible cognitive issues at the time of the

  charged events. Nor did he present any medical opinion that




                                    18
  further testing might reveal such evidence or that additional

  investigation might result in evidence beneficial to his defense.

¶ 41   Thus, Mr. Pratarelli had the opportunity to pursue and

  develop evidence about his mental state. Given this, we can’t

  conclude the district court abused its discretion by denying a

  second continuance.

                         C.     The Examination

¶ 42   Mr. Pratarelli next argues the district court “should have

  ordered an examination of [Mr.] Pratarelli under section 16-8-106[,

  C.R.S. 2019].” We disagree.

¶ 43   When a defendant’s mental condition is offered not to show

  insanity, but instead to negate a culpable mental state, “expert

  testimony concerning the mental condition can be admissible.”

  People v. Wilburn, 2012 CO 21, ¶ 20; see also § 16-8-107(3)(b),

  C.R.S. 2019. To introduce such evidence, the defendant must

  notify the court and prosecution “at the time of arraignment,”

  except that “for good cause shown” the court “shall permit” the

  defendant to “inform the court and prosecution of the intent to

  introduce such evidence” before trial. § 16-8-107(3)(b).




                                    19
¶ 44   But Mr. Pratarelli never notified the court (either at the

  arraignment or in any of his serial motions to continue) that he

  intended to introduce “expert opinion concerning his . . . mental

  condition.” Id. Instead, Mr. Pratarelli asked for additional time —

  beyond the four months he had already received — to continue to

  investigate his “cerebral small vessel disease,” which, he argued,

  “raise[d] concerns” about his “ability to form [the requisite] mental

  state.”

¶ 45   And we are unaware of any authority — and Mr. Pratarelli

  points us to none — requiring a court-ordered mental examination

  to allow a defendant more time to investigate a mental condition

  defense. Thus, the district court did not err by not ordering such

  an examination.

                     D.   Mr. Pratarelli’s Testimony

¶ 46   Without objection, the court admitted the journal into

  evidence. During direct examination, Mr. Pratarelli’s counsel asked

  Mr. Pratarelli why he kept the journal. Mr. Pratarelli responded

  that he kept it because he had “been having a number of cognitive

  and memory problems.” The court sustained the prosecutor’s




                                    20
  objection. Mr. Pratarelli contends the district court erred by

  “restricting this testimony.”

¶ 47   But even if we assume the court erred, the jury had the

  journal itself. And the journal repeatedly documented Mr.

  Pratarelli’s perceived concerns with his memory and cognition. For

  example, with respect to his memory of the charged events, the

  journal included the following entries: “I have no recollection,” “I

  don’t remember,” “I can’t remember,” “why don’t I remember,” “what

  happened to my short term memory,” “so why can’t I remember,”

  “no recollection again,” and “why all the blank memories.”

¶ 48   With respect to his cognition, Mr. Pratarelli journaled: “I don’t

  even know which thoughts are safe [and] which are delusions,

  intrusions, or fragments of grounded thinking. Why can’t I tell the

  difference anymore?” And he asked, “why couldn’t I tell right from

  wrong Monday night,” and “where was my mind and why can’t I get

  it back?”

¶ 49   Thus, the jury knew Mr. Pratarelli’s concerns; indeed, it had

  them documented in his own words. Mr. Pratarelli doesn’t say why

  his cumulative testimony repeating these concerns would have

  made any difference. Thus, to the extent the court erred by


                                     21
  restricting the testimony, the error did not substantially influence

  the verdict or affect the fairness of the trial. See Hagos v. People,

  2012 CO 63, ¶ 12.

                             VI.   Conclusion

¶ 50   We vacate Mr. Pratarelli’s conviction and sentence for first

  degree kidnapping and remand the case to the district court to

  enter a judgment of acquittal on that count. We affirm the

  judgment of conviction for second degree kidnapping (relating to Mr.

  Pratarelli’s wife), use of a stun gun, and third degree assault.

       JUDGE ROMÁN and JUDGE CASEBOLT concur.




                                     22
